Exhibit 23(d)2(9)
Subadvisory Agreement between Phoenix Investment Counsel, Inc.,
and ▇▇▇▇▇▇ Investment Management Inc.
THE PHOENIX EDGE SERIES FUND
SUBADVISORY AGREEMENT
June 23, 2006
▇▇▇▇▇▇ Investment Management, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: SUBADVISORY AGREEMENT
Ladies and Gentlemen:
The Phoenix Edge Series Fund (the "Trust") is a diversified open-end investment
company of the series type registered under the Investment Company Act of 1940
(the "Act"), and is subject to the rules and regulations promulgated thereunder.
The shares of the Trust are offered or may be offered in several series
(collectively, sometimes hereafter referred to as the "Series").
Phoenix Investment Counsel, Inc. (the "Adviser") evaluates and recommends series
subadvisers for the Series and is responsible for the day-to-day management of
the Series.
1. Employment as a Subadviser. The Adviser, being duly authorized, hereby
employs ▇▇▇▇▇▇ Investment Management, Inc. (the "Subadviser") as a
discretionary series subadviser to invest and reinvest the assets of each
of the Series set forth on Schedule F attached hereto (the "Designated
Series") on the terms and conditions set forth herein. The services of the
Subadviser hereunder are not to be deemed exclusive by reason of this
Agreement (and without prejudice to any applicable restrictions set forth
in any other written agreement between the Subadviser or any of its
affiliates, on the one hand, and the Adviser or any of its affiliates, on
the other hand); the Subadviser may (subject to the terms of any such
other written agreements) render services to others and engage in other
activities that do not conflict in any material manner with the
Subadviser's performance hereunder.
2. Acceptance of Employment; Standard of Performance. The Subadviser accepts
its employment as a discretionary series subadviser of each of the
Designated Series and agrees to use its best professional judgment to make
investment decisions for each such Designated Series in accordance with
the provisions of this Agreement and as set forth in Schedule D attached
hereto and made a part hereof.
3. Services of Subadviser. In providing management services to each of the
Designated Series, the Subadviser shall be subject to the investment
objectives, policies and restrictions of the Trust as they apply to such
Designated Series and as set forth in the Trust's then current prospectus
("Prospectus") and statement of additional information ("Statement of
Additional Information") filed with the Securities and Exchange Commission
(the "SEC") as part of the Trust's Registration Statement, as may be
periodically amended and provided to the Subadviser by the Adviser, and to
the investment restrictions set forth in the Act and the Rules thereunder,
to the supervision and control of the Trustees of the Trust (the
"Trustees"), and to instructions from the Adviser. The Subadviser shall
not, without the Trust's prior written approval, effect any transactions
that would cause any Designated Series at the time of the transaction to
be out of compliance with any of such restrictions or policies applicable
to such Designated Series.
4. Transaction Procedures. All series transactions for the Designated Series
shall be consummated by payment to, or delivery by, the custodian(s) from
time to time designated by the Trust (the "Custodian"), or such
depositories or agents as may be designated by the Custodian in writing,
of all cash and/or securities due to or from the Series. The Subadviser
shall not have possession or custody of such cash and/or securities or any
responsibility or liability with respect to such custody. The Subadviser
shall advise the Custodian and confirm in writing to the Trust all
investment orders for the Designated Series placed by it with brokers and
dealers at the time and in the manner set forth in Schedule A hereto (as
amended from time to time). The Trust shall issue to the Custodian such
instructions as may be appropriate in connection with the settlement of
any transaction initiated by the Subadviser. The Trust shall be
responsible for all custodial arrangements and the payment of all
custodial charges and fees, and, upon giving proper instructions to the
Custodian, the Subadviser shall have no responsibility or liability with
respect to custodial arrangements or the act, omissions or other conduct
of the Custodian.
5. Allocation of Portfolio Transactions. The Subadviser shall have authority
and discretion to select brokers and dealers to execute Designated Series
transactions initiated by the Subadviser, and to select the markets in
which the transactions will be executed.
A. In placing orders for the sale and purchase of the Designated
Series' securities for the Trust, the Subadviser's primary
responsibility shall be to seek the best execution of orders at the
most favorable prices. However, this responsibility shall not
obligate the Subadviser to solicit competitive bids for each
transaction or to seek the lowest available commission cost to the
Trust, so long as the Subadviser reasonably believes that the broker
or dealer selected by it can be expected to obtain a "best
execution" market price on the particular transaction and determines
in good faith that the commission cost is reasonable in relation to
the value of the brokerage and research services (as defined in
Section 28(e)(3) of the Securities Exchange Act of 1934) provided by
such broker or dealer to the Subadviser, viewed in terms of either
that particular transaction or of the Subadviser's overall
responsibilities with respect to its clients, including the Trust,
as to which the Subadviser exercises investment discretion,
notwithstanding that the Trust may not be the direct or exclusive
beneficiary of any such services or that another broker may be
willing to charge the Trust a lower commission on the particular
transaction.
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B. The Subadviser may manage other portfolios and expects that the
Trust and other portfolios the Subadviser manages will, from time to
time, purchase or sell the same securities. The Subadviser may
aggregate orders for the purchase or sale of securities on behalf of
the Designated Series with orders on behalf of other portfolios the
Subadviser manages in accordance with the policies with respect to
the execution of portfolio transactions as set forth in the Fund's
then current Prospectus and Statement of Additional Information, as
amended from time to time, and under the Act. Securities purchased
or proceeds of securities sold through aggregated orders shall be
allocated to the account of each portfolio managed by the Subadviser
that bought or sold such securities at the average execution price.
If less than the total of the aggregated orders is executed,
purchased securities or proceeds shall generally be allocated pro
rata among the participating portfolios in proportion to their
planned participation in the aggregated orders.
C. The Subadviser shall not execute any transactions for the Designated
Series with a broker or dealer that is an "affiliated person" (as
defined in the Act) of the Trust, the Subadviser or the Adviser
unless such execution is in compliance with the procedures and
standards adopted by the Board of Trustees, as set forth in the
Fund's then current Prospectus and Statement of Additional
Information, as amended from time to time, and under the Act. The
Trust shall provide the Subadviser with a list of brokers and
dealers that are "affiliated persons" of the Trust or the Adviser
and will notify the Subadviser as promptly as practicable when such
list changes.
D. The Subadviser shall at all times place orders for the sale and
purchase of securities in accordance with the brokerage policy of
the Designated Series as set forth in the Prospectus subject to the
oversight of the Adviser and/or the Trustees.
6. Proxies.
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A. The Subadviser, or a third party designee acting under the authority
and supervision of the Subadviser, shall review all proxy
solicitation materials and be responsible for voting and handling
all proxies in relation to the assets of the Designated Series.
Unless the Adviser or the Trust gives the Subadviser written
instructions to the contrary, the Subadviser or an agent designated
by the Subadviser will, in compliance with the proxy voting
procedures of the Designated Series then in effect, vote or abstain
from voting, all proxies solicited by or with respect to the issuers
of securities in which assets of the Designated Series may be
invested. The Adviser shall cause the Custodian to forward promptly
to the Subadviser all proxies upon receipt, so as to afford the
Subadviser a reasonable amount of time in which to determine how to
vote such proxies. The Subadviser agrees to provide the Adviser in a
timely manner with a record of votes cast containing all of the
voting information required by Form N-PX in an electronic format to
enable the Trust to file Form N-PX as required by Rule 30b1-4 under
the Act.
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B. The Subadviser is authorized to deal with reorganizations and
exchange offers with respect to securities held in the Series in
such manner as the Subadviser deems advisable, unless the Trust or
the Adviser otherwise specifically directs in writing.
7. Prohibited Conduct. In providing the services described in this Agreement,
the Subadviser's responsibility regarding investment advice hereunder is
limited to the Designated Series, and the Subadviser will not consult with
any other investment advisory firm that provides investment advisory
services to the Trust or any other investment company sponsored by Phoenix
Investment Partners, Ltd. Regarding transactions for the Trust in
securities or other assets. The Trust shall provide the Subadviser with a
list of investment companies sponsored by Phoenix Investment Partners,
Ltd. and the Subadviser shall be in breach of the foregoing provision only
if the investment company is included in such a list provided to the
Subadviser prior to such prohibited action. In addition, the Subadviser
shall not, without the prior written consent of the Trust and the Adviser,
delegate any obligation assumed pursuant to this Agreement to any
affiliated or unaffiliated third party.
8. Information and Reports.
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A. The Subadviser shall keep the Trust and the Adviser informed of
developments relating to its duties as Subadviser of which the
Subadviser has, or should have, knowledge that would materially
affect the Designated Series. In this regard, the Subadviser shall
provide the Trust, the Adviser and their respective officers with
such reports concerning the obligations the Subadviser has assumed
under this Agreement as the Trust and the Adviser may from time to
time reasonably request. In addition, prior to each regular meeting
of the Trustees, the Subadviser shall provide the Adviser and the
Trustees with reports regarding the Subadviser's management of the
Designated Series managed by the Subadviser during the most recently
completed quarter which reports: (i) shall include, to the extent
possible, Subadviser's representation that its performance of its
investment management duties hereunder is in compliance with the
Trust's investment objectives and practices, the Act and applicable
rules and regulations under the Act, and the diversification
requirements of Subchapter M and Section 817(h) of the Internal
Revenue Code of 1986, as amended, and (ii) otherwise shall be in
such form as may be mutually agreed upon by the Subadviser and the
Adviser.
B. Each of the Adviser and the Subadviser shall provide the other party
with a list, to the best of the Adviser's or the Subadviser's
respective knowledge, of each affiliated person, as defined under
Section 2(a)(3) of the Act, and any affiliated person of such an
affiliated person, of the Adviser or the Subadviser, as the case may
be, and each of the Adviser and Subadviser agrees promptly to update
such list whenever the Adviser or the Subadviser becomes aware of
any changes that should be added to or deleted from the list of
affiliated persons.
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C. The Subadviser shall also provide the Adviser with any information
reasonably requested by the Adviser regarding its management of the
Designated Series required for any shareholder report, amended
registration statement, or Prospectus supplement to be filed by the
Trust with the SEC.
9. Fees for Services. The compensation of the Subadviser for its services
under this Agreement shall be calculated and paid by the Adviser in
accordance with the attached Schedule C. Pursuant to the investment
advisory agreement between the Trust and the Adviser (the "Advisory
Agreement"), the Adviser is solely responsible for the payment of fees to
the Subadviser.
10. Limitation of Liability. The Subadviser shall not by reason of this
Agreement (and without prejudice to any liabilities the Subadviser may
have pursuant to any other written agreement between the Subadviser or any
of its affiliates, on the one hand, and the Adviser or any of its
affiliates, on the other hand) be liable for any action taken, omitted or
suffered to be taken by it in its best professional judgment, in good
faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement, or in accordance
with specific directions or instructions from the Trust, provided,
however, that such acts or omissions shall not have constituted a material
breach of the investment objectives, policies and restrictions or laws or
regulations applicable to any of the Designated Series as defined in the
Prospectus and Statement of Additional Information or under the Act or
other applicable laws or regulations, as applicable, and that such acts or
omissions shall not have resulted from the Subadviser's willful
misfeasance, bad faith or gross negligence, or reckless disregard of its
obligations and duties hereunder.
11. Confidentiality. Subject to the duty of the Subadviser and the Trust to
comply with applicable law (but without prejudice to any applicable
restrictions set forth in any other written agreement between the
Subadviser or any of its affiliates, on the one hand, and the Adviser or
any of its affiliates, on the other hand), including any demand of any
regulatory or taxing authority having jurisdiction, the Subadviser shall
treat as confidential all information pertaining to the Designated Series
and the actions of the Subadviser and the Trust in respect thereof. The
parties acknowledge and agree that all nonpublic personal information with
regard to shareholders in the Designated Series shall be deemed
proprietary information of the Designated Series of the Trust, and that
the Subadviser shall use that information solely in the performance of its
duties and obligations under this Agreement and shall take reasonable
steps to safeguard the confidentiality of that information. Further, the
Subadviser shall maintain and enforce adequate security procedures with
respect to all materials, records, documents and data relating to any of
its responsibilities pursuant to this Agreement including all means for
the effecting of investment transactions.
12. Assignment. This Agreement shall terminate automatically in the event of
its assignment, as that term is defined in Section 2(a)(4) of the Act. The
Subadviser shall notify the Trust in writing sufficiently in advance of
any proposed change of control, as defined in Section 2(a)(9) of the Act,
as will enable the Trust to consider whether an assignment as
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defined in Section 2(a)(4) of the Act will occur, and to take the steps
necessary to enter into a new subadvisory agreement. The Subadviser will
be liable to the Fund and the Adviser for all administrative costs
resulting from a change of control of the Subadviser, including without
limitation all costs associated with any proxy solicitations, Board
meetings and revisions to the Prospectus or marketing materials. The
understandings and obligations set forth in this Section shall survive the
termination of this Agreement and shall be binding upon the Subadviser and
its successors.
13. Representations, Warranties and Agreements of the Subadviser. The
Subadviser represents, warrants and agrees (without prejudice to any
applicable requirements set forth in any other written agreement between
the Subadviser or any of its affiliates, on the one hand, and the Adviser
or any of its affiliates, on the other hand) that:
A. It is registered as an "Investment Adviser" under the Investment
Advisers Act of 1940, as amended ("Advisers Act").
B. It will maintain, keep current and preserve on behalf of the Trust,
in the manner required or permitted by the Act and the rules
thereunder including the records identified in Schedule B (as
Schedule B may be amended from time to time). The Subadviser agrees
that such records are the property of the Trust, and shall be
surrendered to the Trust or to the Adviser as agent of the Trust
promptly upon request of either. The Trust acknowledges that
Subadviser may retain copies of all records required to meet the
record retention requirements imposed by law and regulation.
C. It shall maintain a written code of ethics (the "Code of Ethics")
complying with the requirements of Rule 204A-1 under the Advisers
Act and Rule 17j-l under the Act and shall provide the Trust and the
Adviser with a copy of the Code of Ethics and evidence of its
adoption. It shall institute procedures reasonably necessary to
prevent Access Persons (as defined under Rule 17j-1) from violating
its Code of Ethics. The Subadviser acknowledges receipt of the
written code of ethics adopted by and on behalf of the Trust. Each
calendar quarter while this Agreement is in effect, a duly
authorized compliance officer of the Subadviser shall certify to the
Trust and to the Adviser that the Subadviser has complied with the
requirements of Rules 204A-1 and 17j-l during the previous calendar
quarter and that there has been no material violation of its Code of
Ethics, or of Rule 17j-1(b), or that any persons covered under its
Code of Ethics has divulged or acted upon any material, non-public
information, as such term is defined under relevant federal
securities laws, and if such a violation has occurred that
appropriate action was taken in response to such violation.
Annually, the Subadviser shall furnish to the Trust and the Adviser
a written report which complies with the requirements of Rule 17j-1
concerning the Subadviser's Code of Ethics to the Trust and the
Adviser. The Subadviser shall permit the Trust and the Adviser to
examine the reports required to be made by the Subadviser under
Rules 204A-1(b) and 17j-l(d)(1) and this subparagraph.
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D. It has adopted and implemented, and throughout the term of this
Agreement shall maintain in effect and implement, policies and
procedures reasonably designed to prevent, detect and correct
violations by the Subadviser and its supervised persons, and, to the
extent the activities of the Subadviser in respect to the Trust
could affect the Trust, by the Trust, of federal securities laws, as
defined in Rule 38a-1 under the Act, and that the Subadviser has
provided the Trust with true and complete copies of its policies and
procedures (or summaries thereof) and related information reasonably
requested by the Trust. The Subadviser agrees to cooperate with
periodic reviews by the Trust's compliance personnel of the
Subadviser's policies and procedures, their operation and
implementation and other compliance matters and to provide to the
Trust from time to time such additional information and
certifications in respect of the Subadviser's policies and
procedures, compliance by the Subadviser with federal securities
laws and related matters and the Trust's compliance personnel may
reasonably request. The Subadviser agrees to promptly notify the
Adviser of any compliance violations which affect the Designated
Series.
E. Reference is hereby made to the Declaration of Trust dated February
18, 1986, as subsequently amended, establishing the Trust, a copy of
which has been filed with the Secretary of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all
amendments thereto so filed with the Secretary of the Commonwealth
of Massachusetts and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The name "The
Phoenix Edge Series Fund" refers to the Trustees under said
Declaration of Trust, as Trustees and not personally, and no
Trustee, shareholder, officer, agent or employee of the Trust shall
be held to any personal liability in connection with the affairs of
the Trust; only the trust estate under said Declaration of Trust is
liable. Without limiting the generality of the foregoing, neither
the Subadviser nor any of its officers, directors, partners,
shareholders or employees shall, under any circumstances, have
recourse or cause or willingly permit recourse to be had directly or
indirectly to any personal, statutory, or other liability of any
shareholder, Trustee, officer, agent or employee of the Trust or of
any successor of the Trust, whether such liability now exists or is
hereafter incurred for claims against the trust estate.
F. It will use all necessary efforts to manage the Designated Series so
that it will satisfy the diversification requirements of Section
817(h) of the Internal Revenue Code of 1986, as amended.
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14. Entire Agreement; Amendment. This Agreement, together with the Schedules
attached hereto, constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes any prior written or
oral agreements pertaining to the subject matter of this Agreement. This
Agreement may be amended at any time, but only by written agreement among
the Subadviser, the Adviser and the Trust, which amendment, other than
amendments to Schedules A, B, D, E and F, is subject to the approval of
the Trustees and the shareholders of the Designated Series as and to the
extent required by the Act.
15. Effective Date; Term. This Agreement shall become effective on the date
set forth on the first page of this Agreement, and shall continue in
effect until November 30, 2007. The Agreement shall continue from year to
year thereafter only so long as its continuance has been specifically
approved at least annually by the Trustees in accordance with Section
15(a) of the Act, and by the majority vote of the disinterested Trustees
in accordance with the requirements of Section 15(c) thereof.
16. Termination. This Agreement may be terminated as to the entire Trust or
any individual Designated Series by any of the Adviser, the Subadviser or
the Trust without penalty hereunder, immediately upon written notice to
the other parties in the event of a material breach of any provision
thereof by a party so notified, or otherwise upon sixty (60) days' written
notice to the other parties, but any such termination shall not affect the
obligations or liabilities of any party hereto to the other parties with
respect to events occurring prior to such termination. In the event that
this Agreement is terminated pursuant to the immediately preceding
sentence with respect to some but not all of the Designated Series, this
Agreement shall remain in full force and effect in accordance with its
terms with respect to each of the remaining Designated Series with respect
to which it has not been terminated.
17. Applicable Law. To the extent that state law is not preempted by the
provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement
shall be administered, construed and enforced according to the laws of the
Commonwealth of Massachusetts.
18. Severability. If any term or condition of this Agreement shall be invalid
or unenforceable to any extent or in any application, then the remainder
of this Agreement shall not be affected thereby, and each and every term
and condition of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
19. Notices. Any notice or other communication required to be given pursuant
to this Agreement shall be deemed duly given if delivered personally or by
overnight delivery service or mailed by certified or registered mail,
return receipt requested and postage prepaid, or sent by facsimile
addressed to the parties at their respective addresses set forth below, or
at such other address as shall be designated by any party in a written
notice to the other party.
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(a) To Phoenix or the Trust at:
Phoenix Investment Counsel, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and Clerk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
(b) To ▇▇▇▇▇▇ Investment Management, Inc. at:
▇▇▇▇▇▇ Investment Management, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
20. Certifications. The Subadviser hereby warrants and represents that it will
provide, to the extent compliant with all applicable laws, the requisite
certifications reasonably requested by the chief executive officer and
chief financial officer of the Trust necessary for those named officers to
fulfill their reporting and certification obligations on Form N-CSR and
Form N-Q as required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 to the extent
that such reporting and certifications relate to the Subadviser's duties
and responsibilities under this Agreement. Subadviser shall provide a
quarterly certification in a form substantially similar to that attached
as Schedule E.
21. Indemnification.
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(a) The Adviser agrees to indemnify and hold harmless the
Subadviser, its officers and directors, and any person who "controls" the
Subadviser, within the meaning of Section 15 of the Securities Act of
1933, as amended (the "1933 Act"), from and against any and all direct or
indirect liabilities, losses or damages (including reasonable attorneys'
fees and costs) suffered by Subadviser arising from, or connected with,
(i) the Adviser's breach of any provision of this Agreement, (ii) willful
misfeasance, bad faith, reckless disregard or gross negligence on the part
of the Adviser or any of its officers, directors or employees in or
relating to the performance of the Adviser's duties and obligations under
this Agreement, (iii) the operation of the Designated Series or the Fund,
or the distribution of shares of the Designated Series or the Fund, (iv)
the performance, non-performance or omission of any third-party service
provider to the Designated Series or (v) any untrue statement or alleged
untrue statement of a material fact contained in the
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Prospectus and Statement of Additional Information, as amended or
supplemented from time to time or promotional materials pertaining or
relating to the Designated Series or any amendment thereof or any
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statement therein not misleading, if such a statement or omission was made
by the Fund other than in reliance upon written information furnished by
the Subadviser or any affiliated person of the Subadviser, expressly for
use in the Fund's registration statement or other than upon verbal
information confirmed by the Subadviser in writing expressly for use in
the Fund's registration statement. The Adviser acknowledges and agrees
that the Subadviser makes no representation or warranty, express or
implied, that any level of performance or investment results will be
achieved by the Designated Series or that the Designated Series will
perform comparably with any standard or index, including other clients of
the Subadviser, whether public or private.
In no case shall the Adviser's indemnity in favor of the Subadviser or any
affiliated person or controlling person of the Subadviser, or any other
provision of this Agreement, be deemed to protect such person against any
liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of
its duties or by reason of its reckless disregard of its obligations and
duties under this Agreement.
(b) The Subadviser agrees to indemnify and hold harmless the
Adviser, its officers and directors, and any person who "controls" the
Adviser, within the meaning of Section 15 of the 1933 Act, from and
against any and all direct or indirect liabilities, losses or damages
(including reasonable attorneys' fees and costs) suffered by Adviser
arising from or connected with (i) the Subadviser's breach of its duties
under this Agreement, (ii) willful misfeasance, bad faith, reckless
disregard or gross negligence on the part of the Subadviser or any of its
officers, directors or employees in the performance of the Subadviser's
duties and obligations under this Agreement or (iii) any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
or Statement of Additional Information, as amended or supplemented from
time to time relating to the Designated Series or any amendment thereof or
any supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statement therein not misleading, if such a statement or omission was
made in reliance upon written information furnished by the Subadviser or
any affiliated person of the Subadviser to the Adviser, the Fund or any
affiliated person of the Adviser or the Fund expressly for use in the
Fund's registration statement, or upon verbal information confirmed by the
Subadviser in writing expressly for use in the Fund's registration
statement; or (iv) to the extent of, and as a result of, the failure of
the Subadviser to execute, or cause to be executed, portfolio transactions
according to the standards and requirements of the Securities Exchange Act
of 1934, the 1940 Act and the Advisers Act.
In no case shall the Subadviser's indemnity in favor of the Adviser or any
affiliated person or controlling person of the Adviser, or any other
provision of this Agreement, be deemed to protect such person against any
liability to which any such person would
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otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement.
22. Receipt of Disclosure Document. The Trust acknowledges receipt, at least
48 hours prior to entering into this Agreement, of a copy of Part II of
the Subadviser's Form ADV containing certain information concerning the
Subadviser and the nature of its business.
23. Counterparts; Fax Signatures. This Agreement may be executed in any number
of counterparts (including executed counterparts delivered and exchanged
by facsimile transmission) with the same effect as if all signing parties
had originally signed the same document, and all counterparts shall be
construed together and shall constitute the same instrument. For all
purposes, signatures delivered and exchanged by facsimile transmission
shall be binding and effective to the same extent as original signatures.
11
THE PHOENIX EDGE SERIES FUND
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
PHOENIX INVESTMENT COUNSEL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Clerk
ACCEPTED:
▇▇▇▇▇▇ INVESTMENT MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Partner and Chief Financial Officer
SCHEDULES: A. Operational Procedures
B. Record Keeping Requirements
C. Fee Schedule
D. Subadviser Functions
E. Form of Sub-Certification
F. Designated Series
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SCHEDULE A
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OPERATIONAL PROCEDURES
In order to minimize operational problems, it will be necessary for a flow of
information to be supplied by Subadviser to State Street and Bank Trust Company
(the "Custodian") and PFPC, Inc., (the "Sub-Accounting Agent") for the Trust.
The Subadviser must furnish the Custodian and the Sub-Accounting Agent with
daily information as to executed trades, or, if no trades are executed, with a
report to that effect, no later than 5 p.m. (Eastern Standard time) on the day
of the trade each day the Trust is open for business. (Subadviser will be
responsible for reimbursement to the Trust for any loss caused by the
Subadviser's failure to comply.) It is permissible to send the necessary
information via facsimile machine to the Custodian and the Sub-Accounting Agent.
Information provided to the Custodian and the Sub-Accounting Agent shall include
the following:
1. Purchase or sale;
2. Security name;
3. CUSIP number, ISIN or Sedols (as applicable);
4. Number of shares and sales price per share or aggregate principal
amount;
5. Executing broker;
6. Settlement agent;
7. Trade date;
8. Settlement date;
9. Aggregate commission or if a net trade;
10. Interest purchased or sold from interest bearing security;
11. Other fees;
12. Net proceeds of the transaction;
13. Exchange where trade was executed; and
14. Trade commission reason: best execution, soft dollar or research.
When opening accounts with brokers for, and in the name of, the Trust, the
account must be a cash account. No margin accounts are to be maintained in the
name of the Trust. Delivery instructions are as specified by the Custodian. The
Custodian will supply the Subadviser daily with a cash availability report via
access to the Custodian website, or by email or by facsimile and the
Sub-Accounting Agent will provide a five day cash projection. This will normally
be done by email or, if email is unavailable, by another form of immediate
written communication, so that the Subadviser will know the amount available for
investment purposes.
13
SCHEDULE B
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RECORDS TO BE MAINTAINED BY THE SUBADVISER
1. (Rule 31a-1(b)(5)) A record of each brokerage order, and all other series
purchases and sales, given by the Subadviser on behalf of the Trust for,
or in connection with, the purchase or sale of securities, whether
executed or unexecuted. Such records shall include:
A. The name of the broker;
B. The terms and conditions of the order and of any modifications or
cancellations thereof;
C. The time of entry or cancellation;
D. The price at which executed;
E. The time of receipt of a report of execution; and
F. The name of the person who placed the order on behalf of the Trust.
2. (Rule 31a-1(b)(9)) A record for each fiscal quarter, completed within ten
(10) days after the end of the quarter, showing specifically the basis or
bases upon which the allocation of orders for the purchase and sale of
series securities to named brokers or dealers was effected, and the
division of brokerage commissions or other compensation on such purchase
and sale orders. Such record:
A. Shall include the consideration given to:
(i) The sale of shares of the Trust by brokers or dealers.
(ii) The supplying of services or benefits by brokers or
dealers to:
(a) The Trust,
(b) The Adviser,
(c) The Subadviser, and
(d) Any person other than the foregoing.
(iii) Any other consideration other than the technical
qualifications of the brokers and dealers as such.
B. Shall show the nature of the services or benefits made available.
C. Shall describe in detail the application of any general or specific
formula or other determinant used in arriving at such allocation of
purchase and sale orders and such division of brokerage commissions
or other compensation.
D. The name of the person responsible for making the determination of
such allocation and such division of brokerage commissions or other
compensation.
3. (Rule 31a-1(b)(10)) A record in the form of an appropriate memorandum
identifying the person or persons, committees or groups authorizing the
purchase or sale of series securities. Where a committee or group makes an
authorization, a record shall be kept of the names of its members who
participate in the authorization. There shall be retained as part of this
record: any memorandum, recommendation or instruction supporting or
authorizing the purchase or sale of series securities and such other
information as is appropriate to support the authorization.*
14
4. (Rule 31a-1(f)) Such accounts, books and other documents as are required
to be maintained by registered investment Advisers by rule adopted under
Section 204 of the Advisers Act, to the extent such records are necessary
or appropriate to record the Subadviser's transactions for the Trust.
5. Records as necessary under Board-approved The Phoenix Edge Series Fund's
valuation policies and procedures.
-------
* Such information might include: current financial information, annual and
quarterly reports, press releases, reports by analysts and from brokerage firms
(including their recommendations, i.e., buy, sell, hold) or any internal reports
or subadviser review.
15
SCHEDULE C
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SUBADVISORY FEE
(a) For services provided hereunder, the Adviser will pay to the
Subadviser, on or before the 10th day of each month, a fee with respect to each
Designated Series, payable in arrears, at the annual rate stated in paragraph
(b) below. The fees payable in respect of a Designated Series shall be prorated
for any month during which this Agreement is in effect for only a portion of the
month with respect to such Designated Series. In computing the fee to be paid to
the Subadviser, the net asset value of the Trust and each Designated Series
shall be valued as set forth in the then-current registration statement of the
Trust.
(b) The fee to be paid by the Adviser to the Subadviser with respect to
each Designated Series shall be at the annual sub-advisory fee rate set forth
opposite such Designated Series' name below; provided, however, that, in the
event there is any reduction after the date of the Transaction Agreement in the
annual advisory fee rate payable by a Designated Series to the Adviser pursuant
to the Advisory Agreement, the annual sub-advisory fee rate payable by the
Adviser to the Subadviser with respect to such Designated Series automatically
shall be reduced by 50% of the amount of such reduction in such annual advisory
fee rate (measured in basis points); and provided, further, that, in the event
the net advisory fee retained by the Adviser with respect to a Designated Series
(for the avoidance of doubt, after taking into account any applicable waivers,
reimbursements or other similar offsets or arrangements applicable to such
Designated Series that are required to be paid by the Adviser or its affiliates)
is less than the annual contractual advisory fee payable by a Designated Series
to the Adviser pursuant to the Advisory Agreement, the fee to be paid by the
Adviser to the Subadviser with respect to such Designated Series automatically
shall be reduced by 50% of the amount of such difference between such
contractual advisory fee rate and such net advisory fee actually retained by the
Adviser with respect to such Designated Series (and the Subadviser agrees
promptly upon request to reimburse to the Adviser any over-payments previously
made pursuant to this Agreement to the extent that such amounts ultimately are
reasonably determined by the Adviser to be in excess of the amounts required to
be paid pursuant hereto after taking into account any annual or other periodic
reimbursements or similar payments required to be made by the Adviser or its
affiliates to the Trust or a Designated Series in connection with any such
waivers, reimbursements or other similar offsets or arrangements):
NAME OF DESIGNATED SERIES ANNUAL SUB-ADVISORY FEE RATE
Phoenix Capital Growth Fund 0.30
16
SCHEDULE D
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SUBADVISER FUNCTIONS
With respect to managing the investment and reinvestment of the
Designated Series' assets, the Subadviser shall provide, at its own expense:
(a) An investment program for each Designated Series consistent with its
investment objectives based upon the development, review and
adjustment of buy/sell strategies approved from time to time by the
Board of Trustees and the Adviser in paragraph 3 of this Subadvisory
Agreement and implementation of that program;
(b) Periodic reports, on at least a quarterly basis, in form and
substance acceptable to the Adviser, including but not limited to
reports with respect to: i) compliance with the Subadviser's Code of
Ethics; ii) compliance with procedures adopted from time to time by
the Trustees of the Trust relative to securities eligible for resale
under Rule 144A under the Securities Act of 1933, as amended; iii)
diversification of each Designated Series' assets in accordance with
the then governing laws and prevailing Prospectus and Statement of
Additional Information pertaining to the Designated Series and
governing laws, regulations, rules and orders; iv) compliance with
governing Fund policies and restrictions relating to the fair
valuation of securities for which market quotations are not readily
available or considered "illiquid" for the purposes of complying
with the Designated Series' limitation on acquisition of illiquid
securities; v) cross transactions conducted pursuant to Rule 17a-7
under the 1940 Act; vi) allocations of brokerage transactions along
with descriptions of the bases for those allocations and the receipt
and treatment of brokerage and research services received, as may be
requested to ensure compliance with Section 28(e) of the Securities
Exchange Act of 1934; vii) any and all other reports reasonably
requested in accordance with or described in this Agreement; and
viii) the implementation of the Designated Series' investment
program, including, without limitation, analysis of Designated
Series performance;
(c) Annual or other periodic reports, in form and substance acceptable
to the Adviser, including but not limited reports with respect to:
(i) analyses of Designated Series performance; (ii) disclosure
related to the portfolio management of the Designated Series and the
Subadviser as may be contained in the Prospectus or marketing
materials as amended, supplemented or otherwise updated from time to
time; (iii) compliance with the Subadviser's Code of Ethics pursuant
to Rule 17j-1; and (iv) such compliance certifications as may be
reasonably requested;
(d) Promptly after filing with the SEC an amendment to its Form ADV, a
copy of such amendment to the Adviser and the Trustees;
17
(e) Attendance by appropriate representatives of the Subadviser at
meetings requested by the Adviser or Trustees at such time(s) and
location(s) as reasonably requested by the Adviser or Trustees;
(f) Notice to the Trustees and the Adviser of the occurrence of any
event which would disqualify the Subadviser from serving as an
investment adviser of an investment company pursuant to Section 9(a)
of the 1940 Act or otherwise;
(g) Provide reasonable assistance in the valuation of securities
including the participation of appropriate representatives at fair
valuation committee meetings; and
(h) Supply the Fund's independent accountants, PricewaterhouseCoopers
LLP, or any successor accountant for the Fund, any information that
it may reasonably request in connection with the Fund.
18
SCHEDULE E
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FORM OF SUB-CERTIFICATION
To:
Re: Form N-CSR and Form N-Q Certification for the [Name of Designated Series].
From: [Name of Subadviser]
Representations in support of Investment Company Act Rule 30b1-5
certifications of Form N-CSR and Form N-Q.
[Name of Designated Series]
In connection with your certification responsibility under Rule 30b1-5 and
Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, I have reviewed
the following information presented for the period ended [Date of
Reporting Period] (the "Reports") which forms part of the N-CSR or N-Q, as
applicable, for the [Trust.
Schedule of Investments (the "Reports")
Our organization has designed, implemented and maintained internal controls and
procedures, designed for the purpose of ensuring the accuracy and completeness
of relevant portfolio trade data transmitted to those responsible for the
preparation of the Schedule of Investments. As of the date of this certification
there have been no material modifications to these internal controls and
procedures.
In addition, our organization has:
a. Designed such internal controls and procedures to ensure that material
information is made known to the appropriate groups responsible for
servicing the above-mentioned mutual funds.
b. Evaluated the effectiveness of our internal controls and procedures, as
of a date within 90 days prior to the date of this certification and we
have concluded that such controls and procedures are effective.
c. In addition, to the best of my knowledge there has been no fraud,
whether, or not material, that involves our organization's management
or other employees who have a significant role in our organization's
control and procedures as they relate to our duties as subadviser to
the Trust.
I have read the draft of the Reports which I understand to be current as of
[Date of Reporting Period] and based on my knowledge, such drafts of the Reports
do not, with respect to the Trust, contain any untrue statement of a material
fact or omit to state a material fact necessary to make
19
the information contained therein, in light of the circumstances under which
such information is resented, not misleading with respect to the period covered
by such draft Reports.
I have disclosed, based on my most recent evaluation, to the Trust's Chief
Accounting Officer:
a. All significant changes, deficiencies and material weakness, if any, in
the design or operation of the Subadviser's internal controls and
procedures which could adversely affect the Adviser's ability to
record, process, summarize and report financial data with respect to
the Trust in a timely fashion;
b. Any fraud, whether or not material, that involves the Subadviser's
management or other procedures for financial reporting as they relate
to our duties as Subadviser to the Trust.
I certify that to the best of my knowledge:
a. The Subadviser's Portfolio Manager(s) has/have complied with the
restrictions and reporting requirements of the Code of Ethics (the
"Code"). The term Portfolio Manager is as defined in the Code.
b. The Subadviser has complied with the Prospectus and Statement of
Additional Information of the Trust and the Policies and Procedures of
the Trust as adopted by the Trust's Board of Trustees to the extent
they relate to our duties as Subadviser to the Trust.
c. I have no knowledge of any compliance violations except as disclosed in
writing to the Phoenix Compliance Department by me or by the
Subadviser's compliance administrator.
d. The Subadviser has complied with the rules and regulations of the 33
Act and 40 Act, and such other regulations as may apply to the extent
those rules and regulations pertain to the responsibilities of the
Subadviser with respect to the Trust as outlined above.
This certification relates solely to the Trust named above and may not be relied
upon by any other fund or entity.
The Subadviser does not maintain the official books and records of the above
Trust. The Subadviser's records are based on its own portfolio management
system, a record-keeping system that is not intended to serve as the Trust's
official accounting system. The Subadviser is not responsible for the
preparation of the Reports.
----------------------------------- -----------------------------------
[Name of Authorized Signature] Date
20
SCHEDULE F
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DESIGNATED SERIES
Phoenix Capital Growth Fund
21