EXHIBIT d.1
INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT effective as of the 20th day of November, 2002 (the
"Contract Date") is by and between Phoenix Strategic Equity Series Fund, a
Delaware business trust (the "Trust") and Phoenix Investment Counsel, Inc., a
Connecticut corporation (the "Adviser") on behalf of Phoenix-Seneca Growth Fund
("Growth Fund") and Phoenix-Seneca Strategic Theme Fund ("Strategic Theme
Fund").
By the terms of a certain Substitution Agreement dated May 27, 1998,
the Trust and Adviser are parties to a certain Management Agreement effective as
of May 14, 1993, as amended January 1, 1994 and October 16, 1995, as amended, on
behalf of the Growth Fund (the "Management Agreement"). The Trust and Adviser
also are parties to a certain Investment Advisory Agreement effective as of
October 16, 1995, as amended, on behalf of the Strategic Theme Fund (the
"Advisory Agreement"). The Management Agreement and the Advisory Agreement are
collectively referred to herein as the "Agreement". The parties mutually desire
to amend, consolidate and restate the Agreement as follows:
WITNESSETH THAT:
1. The Trust has appointed the Adviser to act as investment advisor
to the Trust on behalf of the 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 has accepted such
appointment and has agreed 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
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 Existing Series and 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 each
Series, subject at all times to the supervision of the Trustees.
4. With respect to managing the investment and reinvestment 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;
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(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
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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.
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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 respective Series shall be based
upon the average of the values of the net assets of such
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
for 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 farther 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.
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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 Amended and Restated Agreement shall become effective with
respect to the Existing Series as of November 20, 2002, 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, 2003 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; provided, however, that the
continuance of this Agreement with respect to each Additional Series is subject
to its approval by a "vote of a majority of the outstanding voting securities"
of any such Additional Series on or before the next anniversary of the Contract
Date following the date on which such Additional Series became a Series
hereunder.
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.
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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. The Certificate of Trust, as amended, is or shall be on file with the
Secretary of State of Delaware.
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
Connecticut.
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 STRATEGIC EQUITY SERIES FUND
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
PHOENIX INVESTMENT COUNSEL, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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SCHEDULE A
Series Investment Advisory Fee
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$1st billion $1+ Billion $2+ Billion
through $2 Billion
Phoenix-Seneca Growth Fund 0.70% 0.65% 0.60%
Phoenix-Seneca Strategic Theme Fund 0.75% 0.70% 0.65%
The parties to this Agreement hereby acknowledge the following fund
name changes: Phoenix-Seneca Growth Fund f/k/a Phoenix-Seneca Equity
Opportunities Fund f/k/a Phoenix Equity Opportunities Fund and Phoenix-Seneca
Strategic Theme Fund f/k/a Phoenix Strategic Theme Fund.
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