EX-99.(D)2(12)A 46 pesf59670_exhibitd2-12a.txt AMENDED AND RESTATED SUBADVISORY AGREEMENT AMENDED AND RESTATED SUBADVISORY AGREEMENT THE PHOENIX EDGE SERIES FUND This Amended and Restated Subadvisory Agreement (this "Agreement") is entered into as of this 13th day of February , 2003, by and between Phoenix Variable Advisors, Inc., a Delaware corporation (the "Adviser") and Massachusetts Financial Services Company, a company organized under the laws of the State of Delaware, doing business as MFS Investment Management and having a place of business located at 500 Boylston Street, Boston, MA 02116 (the "Subadviser"). Recitals -------- 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. The Adviser and Subadviser have entered into that certain Subadvisory Agreement dated October 29, 2001 (the "Existing Agreement") wherein Subadviser assumed responsibility for the day-to-day management of the following series of the Fund: Phoenix-MFS Investors Growth Stock Series (the "Old Series"), Phoenix-MFS Investors Trust Series, and, Phoenix-MFS Value Series (hereafter collectively referred to as the "Initial Series"). On December 10, 2002, the Executive Committee of the Fund approved a plan of reorganization whereby inter alia the Phoenix-Van Kampen Focus Equity Series and the Phoenix-MFS Investors Growth Stock Series (collectively, the "Merging Series") will be merged into the Phoenix-Janus Growth Series (the "Surviving Series") on or about February 14, 2003, subject to shareholder approval. In accordance with those certain letter agreements dated December 31, 2002, the services of the subadvisers with respect to each Merging Series will be terminated upon consummation of the merger. In accordance with that certain partial termination agreement also dated December 31, 2002, the Adviser has terminated the services of Janus Capital Management LLC ("Janus"), as subadviser to the Surviving Series, effective February 13, 2003. As more particularly described below, Adviser intends to engage the Subadviser as the subadviser to the Surviving Series as of February 13, 2003 whereupon the Subadviser shall provide day-to-day management of the Surviving Series in accordance with the revised registration statement for the Fund and those undertakings attached hereto and made a part hereof as Schedule A. On or about February 14, 2003, upon consummation of the aforementioned merger, the name of the Surviving Series will be changed to the Phoenix-MFS Investors Growth Stock Series. The Board of Trustees of the Fund ratified the foregoing actions at their regular meeting held on February 10, 2003. The parties desire to amend and restate the Existing Agreement in order to reflect their mutual understandings and agreements. Pursuant to the Securities and Exchange Commission's ("SEC") exemptive order dated August 6, 2002, Release No. 25693 (the "Order"), Adviser has been granted the authority, subject to the approval of the Fund's Board of Trustees, to enter into subadvisory agreements with subadvisors, materially amend existing subadvisory agreements, and approve new subadvisory agreements with existing subadvisors in cases where the subadvisory agreement has been terminated as a result of an "assignment", in each case without such subadvisory agreement being approved by the shareholders of the applicable series. The Adviser has used the powers pursuant to said Order, permitting the Adviser to replace Janus with Subadviser as subadviser for the Surviving Series. NOW, THEREFORE, the Existing Agreement is hereby amended and restated so as to reflect the following agreements: 1. Employment as a Subadviser. The Adviser, being duly authorized, hereby employs the Subadviser to invest and reinvest the assets of the Initial Series and the Surviving Series (collectively, 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 with the Subadviser's performance hereunder. 2. Acceptance of Employment; Standard of Performance. The Subadviser accepts its employment as a subadviser to the Adviser and agrees to make investment decisions for the Series in accordance with the provisions of this Agreement. 3. Services of Subadviser. (a) The Subadviser 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 Subadviser 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 Trust, to the investment and other restrictions set forth in the Act and in the Securities Act of 1933, as amended; and to the supervision and direction of the Adviser, who in turn is subject to the supervision and direction of the Board of Trustees of the Fund. Notwithstanding anything herein to the contrary, the Subadviser shall provide day-to-day management of the Surviving Series in accordance with the revised registration statement for the Fund and those undertakings attached hereto and made a part hereof as Schedule A. The Subadviser will keep the Fund and the Adviser informed of developments materially affecting the Fund, and will, on its own initiative, furnish the Series and the Adviser from time to time with whatever information the Sub-adviser believes is reasonably appropriate for this purpose. (b) Subject at all times to the limitations set forth in subparagraph 3(a) above, the Subadviser 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 Series to and for the carrying out of contracts, arrangements, or transactions which shall be entered into by the Subadviser on the Series' 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 Subadviser with respect thereto. The Subadviser 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. The Subadviser shall furnish at its own expense for the following: (a) Office facilities, including office space, furniture and equipment utilized by its employees, in the fulfillment of Subadviser's responsibilities hereunder; 2 (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 Subadviser hereunder; and, (c) The Subadviser need not provide personnel to perform, or pay the expenses of the Adviser for, services customarily performed for an open-end management 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 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 or by confirmed electronic transmission 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 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 acts, omissions or other conduct of the Custodian. 6. 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 Series securities for the Fund, 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 Fund, so long as the Subadviser 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 Subadviser, viewed in terms of either that particular transaction or of the Subadviser's overall responsibilities with respect to its clients, including the Fund, as to which the Subadviser 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 Adviser shall have the right to request that transactions giving rise to brokerage commissions, in an amount to be agreed upon by the Adviser and the Subadviser, 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 3 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. C. On occasions when the Subadviser deems the purchase or sale of a security, commodity or other asset to be in the best interest of the Series as well as other clients of the Subadviser, the Subadviser, to the extent permitted by applicable law and regulations may, but shall be under no obligation to, aggregate the securities, commodities or other assets to be sold or purchased in order to obtain the most favorable price or lower brokerage commissions and best execution. In such event, allocation of the securities, commodities or other assets so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Subadviser in the manner the Subadviser considers to be the most equitable and consistent with its fiduciary obligations to the Series and to such other clients. 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 error of judgment, mistake of law, or for any loss suffered by the Adviser, the Fund, the Series or their shareholders, in connection with the matters to which this Agreement relates, provided, however, that such error, mistake or loss does not constitute a breach of the investment objectives, policies and restrictions applicable to the Series and that any such error, mistake or loss, shall not have resulted from the Subadviser's willful misfeasance, bad faith or gross negligence in the performance of, or from the reckless disregard of its obligations hereunder. 9. Confidentiality. Subject to the duty of the Subadviser 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 Adviser 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 Adviser 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 Subadviser. The Subadviser represents, warrants and agrees that as of October 29, 2001: A. It is registered as an "investment adviser" under the Investment Advisers Act of 1940 ("Advisers 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 4 relating to the services the Subadviser provides under this Agreement as may be required in the 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 Act. C. It has a written code of ethics complying with the requirements of Rule 17j-l under the Act and will provide the 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"). The Subadviser will not be subject to the Code of Ethics of the Fund as long as its code of ethics complies with the applicable regulatory requirements and the Board of Trustees of the Trust approves its 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 Subadviser shall certify to the Fund and to the Adviser that the Subadviser has complied with the requirements of Rule 17j-l with respect to the Fund during the previous calendar quarter and that there has been no violation of its code of ethics with respect to the Fund, 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. It will use all necessary efforts to manage the Series so that the Fund will qualify as a regulated investment company under the provisions of Subchapter M of the Internal Revenue Code ("IRC"), will satisfy the diversification requirements of Section 817(h) of the IRC, the provisions of Subchapter M of the IRC applicable to regulated investment companies, including those which underlie variable annuities; and, the distribution requirements necessary to avoid payment of any excise tax pursuant to Section 4982 of the IRC and the rules and regulations adopted under each such provision, provided, however, the foregoing representation shall be effective with respect to the Surviving Series as of February 13, 2003. E. It will furnish the Adviser a copy of its Form ADV as filed with the Securities and Exchange Commission. F. It will be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Series, provided, however, the foregoing representation shall be effective with respect to the Surviving Series as of February 13, 2003. G. It will not, without the Adviser's prior approval, effect any transactions that would cause the Series at the time of the transaction to be out of compliance with any of such restrictions or policies. H. 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 Subadviser nor any of its officers, directors, partners, shareholders or employees shall, under any circumstances, have recourse or cause or willingly 5 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 Adviser. The Adviser 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 adviser" under the Advisers Act. C. Prior to commencement of the Subadviser's services hereunder, it will deliver to the Subadviser true and complete copies of the Prospectus, Statement of Additional Information, 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 Subadviser 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. The Adviser will also provide a list of companies the securities of which are not to be bought or sold for the Series (such list shall include each security name, CUSIP number, SEDOL and/or applicable ticker, if applicable) and a list of affiliated brokers and underwriters for reporting transactions under applicable provisions of the Act. Subadviser shall not be obligated to process or undertake any actions in connection with the information described in this clause until three business days following its receipt of notice thereof pursuant to Section 19, below. 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 Subadviser such other information relating to the business affairs of the Fund as the Subadviser at any time, or from time to time, reasonably requests in order to discharge its obligations hereunder. 13. Reports. The Subadviser shall provide the Adviser such periodic and special reports as the Adviser requests and the Subadviser consents to provide, which consent shall not be unreasonably withheld or delayed. The Subadviser agrees that such records are the property of the Fund, and shall be made reasonably available for inspections, by the Fund or to the Adviser as agent of the Fund, and promptly upon request surrendered to either. The Subadviser 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. The Subadviser shall review all proxy solicitation materials and be responsible for voting and handling all proxies in relation to the Assets. 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, and provided in writing to the Subadviser, vote or abstain from voting, all proxies solicited by or with respect to the issuers of securities in 6 which assets of the 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 with quarterly proxy voting reports in such form as the Adviser may request from time to time. 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 Adviser. 16. Amendment. This Agreement may be amended at any time, but only by written agreement between the Subadviser and the Adviser, which amendment, other than amendments to Schedules A and B, is subject to the approval of the Trustees and the Shareholders of the Fund as and to the extent required by the Act. 17. 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 November 30, 2003, 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. 18. Use of Subadviser's Name. The Adviser and the Fund agree not to refer to any designation comprised in whole or in part of the names or marks "Massachusetts Financial Services Company", "MFS Investment Management" or any other trademark relating to MFS in any advertising or other document without the prior written consent of the subadviser. Upon termination of this Agreement, each party shall cease all use of the other's name as soon as reasonably practicable. 19. Notices. Except as otherwise provided in this Agreement, all notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered or sent by confirmed facsimile or by pre-paid first class letter post or overnight courier 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 Adviser: PHOENIX VARIABLE ADVISORS, INC. One American Row Hartford, Connecticut Attention: Doreen Bonner If to the Subadviser: Massachusetts Financial Services Company 500 Boylston Street Boston, MA 02116 Attention: Legal Department 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 7 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. 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, INC. By: /s/ Doreen A. Bonner ----------------------------- Title: Doreen A. Bonner 8 ACCEPTED: MASSACHUSETTS FINANCIAL SERVICES COMPANY By: /s/ John Ballen ---------------------------- Title: John Ballen, CEO SCHEDULES: A. Subadviser Functions B. Operational Procedures C. Fee Schedule 9 SCHEDULE A ---------- SUBADVISER FUNCTIONS With respect to managing the investment and reinvestment of the Series assets, the Subadviser 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 Adviser; (b) Implementation of the investment program for the Series based upon the foregoing criteria; (c) Annual reports, in form and substance acceptable to the Adviser and Subadviser, with respect to foreign custody as governed by Rule 17f-7 under the Act, and proxy voting reports. (d) Quarterly reports, in form and substance acceptable to the Adviser, 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 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) cross transactions conducted pursuant to Rule 17a-7 under the Act; vi) any and all other reports as the parties hereto mutually agree; and, vii) the implementation of the Series investment program, including, without limitation, analysis of Series performance; (e) Attendance by appropriate representatives of the Subadviser at meetings requested by the Adviser or Trustees at such time(s) and location(s) as mutually agreed upon; and (f) 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 reasonably requested by the Adviser. (g) This Schedule A is subject to amendment from time to time to require additional reports as contemplated by Paragraph 13 of this Agreement. 10 SCHEDULE B ---------- OPERATIONAL PROCEDURES In order to minimize operational problems, it will be necessary for a flow of information to be supplied to State Street Bank & Trust Company (the "Custodian"), the custodian for the Fund. 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 Fund, the account must be a cash account. No margin accounts are to be maintained in the name of the Fund. Delivery instructions are as specified by the Custodian. The Custodian and sub-accounting agent will supply the Subadviser daily with a cash availability report. This will normally be done by confirmed facsimile or confirmed electronic transmission so that the Subadviser will know the amount available for investment purposes. 11 SCHEDULE C ---------- SUBADVISORY FEE For services provided to the Fund pursuant to paragraph 3 hereof, the Adviser will pay to the Subadviser, on or before the 10th day of each month, a fee, payable in arrears, at the annual rates stated below,: Rate(s) Breakpoint based on average ------- of all net assets of the three Series under management ---------------- 0.375% $0 - $500 million 0.350% next $400 million 0.325% next $600 million 0.250% Excess over $1.5 billion 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 each Series shall be valued as set forth in the then current registration statement of the Fund. Payment of the monthly management fee will be accompanied by documentation that verifies the calculation of such fee. 12