SUBADVISORY AGREEMENT BETWEEN UTENDAHL CAPITAL MANAGEMENT, LP AND PACIFIC INVESTMENT MANAGEMENT COMPANY
Exhibit (d)(29)
BETWEEN
XXXXXXXX
CAPITAL MANAGEMENT, LP
AND
PACIFIC INVESTMENT MANAGEMENT COMPANY
AGREEMENT made as
of ,
2010, by and between Xxxxxxxx Capital Management, LP a Delaware limited
partnership, with its principal office and place of business at 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000 (the “Adviser”) and Pacific Investment Management
Company (the “Subadviser”)..
WHEREAS, Adviser has entered
into an Investment Advisory Agreement dated the , 2010 (“Advisory
Agreement”) with Forum Funds, a Delaware statutory trust, with its principal
office and place of business at Two Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000, (the
“Trust”);
WHEREAS, the Trust is
registered under the Investment Company Act of 1940, as amended, (the “1940
Act”), as an open-end, management investment company and may issue its shares of
beneficial interest, no par value, in separate series;
WHEREAS, pursuant to the
Advisory Agreement, and subject to the direction and control of the Board of
Trustees of the Trust (the “Board”), the Adviser acts as investment adviser for
the series of the Trust listed on Schedule A hereto (the “Fund”);
WHEREAS, it is intended that
the Trust be a third-party beneficiary under this Agreement; and
WHEREAS, Adviser desires to
retain the Subadviser to perform investment advisory services for the Fund and
Subadviser is willing to provide those services on the terms and conditions set
forth in this Agreement;
NOW THEREFORE, for and in
consideration of the mutual covenants and agreements contained herein, the
Adviser and the Subadviser hereby agree as follows:
SECTION 1. APPOINTMENT;
DELIVERY OF DOCUMENTS
(a) The
Adviser hereby employs Subadviser, subject to the direction and control of the
Board, to manage the investment and reinvestment of the assets in the Fund and,
without limiting the generality of the foregoing, to provide other services as
specified herein. The Subadviser accepts this employment and agrees
to render its services for the compensation set forth herein.
(b) n
connection therewith, the Adviser has delivered to the Subadviser copies of (i)
the Trust’s Trust Instrument and Bylaws (collectively, as amended from time to
time, “Organic Documents”), (ii) the Trust’s Registration Statement and all
amendments thereto filed with the U.S. Securities and Exchange Commission
(“SEC”) pursuant to the Securities Act of 1933, as amended (the “Securities
Act”), or the 1940 Act (the “Registration Statement”), (iii) the Trust’s current
Prospectuses and Statements of Additional Information for the Fund
(collectively, as currently in effect and as amended or supplemented, the
“Prospectus”), (iv) each plan of distribution or similar document adopted by the
Trust on behalf of the Fund under Rule 12b-1 under the 1940 Act and each current
shareholder service plan or similar document adopted by the Trust on behalf of
the Fund; and (v) all policies and procedures adopted by the Trust with respect
to the Fund (e.g., repurchase agreement procedures, Rule 17a-7 Procedures and
Rule 17e-1 Procedures), and shall promptly furnish the Subadviser with all
amendments of or supplements to the foregoing. The Adviser shall
deliver to the Subadviser: (v) a certified copy of the resolution of the Board,
including a majority of the Trustees who are not interested persons (as defined
in the 0000 Xxx) appointing the Adviser and Subadviser and approving the Trust’s
advisory agreement with the Adviser and this Agreement; (w) a certified copy of
the resolution of the Fund’s shareholder(s), if applicable, appointing the
Adviser and Subadviser; (x) a copy of all proxy statements and related materials
relating to the Fund; and (y) a certified copy of the resolution from the Trust
and the Adviser identifying the officers of the Adviser and/or the Trust; and
(z) any other documents, materials or information that the Subadviser shall
reasonably request to enable it to perform its duties pursuant to this
Agreement..
(c) The
Subadviser has delivered to the Adviser and the Trust (i) a copy of its Form ADV
as most recently filed with the SEC and (ii) a copy of its code of ethics
complying with the requirements of Rule 17j-1 under the 1940 Act (the
“Code”). The Subadviser shall promptly furnish the Adviser and Trust
with all amendments of or supplements to the foregoing.
SECTION
2. DUTIES OF THE ADVISER
In order for the Subadviser to perform
the services required by this Agreement, the Adviser shall (i) cause all service
providers to the Trust to furnish information to the Subadviser and assist the
Subadviser as may be required; (ii) ensure that the Subadviser has reasonable
access to all records and documents maintained by the Trust, the Adviser or any
service provider to the Trust; and (iii) deliver to the Subadviser all materials
it provides to the Board in accordance with the Advisory Agreement.
SECTION 3. DUTIES OF THE
SUBADVISER
(a) The
Subadviser will make decisions with respect to all purchases and sales of
securities and other investment assets in the Fund to the extent such authority
is delegated by the Adviser. To carry out such decisions, the
Subadviser is hereby authorized, as agent and attorney-in-fact for the Trust,
for the account of, at the risk of and in the name of the Trust, to place orders
and issue instructions with respect to those transactions of the
Fund. In all purchases, sales and other transactions in securities
and other investments for the Fund, the Subadviser is authorized to exercise
full discretion and act for the Trust in the same manner and with the same force
and effect as the Trust might or could do with respect to such purchases, sales
or other transactions, as well as with respect to all other things necessary or
incidental to the furtherance or conduct of such purchases, sales or other
transactions, including voting of proxies with respect to securities owned by
the Fund, subject to such proxy voting policies as approved by the
Board.
Consistent with Section 28(e) of the
Securities Exchange Act of 1934, as amended (“1934 Act”) and applicable
regulations and interpretations, the Subadviser may allocate brokerage on behalf
of the Fund to a broker-dealer who provides research
services. Subject to compliance with Section 28(e), the Adviser may
cause Fund to pay to a broker-dealer who provides research services a commission
that exceeds the commission the Fund might have paid to a different
broker-dealer for the same transaction if the Subadviser determines, in good
faith, that such amount of commission is reasonable in relation to the value of
such brokerage or research services provided viewed in terms of that particular
transaction or the Subadviser’s overall responsibilities to the Fund or its
other advisory clients. The Subadviser may aggregate sales and
purchase orders of the assets of the Fund with similar orders being made
simultaneously for other accounts advised by the Subadviser or its
affiliates. Whenever the Subadviser simultaneously places orders to
purchase or sell the same asset on behalf of the Fund and one or more other
accounts advised by the Subadviser, the Subadviser will allocate the order as to
price and amount among all such accounts in a manner believed to be equitable
over time to each account.
(b) The
Subadviser will report to the Board at each meeting thereof as requested by the
Adviser or the Board all material changes in the Fund since the prior report,
and will also keep the Board informed of important developments affecting the
Trust, the Fund and the Subadviser, and on its own initiative, will furnish the
Board from time to time with such information as the Subadviser may believe
appropriate for this purpose, whether concerning the individual companies whose
securities are included in the Fund’s holdings, the industries in which they
engage, the economic, social or political conditions prevailing in each country
in which the Fund maintains investments, or otherwise. The Subadviser
will also furnish the Board with such statistical and analytical information
with respect to investments of the Fund as the Subadviser may believe
appropriate or as the Board reasonably may request. In making
purchases and sales of securities and other investment assets for the Fund, the
Subadviser will bear in mind the policies set from time to time by the Board as
well as the limitations imposed by the Organic Documents and Registration
Statement, the limitations in the 1940 Act, the Securities Act, the Internal
Revenue Code of 1986, as amended, and other applicable laws and the investment
objectives, policies and restrictions of the Fund.
(c) The
Subadviser will from time to time employ or associate with such persons as the
Subadviser believes to be particularly fitted to assist in the execution of the
Subadviser's duties hereunder, the cost of performance of such duties to be
borne and paid by the Subadviser. No obligation may be incurred on
the Trust’s or Adviser’s behalf in any such respect.
(d) The
Subadviser will report to the Board all material matters related to the
Subadviser. On an annual basis, the Subadviser shall report on its
compliance with its Code to the Adviser and to the Board and upon the written
request of the Adviser or the Trust, the Subadviser shall permit the Adviser and
the Trust, or their respective representatives to examine the reports required
to be made to the Subadviser under the Code. The Subadviser will
notify the Adviser and the Trust of any change of control of the Subadviser and
any changes in the key personnel who are either the portfolio manager(s) of the
Fund or senior management of the Subadviser, in each case prior to or promptly
after such change.
(e) The
Subadviser will maintain records relating to its portfolio transactions and
placing and allocation of brokerage orders as are required to be maintained by
the Trust under the 1940 Act. The Subadviser shall prepare and
maintain, or cause to be prepared and maintained, in such form, for such periods
and in such locations as may be required by applicable law, all documents and
records relating to the services provided by the Subadviser pursuant to this
Agreement required to be prepared and maintained by the Subadviser or the Trust
pursuant to applicable law. To the extent required by law, the books
and records pertaining to the Trust, which are in possession of the Subadviser,
shall be the property of the Trust. The Adviser and the Trust, or
their respective representatives, shall have access to such books and records at
all times during the Subadviser's normal business hours. Upon the
reasonable request of the Adviser or the Trust, copies of any such books and
records shall be provided promptly by the Subadviser to the Adviser and the
Trust, or their respective representatives.
(f) The
Subadviser will cooperate with the Fund’s independent public accountants and
shall take reasonable action to make all necessary information available to the
accountants for the performance of the accountants’ duties.
(g) The
Subadviser will provide the Fund’s custodian and fund accountant on each
business day with such information relating to all transactions concerning the
Fund’s assets under the Subadviser’s control as the custodian and fund
accountant may reasonably require. In accordance with procedures
adopted by the Board, the Subadviser is responsible for assisting in the fair
valuation of all Fund assets and will use its reasonable efforts to arrange for
the provision of prices from a parties who are not affiliated persons of the
Subadviser for each asset for which the Fund’s fund accountant does not obtain
prices in the ordinary course of business.
(h) The
Subadviser shall authorize and permit any of its directors, officers and
employees who may be elected as Trustees or officers of the Trust to serve in
the capacities in which they are elected.
(i) The
Subadviser shall have no duties or obligations pursuant to this Agreement (other
than the continuation of its preexisting duties and obligations) during any
period in which the Fund invests all (or substantially all) of its investment
assets in a registered, open-end management investment company, or separate
series thereof, in accordance with Section 12(d)(1)(E) under the 1940
Act.
SECTION 4. COMPENSATION;
EXPENSES
(a) In
consideration of the foregoing, the Adviser shall pay the Subadviser, with
respect to the Fund, a fee at an annual rate as listed in Appendix B
hereto. Such fees shall be accrued by the Adviser daily and shall be
payable monthly in arrears on the first business day of each calendar month for
services performed hereunder during the prior calendar month. If fees
begin to accrue in the middle of a month or if this Agreement terminates before
the end of any month, all fees for the period from that date to the end of that
month or from the beginning of that month to the date of termination, as the
case may be, shall be prorated according to the proportion that the period bears
to the full month in which the effectiveness or termination
occurs. Upon the termination of this Agreement with respect to the
Fund, the Adviser shall pay to the Subadviser such compensation as shall be
payable prior to the effective date of termination.
(b) No
fee shall be payable hereunder with respect to the Fund during any period in
which the Fund invests all (or substantially all) of its investment assets in a
registered, open-end, management investment company, or separate series thereof,
in accordance with Section 12(d)(1)(E) under the 1940 Act.
SECTION 5. STANDARD OF
CARE
(a) The
Adviser shall expect of the Subadviser, and the Subadviser will give the Adviser
the benefit of, the Subadviser's best judgment and efforts in rendering its
services hereunder. The Subadviser shall not be liable hereunder to the Adviser
or the Trust for any mistake of judgment or mistake of law or for any loss
arising out of any investment or for any act or omission taken or in any event
whatsoever with respect to the Trust, the Fund or any of the Fund’s shareholders
in the absence of bad faith, willful misfeasance or gross negligence in the
performance of the Subadviser’s duties or obligations under this Agreement or by
reason of the Subadviser’s reckless disregard of its duties and obligations
under this Agreement.
(b) The
Subadviser shall not be liable to the Adviser or the Trust for any action taken
or failure to act in good faith reliance upon: (i) information, instructions or
requests, whether oral or written, with respect to the Fund made to the
Subadviser by a duly authorized officer of the Adviser or the Trust; (ii) the
advice of counsel to the Trust; and (iii) any written instruction or
certified copy of any resolution of the Board.
(c) The
Subadviser shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties (other than those related to the Subadviser’s
employees), fire, mechanical breakdowns, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply.
(d) The
parties hereto acknowledge and agree that the Trust is a third-party beneficiary
as to the covenants, obligations, representations and warranties undertaken by
the Subadviser under this Agreement and as to the rights and privileges to which
the Adviser is entitled pursuant to this Agreement, and that the Trust is
entitled to all of the rights and privileges associated with such
third-party-beneficiary status.
SECTION 6. EFFECTIVENESS,
DURATION AND TERMINATION
(a) This
Agreement shall become effective with respect to the Fund immediately upon the
later of approval by a majority of the Trust's Trustees who are not interested
persons (as defined in the 0000 Xxx) and, if required by applicable law, by a
vote of a majority of the outstanding voting securities of the
Fund.
(b) This
Agreement shall remain in effect with respect to the Fund for a period of two
years from the date of its effectiveness and shall continue in effect for
successive annual periods with respect to the Fund; provided that such
continuance is specifically approved at least annually (i) by the Board or by
vote of a majority of the outstanding voting securities of the Fund, and in,
either case, (ii) by a majority of the Trust’s Trustees who are not interested
persons (as defined in the 1940 Act); provided further, however, that if the
continuation of this Agreement is not approved as to the Fund, the Subadviser
may continue to render to that Fund the services described herein in the manner
and to the extent permitted by the 1940 Act and the rules and regulations
thereunder.
(c) This
Agreement may be terminated with respect to the Fund at any time, without the
payment of any penalty, (i) by the Board, by a vote of a majority of the
outstanding voting securities of the Fund or by the Adviser on 60 days' written
notice to the Subadviser or (ii) by the Subadviser on 60 days' written notice to
the Trust. This Agreement shall terminate immediately (x) upon its
assignment or (y) upon termination of the Advisory Agreement.
SECTION 7. ACTIVITIES OF THE
SUBADVISER
Except to the extent necessary to
perform its obligations hereunder, nothing herein shall be deemed to limit or
restrict the Subadviser's right, or the right of any of the Subadviser's
partners, directors, officers or employees to engage in any other business or to
devote time and attention to the management or other aspects of any other
business, whether of a similar or dissimilar nature, or to render services of
any kind to any other entity.
SECTION 8. REPRESENTATIONS
OF SUBADVISER.
The Subadviser represents and warrants
to the Adviser that:
(a) It
is either registered as an investment adviser under the Investment Advisers Act
of 1940, as amended (“Advisers Act”) (and will continue to be so registered for
so long as this Agreement remains in effect) or exempt from registration under
the Advisers Act;
(b) It
is not prohibited by the 1940 Act or the Advisers Act from performing the
services contemplated by this Agreement;
(c) It
has met, and will seek to continue to meet for so long as this Agreement remains
in effect, any other applicable federal or state requirements, or the applicable
requirements of any self-regulatory agency, necessary to be met by the
Subadviser in order to perform its services contemplated by this Agreement;
and
(d) It
will promptly notify the Adviser and the Trust of the occurrence of any event
that would disqualify the Subadviser from serving as an investment adviser of an
investment company pursuant to Section 9(a) of the 1940 Act or other applicable
law, rule or regulation.
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SECTION
9. LIMITATION OF SHAREHOLDER AND TRUSTEE
LIABILITY
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The Trustees of the Trust and the
shareholders of the Fund shall not be personally liable for any obligations of
the Trust or of the Fund under this Agreement, and the Subadviser agrees that,
in asserting any rights or claims under this Agreement, it shall look only to
the assets and property of the Trust or the Fund to which the Subadviser's
rights or claims relate in settlement of such rights or claims, and not to the
Trustees of the Trust or the shareholders of the Fund.
SECTION
10. MISCELLANEOUS
(a) No
provisions of this Agreement may be amended or modified in any manner except by
a written agreement properly authorized and executed by both parties hereto and
approved by the Trust in the manner set forth in Section 6(b)
hereof.
(b) Neither
party to this Agreement shall be liable to the other party for consequential
damages under any provision of this Agreement.
(c) This
Agreement shall be governed by, and the provisions of this Agreement shall be
construed and interpreted under and in accordance with, the laws of the State of
Delaware.
(d) This
Agreement constitutes the entire agreement between the parties hereto and
supersedes any prior agreement with respect to the subject matter hereof,
whether oral or written.
(e) This
Agreement may be executed by the parties hereto on any number of counterparts,
and all of the counterparts taken together shall be deemed to constitute one and
the same instrument.
(f) If
any part, term or provision of this Agreement is held to be illegal, in conflict
with any law or otherwise invalid, the remaining portion or portions shall be
considered severable and not be affected, and the rights and obligations of the
parties shall be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid. This Agreement
shall be construed as if drafted jointly by both the Adviser and Subadviser and
no presumptions shall arise favoring any party by virtue of authorship of any
provision of this Agreement.
(g) Section
headings in this Agreement are included for convenience only and are not to be
used to construe or interpret this Agreement.
(h) Notices,
requests, instructions and communications received by the parties at their
respective principal places of business, as indicated above, or at such other
address as a party may have designated in writing, shall be deemed to have been
properly given.
(i) No
affiliated person, employee, agent, director, partner, officer or manager of the
Subadviser shall be liable at law or in equity for the Subadviser’s obligations
under this Agreement.
(j) The
terms "vote of a majority of the outstanding voting securities", "interested
person", "affiliated person," “control” and "assignment" shall have the meanings
ascribed thereto in the 1940 Act.
(k) Each
of the undersigned warrants and represents that they have full power and
authority to sign this Agreement on behalf of the party indicated and that their
signature will bind the party indicated to the terms hereof and each party
hereto warrants and represents that this Agreement, when executed and delivered,
will constitute a legal, valid and binding obligation of the party, enforceable
against the party in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
(l) Any
information and advice furnished by either party to this Agreement to the other
shall be treated as confidential and shall not be disclosed to third parties
without the consent of the other party hereto except as required by law, rule or
regulation. The Subadviser hereby consents to the disclosure to third
parties of investment results and other Fund data in connection with providing
composite investment results and related information of the
Subadviser. The Subadviser also consents to the disclosure of Fund
data to the Fund’s other service providers so that those providers may perform
the services they are contractually obligated to render to the
Trust.
(m) The
Subadviser may from time to time make available without charge to the Adviser or
the Trust any marks or symbols owned by the Subadviser (the “Xxxx”), including
marks or symbols containing the Xxxx or any variation thereof, to use in the
Fund’s Registration Statement and/or Fund sales literature. Any use
of the Marks shall be subject to the direction and control of the
Subadviser.
(n) The
Subadviser shall not use the name of the Trust or any Fund on any checks, bank
drafts, bank statements or forms for other than internal use in a manner not
approved by the Trust prior thereto in writing; provided however, that the
approval of the Trust shall not be required for the use of the Trust’s or Fund’s
name which merely refers in accurate and factual terms to the Trust or Fund in
connection with Subadviser’s role hereunder or which is required by any
appropriate regulatory, governmental or judicial authority; and further provided
that in no event shall such approval be unreasonably withheld or
delayed.
(o) The
provisions of Sections 5, 6, 9 and 10 shall survive any termination of this
Agreement.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed all as of the day
and year first above written.
XXXXXXXX
CAPITAL MANAGEMENT, LP
By:
Title:
PACIFIC
INVESTMENT MANAGEMENT COMPANY
By:
Title:
BETWEEN
XXXXXXXX
CAPITAL MANAGEMENT, LP
AND
PACIFIC INVESTMENT MANAGEMENT COMPANY
Appendix
A
Series
of the Trust:
Xxxxxxxx
Credit Floating NAV Fund
BETWEEN
XXXXXXXX
CAPITAL MANAGEMENT, LP
AND
PACIFIC INVESTMENT MANAGEMENT COMPANY
Appendix
B
Fees
and Expenses
0.12% of
the Fund’s average daily net assets
