EXHIBIT 5.11
SUBADVISORY AGREEMENT
SUBADVISORY AGREEMENT
[PHOENIX EDGE SERIES FUND]
BANKERS TRUST COMPANY December 15, ▇▇▇▇
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WHEREAS, the Phoenix Edge Series Fund (the "Fund") 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;
WHEREAS, the shares of the Fund are offered or may be offered in
several series, including the Phoenix-Bankers Fund Dow 30 Series (hereafter
referred to as the "Series");
WHEREAS, the Fund has entered into an Advisory Agreement with Phoenix
Variable Advisors (the "Advisor"), dated December 15, 1999 (the "Advisory
Agreement"), pursuant to which the Advisor evaluates and recommends series
advisors for the Series and is responsible for the day-to-day management of the
Series;
WHEREAS, the Advisor desires to retain Bankers Trust Company, a banking
corporation organized under the laws of the State of New York (the "Subadvisor")
to furnish portfolio management services for the Series, and the Subadvisor is
willing to furnish such services; and
WHEREAS, the Trustees of the Fund (the"Trustees"), including a majority
of the Trustees who are not "interested persons," as such term in defined in the
Act, of any party to this Agreement, has consented to such Agreement;
NOW, THEREFORE, the Advisor and the Subadvisor agree as follows:
1. Employment as a Subadvisor. The Advisor, being duly authorized by the
terms of the Advisory Agreement, hereby employs the Subadvisor to
invest and reinvest the assets of the Series on the terms and
conditions set forth herein. The services of the Subadvisor hereunder
are not to be deemed exclusive; the Subadvisor may render services to
others and engage in other activities which do not conflict in any
material manner in the Subadvisor's performance hereunder.
2. Acceptance of Employment; Standard of Performance. The Subadvisor
accepts its employment as a subadvisor to the Advisor and agrees to use
its best professional judgment to make investment decisions for the
Series in accordance with the provisions of this Agreement.
3. Services of Subadvisor.
(a) The Subadvisor shall provide the services set forth herein
and in Schedule A attached hereto and made a part hereof.
In providing management services to the Series, the
Subadvisor shall be subject to the investment objectives,
policies and restrictions of the Fund as they apply to the
Series and as set forth in the Fund's then current
Prospectus and Statement of Additional Information (as the
same may be modified from time to time), and to the Fund's
Agreement and Declaration of
Fund, to the investment and other restrictions set forth
in the Act, the Securities Act of 1933 and the Internal
Revenue Code and the rules and regulations thereunder, and
to the supervision and control of the Funds of the Fund
(the "Funds"). The Subadvisor shall not, without the
Advisor's prior approval, effect any transactions which
would cause the Series at the time of the transaction to
be out of compliance with any of such restrictions or
policies. The Subadvisor will keep the Fund and the
Advisor informed of developments materially affecting the
Fund, and will, on its own initiative, furnish the Fund
and the Advisor from time to time with whatever
information the Sub-Advisor believes is appropriate for
this purpose.
(b) Subject at all times to the limitations set forth in
subparagraph 3(a) above, the Subadvisor shall have full
authority at all times with respect to the management of
the Series, including, but not limited to, authority to
give written or oral instructions to various
broker/dealers, banks or other agents; to bind and
obligate the Fund to and for the carrying out of
contracts, arrangements, or transactions which shall be
entered into by the Subadvisor on the Fund's behalf with
or through such broker/dealers, banks or other agents; to
direct the purchase and sale of any securities; and
generally to do and take all action necessary in
connection with the Series, or considered desirable by the
Subadvisor with respect thereto. The Subadvisor may
maintain uninvested cash balances in the Series as it
shall deem reasonable without incurring any liability for
the payment of interest thereon.
4. Expenses. It is understood that the Fund will pay all of its expenses
other than those expressly stated to be payable by the Subadvisor
hereunder or by the Advisor pursuant to the Advisory Agreement.
Expenses paid by the Fund include, but are not limited to ALL EXPENSES
INCURRED IN THE OPERATION OF THE FUND AND ANY OFFERING OF ITS SHARES,
INCLUDING, AMONG OTHERS, INTEREST, TAXES, BROKERAGE FEES AND
COMMISSIONS, FEES OF TRUSTEES, EXPENSES OF TRUSTEES' AND SHAREHOLDERS'
MEETINGS INCLUDING THE COST OF PRINTING AND MAILING PROXIES, EXPENSES
OF INSURANCE PREMIUMS FOR FIDELITY AND OTHER COVERAGE, EXPENSES OF
REPURCHASE AND REDEMPTION OF SHARES, CERTAIN EXPENSES OF ISSUE AND SALE
OF SHARES, ASSOCIATION MEMBERSHIP DUES, CHARGES OF CUSTODIANS, TRANSFER
AGENTS, DIVIDEND DISBURSING AGENTS AND FINANCIAL AGENTS, REGISTERING
AND MAINTAINING THE REGISTRATION OF THE FUND AND ITS SHARES WITH THE
SEC, PREPARING AND MAILING PROSPECTUSES AND REPORTS TO SHAREHOLDERS,
BOOKKEEPING, AUDITING AND LEGAL EXPENSES.
The Subadvisor shall furnish at its own expense, or pay the expenses of
the Advisor, for the following:
(a) Office facilities, including office space, furniture and
equipment utilized by its employees, in the fulfillment of
Subadvisor's responsibilities hereunder;
(b) Personnel necessary to perform the functions required to
manage the investment and reinvestment of each Series'
assets (including those required for research, statistical
and investment work), and to fulfill the other functions
of the Subadvisor hereunder; and
(c) Personnel to serve without salaries for the Fund as agents
of the Fund. The Subadvisor need not provide personnel to
perform, or pay the expenses of the Advisor for, services
customarily performed for an open-end management
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investment company by its national distributor, custodian,
financial agent, transfer agent, auditors and legal
counsel.
5. Transaction Procedures. All transactions for the Series will be
consummated by payment to, or delivery by, the Custodian(s) from time
to time designated by the Fund (the "Custodian"), or such depositories
or agents as may be designated by the Custodian pursuant to its
agreement with the Fund (the "Custodian Agreement"), of all cash and/or
securities due to or from the Series. The Subadvisor shall not have
possession or custody of such cash and/or securities or any
responsibility or liability with respect to such custody. The
Subadvisor shall advise the Custodian and confirm in writing to the
Fund all investment orders for the Series placed by it with brokers and
dealers at the time and in the manner set forth in the Custodian
Agreement and in Schedule B hereto (as amended from time to time). The
Fund shall issue to the Custodian such instructions as may be
appropriate in connection with the settlement of any transaction
initiated by the Subadvisor. The Fund 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
Subadvisor shall have no responsibility or liability with respect to
custodial arrangements or the acts, omissions or other conduct of the
Custodian.
6. Allocation of Brokerage. The Subadvisor shall have authority and
discretion to select brokers and dealers to execute Series transactions
initiated by the Subadvisor, and to select the markets on or in which
the transactions will be executed.
A. In placing orders for the sale and purchase of Series securities for
the Fund, the Subadvisor's primary responsibility shall be to seek the
best execution of orders at the most favorable prices. However, this
responsibility shall not obligate the Subadvisor to solicit competitive
bids for each transaction or to seek the lowest available commission
cost to the Fund, so long as the Subadvisor reasonably believes that
the broker or dealer selected by it can be expected to obtain "best
execution" 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 Subadvisor, viewed in terms of either that particular transaction
or of the Subadvisor's overall responsibilities with respect to its
clients, including the Fund, as to which the Subadvisor exercises
investment discretion, notwithstanding that the Fund may not be the
direct or exclusive beneficiary of any such services or that another
broker may be willing to charge the Fund a lower commission on the
particular transaction.
B. Subject to the requirements of paragraph A above, the Advisor shall
have the right to require that transactions giving rise to brokerage
commissions, in an amount to be agreed upon by the Advisor and the
Subadvisor, shall be executed by brokers and dealers that provide
brokerage or research services to the Fund or that will be of value to
the Fund in the management of its assets, which services and
relationship may, but need not, be of direct or exclusive benefit to
the Series. In addition, subject to paragraph A above, the applicable
Conduct Rules of the National Association of Securities Dealers, Inc.
and other applicable law, the Fund shall have the right to request that
transactions be executed by brokers and dealers by or through whom
sales of shares of the Fund are made.
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C. On occasions when the Subadvisor deems the purchase or sale of a
security to be in the best interests of the Fund as well as other
customers, the Subadvisor may, to the extent permitted by applicable
law and regulations, but shall not be obligated to, aggregate the
securities to be sold or purchased in order to obtain the best
execution or lower brokerage commissions, if any. In such event,
allocation of the securities so sold or purchased, as well as the
expenses incurred in the transaction, will be made by the Subadvisor in
the manner it considers to be the most equitable and consistent with
its fiduciary obligations to the Fund and, if applicable, to such other
customers.
D. Affiliates of the Subadvisor may be dealers in equity and debt
securities, and from time to time may be underwriters or dealers of
securities that may be bought for, held in, or sold from the Series.
With respect to each such instance, the Subadvisor represents that all
transactions which are effected for the Series will be made solely in
furtherance of their respective investment goals, and the fact that the
Subadvisor's affiliate is acting as an underwriter or dealer will not
be a factor in the investment decision. The Subadvisor agrees that it
will not purchase securities underwritten by itself or affiliates of
the Fund, except as permitted by the Act and the Fund's procedures.
7. Fees for Services. The compensation of the Subadvisor for its services
under this Agreement shall be calculated and paid by the Advisor in
accordance with the attached Schedule C. In computing the fee, the net
asset value of the Series will be calculated as described in the
Prospectus and Statement of Additional Information. Pursuant to the
Advisory Agreement , the Advisor is solely responsible for the payment
of fees to the Subadvisor.
8. Limitation of Liability. The Subadvisor shall not 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 Fund, provided, however, that such acts or
omissions shall not have constituted a breach of the investment
objectives, policies and restrictions applicable to the Series and that
such acts or omissions shall not have resulted from the Subadvisor's
willful misfeasance, bad faith or gross negligence, a violation of the
standard of care established by and applicable to the Subadvisor in its
actions under this Agreement or a breach of its duty or of its
obligations hereunder (provided, however, that the foregoing shall not
be construed to protect the Subadvisor from liability under the Act,
other federal or state securities laws or common law).
The Advisor shall hold harmless and indemnify the Subadvisor for any
loss, liability, cost, damage or expense (including reasonable
attorneys fees and costs) arising from any claim or demand by any past
or present shareholder of the Series or the Fund that is not based upon
the obligations of the Subadvisor with respect to the Series under this
Agreement.
9. Confidentiality. Subject to the duty of the Subadvisor to comply with
applicable law, including any demand of any regulatory or taxing
authority having jurisdiction, the parties hereto shall treat as
confidential all information pertaining to the Series and the actions
of the Subadvisor and the Fund in respect thereof.
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10. 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 Subadvisor shall notify the Advisor 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 Advisor to consider whether an
assignment as defined in Section 2(a)(4) of the Act will occur and to
take the steps it deems necessary.
11. Representations, Warranties and Agreements of the Subadvisor. The
Subadvisor represents, warrants and agrees that:
A. It is registered as an "investment advisor" under the Investment
Advisors Act of 1940 ("Advisors Act"); or is a "bank" as defined in the
Advisors Act.
B. It will maintain the records and information required by Rule 31a-1
under the Act respecting its activities with respect to the Series, and
such other records with respect thereto relating to the services the
Subadvisor provides under this Agreement as may be required in future
by applicable SEC rules, and shall retain such information for such
times and in such manner as required by applicable rules, including
Rule 31a-2 under the 1940 Act.
C. It has a written code of ethics complying with the requirements of
Rule 17j-1 under the Act and will provide the Advisor with a copy of
the code of ethics and evidence of its adoption. Subadvisor
acknowledges receipt of the written code of ethics adopted by and on
behalf of the Fund (the "Code of Ethics"). Within 10 days of the end of
each calendar quarter while this Agreement is in effect, a duly
authorized compliance officer of the Subadvisor shall certify to the
Fund and to the Advisor that the Subadvisor has complied with the
requirements of Rule 17j-1 during the previous calendar quarter and
that there has been no violation of its code of ethics, or the Code of
Ethics, or if such a violation has occurred, that appropriate action
was taken in response to such violation. The Subadvisor shall permit
the Fund and Advisor to examine the reports required to be made by the
Subadvisor under Rule 17j-1(c)(1) and this subparagraph.
D. It will use all necessary efforts to manage the Series so that the
Fund will qualify as a regulated investment company under Subchapter M
of the Internal Revenue Code.
E. It will furnish the Advisor a copy of its Form ADV as filed with the
Securities and Exchange Commission, if such form is required to be
filed by the Subadvisor.
F. The Subadvisor will be responsible for the preparation and filing of
Schedule 13G and Form 13F with respect to the assets of the Series.
G. Reference is hereby made to the Declaration of Trust dated February
18, 1986, establishing the Fund, 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 or
hereafter so filed with the Secretary of the Commonwealth of
Massachusetts and elsewhere as required by law. The name Phoenix Edge
Series Fund refers to the Trustees under said Declaration of Fund, as
Trustees and not personally, and no Trustee, shareholder, officer,
agent or employee of the Fund shall be held to any personal liability
in connection with the affairs of the Fund; only the Fund estate under
said Declaration of Trust is liable. Without limiting the generality of
the foregoing, neither the Subadvisor nor any of its
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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 Fund or of any successor of the Fund, whether such liability now
exists or is hereafter incurred for claims against the trust estate.
12. Representations, Warranties and Agreements of the Advisor. The Advisor
represents, warrants and agrees that:
A. It has the power and has taken all necessary action, and has
obtained all necessary licenses, authorizations and approvals, to
execute this Agreement, which constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms.
B. It is registered as an "investment advisor" under the Investment
Advisors Act of 1940 ("Advisors Act").
C. It will deliver to the Subadvisor true and complete copies of the
Prospectus, Statement of Additional Information, Advisory Agreement ,
Fund's Code of Ethics and such other documents or instruments governing
the investments and investment policies and practices of the Series,
and during the term of this Agreement will promptly deliver to the
Subadvisor true and complete copies of all documents and instruments
supplementing, amending, or otherwise becoming such Fund Documents
before or at the time they become effective.
D. It will deliver to the Subadviser any limitations imposed upon the
Fund as a result of relevant diversification requirements under the
provisions of Section 817(h) of the Internal Revenue Code of 1986, as
amended.
E. It will furnish or otherwise make available to the Subadvisor such
other information relating to the business affairs of the Fund as the
Subadvisor at any time, or from time to time, reasonably requests in
order to discharge its obligations hereunder.
13. Reports. The Subadvisor shall provide the Advisor such periodic and
special reports as the Advisor may reasonably request. The Subadvisor
agrees that such records are the property of the Fund, and shall be
made reasonably available for inspections, and by the Fund or to the
Advisor as agent of the Fund, and promptly upon request surrendered to
either. The Subadvisor is authorized to supply the Fund's independent
accountants, PricewaterhouseCoopers LLP, or any successor accountant
for the Fund, any information that they may request in connection with
the Fund.
14. Proxies. Subadviser will cooperate (in establishing proxy handling
procedures acceptable to Advisor) with such authorized representative
of the Fund granted authority to vote proxies solicited by or with
respect to the issuers of securities in which Fund assets are invested.
15. Recordkeeping. The Subadviser will assist the recordkeeping agent for
the Fund in determining or confirming the value of any securities or
other assets in the Series for which the recordkeeping agent seeks
assistance from or identifies for review by the Advisor. The parties
agree that,
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consistent with applicable law, the Advisor will not bear
responsibility for the determination of value of any such securities or
other assets.
16. Use of Subadvisor's Name. Neither the Fund nor the Advisor shall use
the name of the Subadvisor, or any affiliate of the Subadvisor, in any
prospectus, advertisement, sales literature or other communication to
the public except in accordance with such policies and procedures as
shall be mutually agreed to in writing be the Subadvisor and the Fund
or Advisor.
17. Amendment. This Agreement may be amended at any time, but only by
written agreement between the Subadvisor and the Advisor, which
amendment, other than amendments to Schedules B and D, is subject to
the approval of the Trustees and the Shareholders of the Fund as and to
the extent required by the Act.
18. Effective Date; Term. This Agreement shall become effective on the date
set forth on the first page of this Agreement. Unless terminated as
hereinafter provided, this Agreement shall remain in full force and
effect until December 31, 2000, and 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.
19. Notices. All notices or other communications required of permitted to
be given hereunder shall be in writing and shall be delivered or sent
by pre-paid first class letter post to the following addresses or to
such other address as the relevant addressee shall hereafter notify for
such purpose to the others by notice in writing and shall be deemed to
have been given at the time of delivery.
If to the Advisor: PHOENIX VARIABLE ADVISORS
One American Row
Hartford, Connecticut
Attention: _________________
If to the Subadviser: BANKERS TRUST COMPANY
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Attention: _Lawrence ▇. ▇▇▇▇▇
Director________________
20. Termination. This Agreement may be terminated by either party, without
penalty, immediately upon written notice to the other party in the
event of a breach of any provision thereof by the party so notified, or
otherwise, upon sixty (60) days' written notice to the other party, but
any such termination shall not affect the status, obligations or
liabilities of either party hereto to the other party.
21. 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.
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22. 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.
PHOENIX VARIABLE ADVISORS
By: _______________________
Title:
ACCEPTED:
BANKERS TRUST COMPANY
By: ______________________
Title:
SCHEDULES: A. Subadvisor Functions
B. Operational Procedures
C. Fee Schedule
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SCHEDULE A
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SUBADVISOR FUNCTIONS
With respect to managing the investment and reinvestment of the Series
assets, the Subadvisor shall provide, at its own expense:
(a) An investment program for the 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 Advisor;
(b) Implementation of the investment program for the Series based
upon the foregoing criteria;
(c) Quarterly reports, in form and substance acceptable to the
Advisor, with respect to: i) compliance with the Code of
Ethics and the Subadvisor's code of ethics; ii) compliance
with procedures adopted from time to time by the Trustees of
the Fund relative to securities eligible for resale under Rule
144A under the Securities Act of 1933, as amended; iii)
diversification of Series assets in accordance with the then
prevailing prospectus and statement of additional information
pertaining to the Series and governing laws; iv) compliance
with governing 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 Series limitation on acquisition of
illiquid securities; v) any and all other reports reasonably
requested in accordance with or described in this Agreement;
and, vi) the implementation of the Series investment program,
including, without limitation, analysis of Series performance;
(d) Attendance by appropriate representatives of the Subadvisor at
meetings requested by the Advisor or Trustees at such time(s)
and location(s) as reasonably requested by the Advisor or
Trustees; and
(e) Participation, overall assistance and support in marketing the
Series, including, without limitation, meetings with pension
fund representatives, broker/dealers who have a sales
agreement with Phoenix Equity Planning Corporation, and other
parties requested by the Advisor.
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SCHEDULE B
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OPERATIONAL PROCEDURES
In order to minimize operational problems, it will be necessary for a flow of
information to be supplied to [NAME OF CUSTODIAN] (the "Custodian"), the
custodian for the Fund.
The Subadvisor must furnish the Custodian 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 (confirmation
received from broker). The necessary information can be sent via SWIFT machine
to the Custodian. Information provided to the Custodian shall include the
following:
1. Purchase or sale;
2. Security name;
3. CUSIP number (if applicable);
4. Number of shares and sales price per share;
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. Identified tax lot (if applicable).
When opening accounts with brokers for, and in the name of, the Fund, the
account must be a cash account. Except with respect to Subadvisor's future
transactions, no margin accounts are to be maintained in the name of the Fund.
Delivery instructions are as specified by the Custodian. The Custodian will
supply the Subadvisor daily with a cash availability report. This will normally
be done by facsimile so that the Subadvisor will know the amount available for
investment purposes.
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SCHEDULE C
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SUBADVISORY FEE
For services provided to the Fund pursuant to paragraph 3 hereof, the
Advisor will pay to the Subadvisor, on or before the 10th day of each month, a
fee, payable in arrears, at the annual rate of:
0.10% of the average aggregate daily net asset value of the Series;
subject to a minimum fee of $100,000.
The fees shall be prorated for any month during which this agreement is in
effect for only a portion of the month. In computing the fee to be paid to the
Subadvisor, the net asset value of the Fund and each Series shall be valued as
set forth in the then current registration statement of the Fund.
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