ATTACHED ARE THREE NEW ADVISORY AGREEMENTS. WITH RESPECT TO
PHOENIX-▇▇▇▇▇▇▇▇ FUNDS ATTACHED ARE THE FOLLOWING EXHIBITS 77Q1(E):
(1) Amendment to Investment Advisory Agreement made as of the 1st day of
May, 2005 amending the Investment Advisory Agreement made as of September
3, 1997 by and between Phoenix-▇▇▇▇▇▇▇▇ Funds and ▇▇▇▇▇▇▇▇ Asset
Management.
(2) Investment Advisory Agreement effective as of May 1, 2005 by and
between Phoenix-▇▇▇▇▇▇▇▇ Funds and Phoenix Investment Counsel, Inc.
pertaining to the Phoenix Balanced Return Fund.
(3) Subadvisory Agreement between Phoenix-▇▇▇▇▇▇▇▇ Funds and ▇▇▇▇▇▇▇▇
Asset Management dated May 1, 2005 pertaining to the equity portfolio
holdings of the Phoenix Balanced Return Fund.
(1)
AMENDMENT
TO
INVESTMENT ADVISORY AGREEMENT
THIS AMENDMENT made as of the 1st day of May, 2005 amends
that certain Investment Advisory Agreement made as of September
3, 1997 (the "Agreement") by and between PHOENIX-ENGEMANN FUNDS
(formerly known as PASADENA INVESTMENT TRUST), a Delaware
statutory trust (the "Trust") and ▇▇▇▇▇▇▇▇ ASSET MANAGEMENT
(formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ASSOCIATES, INC.), a
California Corporation (the "Adviser") as follows:
1. Appendix A to the Agreement is hereby deleted in its
entirety and Appendix A attached hereto is substituted in
its place.
2. Appendix B to the Agreement is hereby deleted in its
entirety and Appendix B attached hereto is substituted in
its place.
2. Except as expressly amended hereby, all provisions of the
Agreement shall remain in full force and effect and are
unchanged in all other respects. All initial capitalized
terms used herein shall have such meanings as ascribed
thereto in the Agreement, as amended. All terms and
phrases in quotations shall have such meaning as ascribed
thereto in the Investment Company Act of 1940, as amended.
3. This Amendment shall become effective on the date first
accepted by the Adviser which date is set forth on the
signature page hereof.
4. This Amendment may be executed in one or more counterparts,
each of which shall be deemed to be an original and, all of
which, when taken together, shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto intending to be
legally bound have caused this Agreement to be executed by their
duly authorized officers of other representatives.
Phoenix-▇▇▇▇▇▇▇▇ Funds
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇ Asset Management
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer
and Secretary
APPENDIX A
List of Funds subject to Investment Management Agreement:
Phoenix-Engemann Focus Growth Fund (formerly known as Pasadena
Growth Fund)
Phoenix-Engemann Nifty Fifty Fund (formerly known as Pasadena
Nifty Fifty Fund)
Phoenix-Engemann Small-Cap Fund ( formerly known as Phoenix
Engemann Small & Mid-Cap Growth Fund and Pasadena Small &
Mid Cap Growth Fund)
APPENDIX B
Phoenix-▇▇▇▇▇▇▇▇ Focus Growth Fund
First $50 Million 0.90%
Next $450 Million 0.80%
Over $500 Million 0.70%
Phoenix-▇▇▇▇▇▇▇▇ Nifty Fifty Fund
First $50 Million 0.90%
Next $450 Million 0.80%
Over $500 Million 0.70%
Phoenix-▇▇▇▇▇▇▇▇ Small-Cap Growth Fund
First $50 Million 1.00%
Next $450 Million 0.90%
Over $500 Million 0.80%
(2)
PHOENIX-▇▇▇▇▇▇▇▇ FUNDS
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT, effective as of the 1st day of May, 2005
(the "Contract Date") by and between Phoenix-▇▇▇▇▇▇▇▇ Funds, a
Delaware business trust (the "Trust") and Phoenix Investment
Counsel, Inc., a Connecticut corporation (the "Adviser").
WITNESSETH THAT:
1. The Trust hereby appoints the Adviser to act as
investment adviser to the Trust on behalf of the portfolio
series of the Trust established and designated by the Board of
Trustees of the Trust (the "Trustees") on or before the date
hereof, as listed on attached Schedule A (collectively, the
"Existing Series"), for the period and on the terms set forth
herein. The Adviser accepts such appointment and agrees to
render the services described in this Agreement for the
compensation herein provided.
2. In the event that the Trustees desire to retain the
Adviser to render investment advisory services hereunder with
respect to one or more of the additional series (the "Additional
Series"), by agreement in writing, the Trust and the Adviser may
agree to amend Schedule A to include such Additional Series,
whereupon such Additional Series shall become subject to the
terms and conditions of this Agreement.
3. The Adviser shall furnish continuously an investment
program for the portfolio of the Existing Series and the
portfolio of any Additional Series which may become subject to
the terms and conditions set forth herein (sometimes
collectively referred to as the "Series") and shall manage the
investment and reinvestment of the assets of the portfolio of
each Series, subject at all times to the supervision of the
Trustees.
4. With respect to managing the investment and
reinvestment of the portfolio of the Series' assets, the Adviser
shall provide, at its own expense:
(a) Investment research, advice and supervision;
(b) An investment program for each Series consistent
with its investment objectives, policies and procedures;
(c) Implementation of the investment program for each
Series including the purchase and sale of securities;
(d) Implementation of an investment program designed
to manage cash, cash equivalents and short-term investments
for a Series with respect to assets designated from time to
time to be managed by a subadviser to such Series;
(e) Advice and assistance on the general operations
of the Trust; and
(f) Regular reports to the Trustees on the implementation
of each Series' investment program.
5. The Adviser shall, for all purposes herein, be deemed
to be an independent contractor.
6. The Adviser shall furnish at its own expense, or pay
the expenses of the Trust, for the following:
(a) Office facilities, including office space,
furniture and equipment;
(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);
(c) Except as otherwise approved by the Board,
personnel to serve without salaries from the Trust as
officers or agents of the Trust. The Adviser need not
provide personnel to perform, or pay the expenses of the
Trust for, services customarily performed for an open-end
management investment company by its national distributor,
custodian, financial agent, transfer agent, registrar,
dividend disbursing agent, auditors and legal counsel;
(d) Compensation and expenses, if any, of the
Trustees who are also full-time employees of the Adviser or
any of its affiliates; and
(e) Any subadviser recommended by the Adviser and
appointed to act on behalf of the Trust.
7. All costs and expenses not specifically enumerated
herein as payable by the Adviser shall be paid by the Trust.
Such expenses shall include, but shall not be limited to, all
expenses (other than those specifically referred to as being
borne by the Adviser) incurred in the operation of the Trust and
any public offering of its shares, including, among others,
interest, taxes, brokerage fees and commissions, fees of
Trustees who are not full-time employees of the Adviser or any
of its affiliates, expenses of Trustees' and shareholders'
meetings including the cost of printing and mailing proxies,
expenses of Adviser personnel attending Trustee meetings as
required, expenses of insurance premiums for fidelity and other
coverage, expenses of repurchase and redemption of shares,
expenses of issue and sale of shares (to the extent not borne by
its national distributor under its agreement with the Trust),
expenses of printing and mailing stock certificates representing
shares of the Trust, association membership dues, charges of
custodians, transfer agents, dividend disbursing agents and
financial agents, bookkeeping, auditing and legal expenses. The
Trust will also pay the fees and bear the expense of registering
and maintaining the registration of the Trust and its shares
with the Securities and Exchange Commission and registering or
qualifying its shares under state or other securities laws and
the expense of preparing and mailing prospectuses and reports to
shareholders. Additionally, if authorized by the Trustees, the
Trust shall pay for extraordinary expenses and expenses of a
non-recurring nature which may include, but not be limited to
the reasonable and proportionate cost of any reorganization or
acquisition of assets and the cost of legal proceedings to which
the Trust is a party.
8. The Adviser shall adhere to all applicable policies
and procedures as adopted from time to time by the Trustees,
including but not limited to the following:
(a) Code of Ethics. The Adviser shall adopt a Code
of Ethics designed to prevent "access persons" (as defined
therein in accordance with Rule 17j-1 under the Investment
Company Act of 1940 (the "Investment Company Act")) from
engaging in fraudulent acts or transactions that are, or
have the potential of being viewed as, a conflict of
interest, and shall monitor for compliance with its Code of
Ethics and report any violations to the Trust's Compliance
Officer.
(b) Policy with Respect to Brokerage Allocation. The
Adviser shall have full trading discretion in selecting
brokers for Series transactions on a day to day basis so
long as each selection is in conformance with the Trust's
Policy with Respect to Brokerage Allocation. Such
discretion shall include use of "soft dollars" for certain
broker and research services, also in conformance with the
Trust's Policy with Respect to Brokerage Allocation. The
Adviser may delegate the responsibilities under this
section to a Subadviser of a Series.
(c) Procedures for the Determination of Liquidity of
Assets. It shall be the responsibility of the Adviser to
monitor the Series' assets that are not liquid, making such
determinations as to liquidity of a particular asset as may
be necessary, in accordance with the Trust's Procedures for
the Determination of Liquidity of Assets. The Adviser may
delegate the responsibilities under this section to a
Subadviser of a Series.
(d) Policy with Respect to Proxy Voting. In the
absence of specific direction to the contrary and in a
manner consistent with the Trust's Policy with Respect to
Proxy Voting, the Adviser shall be responsible for voting
proxies with respect to portfolio holdings of the Trust.
The Adviser shall review all proxy solicitation materials
and be responsible for voting and handling all proxies in
relation to the assets under management by the Adviser in
accordance with such policies and procedures adopted or
approved by each Series'. Unless the Fund gives the
Adviser written instructions to the contrary, the Adviser
will, in compliance with the proxy voting procedures of the
Series then in effect or approved by the Series, vote or
abstain from voting, all proxies solicited by or with
respect to the issuers of securities in which the assets of
the Series may be invested. The Adviser shall cause the
Custodian to forward promptly to the Adviser (or designee)
all proxies upon receipt so as to afford the Adviser a
reasonable amount of time in which to determine how to vote
such proxies. The Adviser agrees to provide the Trust with
quarterly proxy voting reports in such form as the Trust
may request from time to time. The Adviser may delegate
the responsibilities under this section to a Subadviser of
a Series.
(e) Procedures for the Valuation of Securities. It
shall be the responsibility of the Adviser to fully comply
with the Trust's Procedures for the Valuation of
Securities. The Adviser may delegate the responsibilities
under this section to a Subadviser of a Series.
9. For providing the services and assuming the expenses
outlined herein, the Trust agrees that the Adviser shall be
compensated as follows:
(a) The Trust shall pay a monthly fee calculated at
an annual rate as specified in Schedule A. The amounts
payable to the Adviser with respect to the Series shall be
based upon the average of the values of the net assets of
the Series as of the close of business each day, computed
in accordance with the Trust's Declaration of Trust.
(b) Compensation shall accrue immediately upon the
effective date of this Agreement.
(c) If there is termination of this Agreement with
respect to any Series during a month, the Series' fee for
that month shall be proportionately computed upon the
average of the daily net asset values of such Series for
such partial period in such month.
(d) The Adviser agrees to reimburse the Trust for the
amount, if any, by which the total operating and management
expenses of the portfolio of any Series (including the
Adviser's compensation, pursuant to this paragraph, but
excluding taxes, interest, costs of portfolio acquisitions
and dispositions and extraordinary expenses), for any
"fiscal year" exceed the level of expenses which such
Series is permitted to bear under the most restrictive
expense limitation (which is not waived by the State)
imposed on open-end investment companies by any state in
which shares of such Series are then qualified. Such
reimbursement, if any, will be made by the Adviser to the
Trust within five days after the end of each month. For the
purpose of this subparagraph (d), the term "fiscal year"
shall include the portion of the then current fiscal year
which shall have elapsed at the date of termination of this
Agreement.
10. The services of the Adviser to the Trust are not to be
deemed exclusive, the Adviser being free to render services to
others and to engage in other activities. Without relieving the
Adviser of its duties hereunder and subject to the prior
approval of the Trustees and subject further to compliance with
applicable provisions of the Investment Company Act, as amended,
the Adviser may appoint one or more agents to perform any of the
functions and services which are to be provided under the terms
of this Agreement upon such terms and conditions as may be
mutually agreed upon among the Trust, the Adviser and any such
agent.
11. The Adviser shall not be liable to the Trust or to any
shareholder of the Trust for any error of judgment or mistake of
law or for any loss suffered by the Trust or by any shareholder
of the Trust in connection with the matters to which this
Agreement relates, except a loss resulting from willful
misfeasance, bad faith, gross negligence or reckless disregard
on the part of the Adviser in the performance of its duties
hereunder.
12. It is understood that:
(a) Trustees, officers, employees, agents and
shareholders of the Trust are or may be "interested
persons" of the Adviser as directors, officers,
stockholders or otherwise;
(b) Directors, officers, employees, agents and
stockholders of the Adviser are or may be "interested
persons" of the Trust as Trustees, officers, shareholders
or otherwise; and
(c) The existence of any such dual interest shall not
affect the validity hereof or of any transactions
hereunder.
13. This Agreement shall become effective with respect to
the Existing Series as of the date stated above, and with
respect to any Additional Series, on the date specified in any
amendment to this Agreement reflecting the addition of each
Additional Series in accordance with paragraph 2 (the "Amendment
Date"). Unless terminated as herein provided, this Agreement
shall remain in full force and effect until November 30, 2005
with respect to each Existing Series and until November 30 of
the first full calendar year following the Amendment Date with
respect to each Additional Series, and shall continue in full
force and effect for periods of one year thereafter with respect
to each Series so long as (a) such continuance with respect to
any such Series is approved at least annually by either the
Trustees or by a "vote of the majority of the outstanding voting
securities" of such Series and (b) the terms and any renewal of
this Agreement with respect to any such Series have been
approved by a vote of a majority of the Trustees who are not
parties to this Agreement or "interested persons" of any such
party cast in person at a meeting called for the purpose of
voting on such approval.
Any approval of this Agreement by a vote of the holders of
a "majority of the outstanding voting securities" of any Series
shall be effective to continue this Agreement with respect to
such Series notwithstanding (a) that this Agreement has not been
approved by a "vote of a majority of the outstanding voting
securities" of any other Series of the Trust affected thereby
and (b) that this Agreement has not been approved by the holders
of a "vote of a majority of the outstanding voting securities"
of the Trust, unless either such additional approval shall be
required by any other applicable law or otherwise.
14. The Trust may terminate this Agreement with respect to
the Trust or to any Series upon 60 days' written notice to the
Adviser at any time, without the payment of any penalty, by vote
of the Trustees or, as to each Series, by a "vote of the
majority of the outstanding voting securities" of such Series.
The Adviser may terminate this Agreement upon 60 days' written
notice to the Trust, without the payment of any penalty. This
Agreement shall immediately terminate in the event of its
"assignment".
15. The terms "majority of the outstanding voting
securities", "interested persons" and "assignment", when used
herein, shall have the respective meanings in the Investment
Company Act.
16. In the event of termination of this Agreement, or at
the request of the Adviser, the Trust will eliminate all
reference to "Phoenix" from its name, and will not thereafter
transact business in a name using the word "Phoenix" in any form
or combination whatsoever, or otherwise use the word "Phoenix"
as a part of its name. The Trust will thereafter in all
prospectuses, advertising materials, letterheads, and other
material designed to be read by investors or prospective
investors delete from the name the word "Phoenix" or any
approximation thereof. If the Adviser chooses to withdraw the
Trust's right to use the word "Phoenix," it agrees to submit the
question of continuing this Agreement to a vote of the Trust's
shareholders at the time of such withdrawal.
17. It is expressly agreed that the obligations of the
Trust hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents or employees of the
Trust personally, but bind only the trust property of the Trust,
as provided in the Declaration of Trust. The execution and
delivery of this Agreement have been authorized by the Trustees
and shareholders of the Trust and signed by the President of the
Trust, acting as such, and neither such authorization by such
Trustees and shareholders nor such execution and delivery by
such officer shall be deemed to have been made by any of them
individually or be binding upon or impose any liability on any
of them personally, but shall bind only the trust property of
the Trust as provided in its Declaration of Trust.
18. This Agreement shall be construed and the rights and
obligations of the parties hereunder enforced in accordance with
the laws of the State of Delaware.
19. Subject to the duty of the Adviser and the Trust 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 any Additional Series that may be named, and the
actions of the Adviser and the Trust in respect thereof.
20. The Adviser will not advise or act on behalf of the
Series in regard to class action filings, with respect to any
securities held in the Series portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of
the day and year first written above.
PHOENIX-▇▇▇▇▇▇▇▇ FUNDS
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
PHOENIX INVESTMENT COUNSEL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Clerk
SCHEDULE A
SERIES ANNUAL INVESTMENT
ADVISORY FEE
Phoenix-▇▇▇▇▇▇▇▇ Balanced Return Fund 0.80% for first $50 million
0.70% on next $450 million
0.60% over $500 million
(3)
PHOENIX-ENGEMANN FUNDS
SUBADVISORY AGREEMENT
May 1, 2005
▇▇▇▇▇▇▇▇ Asset Management
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
RE: Subadvisory Agreement
Ladies and Gentlemen:
Phoenix-Engemann Funds (the "Fund") is a diversified open-end
series investment company registered under the Investment
Company Act of 1940 (the "Act"), and is subject to the rules and
regulations promulgated thereunder. The shares of the Fund are
offered or may be offered in several series, including the
Phoenix-▇▇▇▇▇▇▇▇ Balanced Return Fund (hereafter referred to as
the "Series").
Phoenix Investment Counsel, Inc. (the "Adviser") evaluates and
recommends series advisers 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 ▇▇▇▇▇▇▇▇ Asset Management (the
"Subadviser") as a discretionary series adviser to invest
and reinvest the assets of the equity portion of the
portfolio of the Series on the terms and conditions set
forth herein. The services of the Subadviser hereunder are
not to be deemed exclusive; the Subadviser may render
services to others and engage in other activities that do
not conflict in any material manner in the Subadviser's
performance hereunder.
2. Acceptance of Employment; Standard of Performance. The
Subadviser accepts its employment as a discretionary series
adviser of the equity portion of the portfolio of the
Series and agrees to use its best professional judgment to
make investment decisions for the 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 the Series, the Subadviser shall be subject to the
investment objectives, policies and restrictions of the
Fund as they apply to the equity portion of the portfolio
of the Series only, 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 provided to the
Subadviser by Adviser), and to any applicable investment
restrictions set forth in the Act and the Rules thereunder,
to the supervision and control of the Trustees of the Fund
(the "Trustees"), and to instructions from the Adviser. The
Subadviser shall not, without the Fund's prior approval,
effect any transactions that would cause the equity portion
of the portfolio of the Series at the time of the
transaction to be out of compliance with any such
restrictions or policies. The Adviser shall be responsible
for monitoring compliance with the investment objectives,
policies and restrictions of the Fund.
4. Transaction Procedures. The series transactions placed for
the Series by the Subadviser 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 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 Fund all investment orders for the 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 Fund shall issue to the Custodian such
instructions as may be appropriate in connection with the
settlement of any transaction initiated by the Subadviser.
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 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 Brokerage. The Subadviser shall have
authority and discretion to select brokers and dealers to
execute Series transactions initiated by the Subadviser,
and to select the markets on or in which the transactions
will be executed.
A. In placing orders for the sale and purchase of equity
securities for the Series, 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
Series, 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 Series, as to which the Subadviser exercises
investment discretion, notwithstanding that the Series
may not be the direct or exclusive beneficiary of any
such services or that another broker may be willing to
charge the Series a lower commission on the particular
transaction.
B. The Subadviser shall not execute any securities
transactions for the Series with a broker or dealer
that is an "affiliated person" (as defined in the Act)
of the Fund, the Subadviser or the Adviser without the
prior written approval of the Fund. The Fund will
provide the Subadviser with a list of brokers and
dealers that are "affiliated persons" of the Fund or
Adviser.
6. Proxies and Class Actions. The Subadviser shall review all
the proxy solicitation materials it receives on behalf of
the Series. Unless the Adviser or the Fund gives the
Subadviser written instructions to the contrary, the
Subadviser will, in compliance with the proxy voting
procedures of the Series then in effect, vote or abstain
from voting, all proxies received with respect to the
issuers of the equity securities in which assets of the
Series may be invested. The Adviser shall cause the
Custodian to forward promptly to the Subadviser all such
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
with quarterly proxy voting reports in such form as the
Adviser may request from time to time. The Subadviser will
not advise or act on behalf of the Series in regard to
class action filings, with respect to any securities held
in the Series portfolio.
7. 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 Fund and the Adviser, the Adviser is solely
responsible for the payment of fees to the Subadviser.
8. Limitation of Liability. The Subadviser 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 Subadviser's willful
misfeasance, bad faith or gross negligence, a violation of
the standard of care established by and applicable to the
Subadviser 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 Subadviser from liability under the Act).
9. Confidentiality. Subject to the duty of the Subadviser and
the Fund 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 Subadviser and the Fund in respect
thereof.
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 Subadviser shall notify
the Fund 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 Fund to consider whether an
assignment as defined in Section 2(a)(4) of the Act will
occur, and to take the steps necessary to enter into a new
contract with the Subadviser.
11. Representations, Warranties and Agreements of the
Subadviser. The Subadviser represents, warrants and agrees
that:
A. It is registered as an "Investment Adviser" under the
Investment Advisers Act of 1940 ("Advisers Act").
B. It will maintain, keep current and preserve on behalf
of the Series, in the manner required or permitted by
the Act and the Rules thereunder, 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 Series, and will be
surrendered to the Series or to Adviser as agent of the
Series promptly upon request of either.
C. It has or shall adopt a written code of ethics
complying with the requirements of Rule 17j-l under the
Act and will provide the Fund and Adviser with a copy
of the code of ethics and evidence of its adoption.
Subadviser acknowledges receipt of the written code of
ethics adopted by and on behalf of the Fund (the "Code
of Ethics"). Within 15 days of the end of each calendar
quarter while this Agreement is in effect, a duly
authorized compliance officer of the Subadviser shall
certify to the Fund and to Adviser that the Subadviser
has complied with the requirements of Rule 17j-l 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 Subadviser shall permit the Fund and
Adviser to examine the reports required to be made by
the Subadviser under Rule 17j-l(c)(1) and this
subparagraph.
D. Reference is hereby made to the Declaration of Trust
dated August 17, 2000 establishing the Fund, a copy of
which has been filed with the Secretary of the State of
Delaware and elsewhere as required by law, and to any
and all amendments thereto so filed with the Secretary
of the State of Delaware and elsewhere as required by
law, and to any and all amendments thereto so filed or
hereafter filed. The name "Phoenix Equity Trust"
refers to the Trustees under said Declaration of Trust,
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 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
Fund or of any successor of the Fund, whether such
liability now exists or is hereafter incurred for
claims against the trust estate.
12. Amendment. This Agreement may be amended at any time, but
only by written agreement among the Subadviser, the Adviser
and the Fund, which amendment, other than amendments to
Schedules A, 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.
13. 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 the first
meeting of the shareholders of the Series, and, if its
renewal is approved at that meeting in the manner required
by the Act, shall continue in effect 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 Investment Company Act, and by the majority
vote of the disinterested Trustees in accordance with the
requirements of Section 15(c) thereof.
14. Termination. This Agreement may be terminated by any
party, without penalty, immediately upon written notice to
the other parties in the event of a breach of any provision
thereof by a party so notified, or otherwise upon thirty
(30) days' written notice to the other parties, but any
such termination shall not affect the status, obligations
or liabilities of any party hereto to the other parties.
15. 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 State
of Delaware.
16. 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.
17. Certifications. The Subadviser hereby warrants and
represents that it will provide the requisite
certifications requested by the chief executive officer and
chief financial officer of the Fund necessary for those
named officers to fulfill their reporting and certification
obligations on Forms N-CSR and N-Q as required under the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
18. Indemnification. The Adviser agrees to indemnify and hold
harmless the Subadviser and the Subadviser's directors,
officers, employees and agents from and against any and all
losses, liabilities, claims, damages, and expenses
whatsoever, including reasonable attorneys' fees
(collectively, "Losses"), arising out of or relating to (i)
any breach by the Adviser of any provision of this
Agreement; (ii) the negligence, willful misconduct, bad
faith, or breach of fiduciary duty of the Adviser; (iii)
any violation by the Adviser of any law or regulation
relating to its activities under this Agreement; and (iv)
any dispute between the Adviser and any Fund shareholder,
except to the extent that such Losses result from the gross
negligence, willful misconduct, bad faith, or breach of
fiduciary duty of the Subadviser.
Phoenix-▇▇▇▇▇▇▇▇ Funds
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
Phoenix Investment Counsel, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Clerk
ACCEPTED:
▇▇▇▇▇▇▇▇ Asset Management
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer
SCHEDULES:
A. Operational Procedures
B. Record Keeping Requirements
C. Fee Schedule
D. Subadviser Functions
SCHEDULE A
OPERATIONAL PROCEDURES
In order to minimize operational problems, it will be necessary
for a flow of information to be supplied to State Street Bank
and Trust Company (the "Custodian"), the custodian for the Series.
The Subadviser 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 facsimile
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
Series, the account must be a cash account. No margin accounts
are to be maintained in the name of the Series. Delivery
instructions are as specified by the Custodian. The Custodian
will supply the Subadviser daily with a cash availability
report. This will normally be done by telex so that the
Subadviser will know the amount available for investment purposes.
SCHEDULE B
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 Series 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 Fund.
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 placed by the Subadviser 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 Fund by brokers or dealers.
(ii) The supplying of services or benefits by brokers or dealers to:
(a) The Fund,
(b) The Adviser (Phoenix Investment Counsel, Inc.)
(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-(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.*
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
Investment Advisers Act of 1940, to the extent such records
are necessary or appropriate to record the Subadviser's
transactions for the Series.
______________________________________
*Such information might include: current financial information,
annual and quarterly reports, press releases, reports by
analysts and from brokerage firms (including their
recommendation; i.e., buy, sell, hold) or any internal reports
or subadviser review.
SCHEDULE C
SUBADVISORY FEE
(a) For services provided to the Series, the Adviser will
pay to the Subadviser, on or before the 10th day of each month,
a fee, payable in arrears, which is calculated at a rate equal
to 50% of the gross investment management fee multiplied by the
percentage of equity assets held in the Series.
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 Subadviser, the net asset
value of the Series shall be valued as set forth in the then
current registration statement of the Series.
SCHEDULE D
SUBADVISER FUNCTIONS
With respect to managing the investment and reinvestment of
the equity portion of the portfolio of the Series, the
Subadviser shall provide, at its own expense:
(a) An investment program for the equity portion of the
portfolio of 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 Adviser;
(b) Implementation of such investment program for the
equity portion of the portfolio of the Series based
upon the foregoing criteria;
(c) Quarterly reports, in form and substance acceptable to
the Adviser, with respect to: i) compliance with the
Code of Ethics and the Subadviser'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 the equity portion of the portfolio
of the Series 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 as it relates to the
equity portion of the portfolio;
(d) Promptly after filing with the Securities and Exchange
Commission an amendment to its Form ADV, a copy of
such amendment to the Adviser and the Trustees;
(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; and
(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
Investment Company Act of 1940 or otherwise.