Exhibit 99.d.3
EXHIBIT A
FORM OF
HIGHMARK GROWTH FUND
SUB-ADVISORY AGREEMENT
This AGREEMENT is executed as of _________________, 2001 and made effective as
of ___________________, 2001, by and between HIGHMARK CAPITAL MANAGEMENT, INC.
(the "Adviser") and XXXXXXX & XXXX INVESTMENT MANAGEMENT COMPANY, a Kansas
corporation, which is an investment adviser registered under the laws of the
United States as an investment adviser under the Investment Advisers Act of 1940
("Sub-Adviser").
WHEREAS, the Adviser is the investment adviser for the HighMark Funds (the
"Trust"), an open-end diversified management investment company registered under
the Investment Company Act of 1940, as amended ("`40 Act");
WHEREAS, Adviser's affiliate, Union Bank of California N.A., serves as Custodian
for the HighMark Funds and provides certain other services for the Funds;
WHEREAS, SEI Investments Fund Resources is Administrator and SEI Investment
Distribution Co. is Distributor of the HighMark Funds (collectively, the "SEI
Companies"); and
WHEREAS, Adviser desires to retain Sub-Adviser as its agent to furnish
investment sub-advisory services for certain assets of the Trust's Growth Fund
(the "Fund").
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the meanings
set forth:
1.1 "33 Act" shall mean the Securities Act of 1933, the rules and regulations
issued thereunder, as they may be amended from time to time.
1.2 "40 Act" shall mean the Investment Company Act of 1940, the rules and
regulations issued thereunder, as they may be amended from time to time.
1.3 "Administrator" and "Distributor" shall mean SEI Investments Fund Resources
and SEI Investments Distribution Co, respectively.
1.4 "Adviser" shall mean HighMark Capital Management, Inc.
1.5 "Adviser's Act" shall mean the Investment Adviser's Act of 1940 and the
rules and regulations promulgated thereunder, as they may be amended from time
to time
1.6 "Bank" shall mean Union Bank of California, N.A., a national banking
association organized under the laws of the United States.
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1.7 "Sub-Adviser" shall mean Xxxxxxx & Xxxx Investment Management Company, a
company incorporated in Kansas and registered as an investment adviser under the
Investment Advisers Act of 1940.
1.8 "Sub-Adviser Assets" shall mean those certain assets of the Fund for which
Sub-Adviser will provide investment sub-advisory services.
2. APPOINTMENT. Adviser hereby appoints Sub-Adviser to provide certain sub-
advisory services to the Fund for the period and on the terms set forth in this
Agreement. Sub-Adviser accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided.
3. DELIVERY OF DOCUMENTS.
3.1 Adviser has furnished or will furnish Sub-Adviser with copies properly
certified or authenticated of each of the following:
(a) Copies of the Declarations of Trust establishing the HighMark Funds
and the By-Laws of the Trust;
(b) Resolutions of the Trust's Board of Trustees authorizing the
appointment of Sub-Adviser and approving this Agreement;
(c) The Trust's most recent prospectus and Statement of Additional
Information for the Growth Fund (such prospectus and Statement of Additional
Information, as presently in effect, and all amendments and supplements thereto
are herein collectively called the "Prospectus").; and
(d) Adviser's Form ADV Part II.
Adviser will furnish Sub-Adviser with copies of all amendments of or
supplements to the foregoing promptly following adoption of such amendments or
supplements, and such other materials and documents as Sub-Adviser shall
reasonably request.
3.2 Sub-Adviser has furnished or will furnish Adviser with copies properly
certified or authenticated of each of the following:
(a) Form ADV Part II;
(b) Such other materials and documents as Sub-Adviser shall reasonably
request.
Sub-Adviser will furnish Adviser with copies of all amendments of or supplements
to the foregoing promptly following adoption of such amendments or supplements.
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4. MANAGEMENT:
4.1 Subject always to the supervision of the Trust's Board of Trustees and
of Adviser, Sub-Adviser will furnish an investment program in respect of, and
make investment decisions for, the Sub-Adviser Assets of the Fund entrusted to
it hereunder. Sub-Adviser may place all orders for the purchase and sale of
securities, on behalf of the Sub-Adviser Assets. Sub-Adviser is also authorized,
subject to periodic approvals of authorized persons by the Board of Trustees, to
instruct Custodian to settle trades executed on behalf of the Sub-Adviser
Assets. In the performance of its duties, Sub-Adviser will satisfy its fiduciary
duties to the Sub-Adviser Assets, will monitor the Sub-Adviser Assets
investments, and will comply with the provisions of the Trust's Declaration of
Trust and By-Laws, as amended from time to time, and with the investment
objectives, policies and restrictions of the Fund stated in the Fund Prospectus
and compliance policies and procedures furnished to the Sub-Adviser by Adviser
from time to time. Notwithstanding the foregoing, the Adviser shall remain
responsible for ensuring the Fund's overall compliance with all applicable state
and federal laws and regulations, and Sub-Adviser is only obligated to comply
with the provisions of this Agreement with respect to the Sub-Adviser Assets.
4.2 Sub-Adviser and Adviser will each make its officers and employees
available to the other from time to time at reasonable times to review
investment policies of the Fund and to consult with each other regarding the
investment affairs of the Sub-Adviser Assets. Sub-Adviser shall also make itself
reasonably available to the Trust's Board of Trustees at such times as the Board
of Trustees shall request.
4.3 Sub-Adviser represents and warrants that it is and shall remain in
compliance with all applicable United States Securities and Exchange Commission
("SEC") Rules and Regulations pertaining to its investment advisory activities
and agrees that it:
(a) will use at least the same skill and care in providing such services
as it uses in providing services to fiduciary accounts in the United States for
which it has investment responsibilities;
(b) will maintain registration with the SEC as an investment adviser
under the Advisers Act and will conform with all applicable laws, rules and
regulations pertaining to its investment advisory activities;
(c) will place orders pursuant to its investment determinations for the
Sub-Adviser Assets either directly with the issuer or with any broker or dealer.
In providing the Sub-Adviser Assets with investment supervision, the Sub-Adviser
will give primary consideration to securing the most favorable price and
efficient execution. Within the framework of this policy, the Sub-Adviser may
consider the financial responsibility, research and investment information and
other services provided by brokers or dealers who may effect or be a party to
any such transaction or other transactions to which the Sub-Adviser's other
clients may be a party. It is understood that it is desirable for the
Sub-Adviser Assets that the Sub-Adviser have access to supplemental investment
and market research and security and economic analysis provided by brokers who
may execute brokerage transactions at a higher cost to the Fund than may result
when allocating brokerage to other brokers on the basis of seeking the most
favorable price and efficient execution. Therefore, the Sub-Adviser is
authorized to place orders for the purchase and sale of securities for the
Sub-Adviser's Assets with such brokers, subject to the general supervision of,
and guidelines from time to time established by, the Adviser and reviewed by the
Trust's Board of Trustees with respect to the extent and continuation of this
practice. It is understood that the services provided by such brokers may be
useful to the Sub-Adviser in connection with the Sub-Adviser's services to other
clients.
On occasions when the Sub-Adviser deems the purchase or sale of a security
to be in the best interest of the Sub-Adviser Assets as well as other clients of
the Sub-Adviser, the Sub-Adviser, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be so purchased or sold in order to obtain the most favorable price or lower
brokerage
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commissions and efficient execution. In such event, allocation of the securities
so purchased or sold, as well as the expenses incurred in the transaction, will
be made by the Sub-Adviser in the manner it considers to be the most equitable
and consistent with its fiduciary obligations to the Sub-Adviser Assets and to
such other clients. In no instance will portfolio securities be purchased from
or sold to Adviser, Sub-Adviser, the SEI Companies, or any affiliated person of
any of the Trust, Adviser, the Sub-Adviser, or the SEI Financial Services
Company, or any entity that Adviser has identified to the Sub-Adviser in
writing, except as may be permitted under the `40 Act.
(d) will report regularly to Adviser and will make appropriate persons
available for the purpose of reviewing at reasonable times the management of the
Sub-Adviser Assets with representatives of Adviser and the Board of
Trustees, including, without limitation, review of the general investment
strategy of the Sub-Adviser Assets, the overall performance of the Sub-Adviser
Assets in relation to standard industry indices which have been agreed upon
between Adviser and Sub-Adviser and general conditions affecting the
marketplace, and will provide various other reports from time to time as
reasonably requested by Adviser;
(e) will maintain books and records with respect to the Trust's
securities transactions required by subparagraphs (b)(5), (6), (7), (9), (10)
and (11) and paragraph (f) of Rule 31a-1 under the `40 Act and will furnish
Adviser and the Trust's Board of Trustees such periodic and special reports as
the Adviser or Board of Trustees may request;
(f) will act upon instructions from Adviser that are consistent with the
fiduciary duties undertaken hereunder; and
(g) will treat confidentially and as proprietary information of the
Trust all such records and other information relative to the Trust maintained by
the Sub-Adviser, and will not use such records and information for any purpose
other than performance of its responsibilities and duties hereunder, except
after prior notification to and approval in writing by the Trust, which approval
shall not be unreasonably withheld and may not be withheld where Sub-Adviser may
be exposed to civil or criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted authorities, or when
so requested by the Trust.
Sub-Adviser shall have the right to execute and deliver, or cause its nominee to
execute and deliver, all proxies and notices of meetings and other notices
affecting or relating to the securities of the Sub-Adviser Assets. Sub-Advisor
shall not be responsible for voting any proxies relating to securities of the
Sub-Advisor Assets which proxies have a record date prior to the effective date
of this Agreement or on or after the date of any termination of this Agreement.
Advisor acknowledges and agrees that Sub-Advisor shall have no responsibility
for filing claims on behalf of the Sub-Advisor Assets with respect to any class
action, bankruptcy proceeding or any other action or proceeding in which the
Sub-Advisor Assets may be entitled to participate as a result of its securities
holding.
4.4 Sub-Advisor will diligently perform services as defined under this
Agreement. However, Sub-Advisor makes no representations or guarantees
whatsoever that the objective(s) of the Fund will be achieved or that the
Sub-Adviser Assets will outperform its benchmark as set forth in Schedule B.
5. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3 under
the `40 Act, Sub-Adviser hereby agrees that certain records which it maintains
for the Trust are the property of the Trust also and further agrees to surrender
promptly to the Trust a duplicate of any of such records, upon the Trust's
request. Sub-Adviser further agrees to preserve for the periods prescribed by
Rule 31a-2 under the `40 Act the records required to be maintained by
subparagraphs (b)(5), (6), (7), (9), (10) and
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(11) and paragraph (f) of Rule 31a-1 under the `40 Act for the Sub-Adviser
Assets. Sub-Adviser may delegate its responsibilities under this Section to
affiliates that perform custody and/or fund accounting services for the
Sub-Adviser Assets, which delegation shall not, however, relieve the Sub-Adviser
of its responsibilities under this paragraph 5.
6. EXPENSES. During the term of this Agreement, Sub-Adviser will pay all
expenses incurred by it in connection with its activities under this Agreement
other than the cost of securities and other investments (including brokerage
commissions and other transaction charges, if any) purchased for the Trust,
unless otherwise stated in this Agreement. The Sub-Adviser shall not be
responsible for expenses incurred by the Trust, the Fund or the Adviser.
7. COMPENSATION. For the services provided and the expenses assumed pursuant
to this Agreement, Adviser shall pay the Sub-Adviser, and the Sub-Adviser
agrees to accept as full compensation therefor, a sub-advisory fee
computed on the average daily net assets of the Fund subject to this
Agreement, calculated as of the last business day of each calendar month,
and payable within 30 days of the end of each month, in accordance with
Schedule A hereto. From time to time, Sub-Adviser may, in its sole
discretion, agree to waive or reduce some or all of the compensation to
which it is entitled under this Agreement.
8. SERVICES TO OTHERS. Adviser understands, and has advised the Trust's Board
of Trustees, that Sub-Adviser now acts and may in the future act, as an
investment adviser to fiduciary and other managed accounts, and as investment
adviser, sub-investment adviser, and/or administrator to other investment
companies. Adviser has no objection to Sub-Adviser's acting in such capacities,
as long as such services do not impair the services rendered to Adviser or the
Trust. Adviser recognizes, and has advised the Trust's Board of Trustees that,
in some cases, this procedure may adversely affect the size of the position that
the Fund may obtain in a particular security. In addition, Adviser understands,
and has advised the Trust's Board of Trustees, that the persons employed by
Sub-Adviser to assist in Sub-Adviser's duties under this Agreement will not
devote their full time to such service and nothing contained in this Agreement
will be deemed to limit or restrict the right of Sub-Adviser or any of its
affiliates to engage in and devote time and attention to other businesses or to
render services of whatever kind or nature.
9. LIMITATION OF LIABILITY. The Sub-Adviser shall not be liable for any error
or judgment or for any loss suffered by the Sub-Adviser Assets or Adviser in
connection with performance of its obligations under this Agreement or for
having executed Advisor's instructions, except a loss resulting from a breach of
Sub-Adviser's fiduciary duty with respect to the receipt of compensation for
services (in which case any award of damages shall be limited to the period and
the amount set forth in Section 36(b)(3) of the `40 Act), or a loss resulting
from willful misfeasance, bad faith or gross negligence on the Sub-Adviser's
part in the performance of its obligations or in failing to perform its
obligations under this Agreement, except as may otherwise be provided under
provisions of applicable state or federal law which cannot be waived or modified
hereby.
10. INDEMNIFICATION. Adviser and Sub-Adviser each agree to indemnify the other
against any claim, loss or liability (including reasonable attorneys' fees)
arising out of any action taken or not taken in the performance of its
obligations under this which constitutes willful misfeasance, bad faith or gross
negligence.
11. DURATION AND TERMINATION. This Agreement will become effective as of the
date hereof, provided that it has been approved by a vote of a majority of the
outstanding voting securities of the Fund in accordance with the requirements
under the `40 Act, and, unless sooner terminated as provided therein, will
continue in effect for two (2) years.
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Thereafter, if not terminated, this Agreement will continue in effect for the
Sub-Adviser Assets for successive periods of 12 months, each ending on the day
preceding the annual anniversary of the Agreement's effective date, provided
that such continuation is specifically approved at least annually (a) by the
vote of a majority of those members of the Trust's Board of Trustees who are not
interested persons of the Trust, Sub-Adviser, or Adviser, cast in person at a
meeting called for the purpose of voting on such approval, and (b) by the vote
of a majority of the Trust's Board of Trustees or by the vote of majority of all
votes attributable to the outstanding Shares of the Fund.
Notwithstanding the foregoing, this Agreement may be terminated as to the
Sub-Adviser Assets at any time, without the payment of any penalty, on sixty
(60) day's written notice by the Adviser to Sub-Adviser. This Agreement may be
terminated at any time, without the payment of any penalty, on 120 day's written
notice by the Sub-Adviser to Adviser. This Agreement will immediately terminate
in the event of its assignment. (As used in this Agreement, the terms "majority
of the outstanding voting securities", "interested persons" and "assignment"
have the same meaning of such terms in the `40 Act.)
12. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
13. SUB-ADVISER INFORMATION. During the terms of this Agreement, Adviser
agrees to furnish the Sub-Adviser at Sub-Adviser's principal office all
prospectuses, proxy statements, reports to stockholders, sales literature or
other materials prepared for distribution to stockholders of the Fund, the Trust
or the public that refer to the Sub-Adviser. The Adviser agrees to use its
reasonable best efforts to ensure that materials prepared by its employees or
agents or its affiliates that refer to the Sub-Adviser in any way are consistent
with those materials previously published. Sales literature may be furnished to
the Sub-Adviser by first-class or overnight mail, facsimile transmission
equipment or hand delivery.
14. SEVERABILITY. Should any part of this Agreement be held invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors.
15. NOTICES. Any notice, advice or report to be given pursuant to this
Agreement shall be delivered or mailed as set forth below:
TO ADVISER AT:
HighMark Capital Management, Inc.
000 Xxxxxxx Xxxxxx
Post Office Xxx 00000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx, President
TO THE SUB-ADVISER AT:
Xxxxxxx & Xxxx Investment Management Company
0000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx
Vice President
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With a copy to the Legal Department at the same address
TO THE TRUST OR THE FUND AT:
HighMark Funds
c/o SEI Investments Fund Resources
and SEI Investments Distribution Co.
Xxx Xxxxxxx Xxxxxx Xx.
Xxxx, Xxxxxxxxxxxx 00000
Attention: Legal Department
Parties agree that they shall not be bound by the terms of any changes in
policies, procedures, or contracts until notice has been received as set forth
in this Agreement.
16. CHANGE OF LAW . Where the effect of a requirement of the `40 Act reflected
in any provision of this Agreement is altered by a rule, regulation or order of
the SEC, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
17. MISCELLANEOUS .
The captions in this Agreement are included for convenience of reference only
and in no way define or delimit any of the provisions hereof or otherwise affect
their construction or effect. If any provision of this Agreement is held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement will not be affected thereby. This Agreement will be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and will be governed by the laws of the Commonwealth of Massachusetts.
The name "HighMark Funds" and "Trustees of the HighMark Funds" refer,
respectively, to the Trust created by, and the Trustees as trustees (but not
individually or personally), acting from time to time under, the Declaration of
the Trust, to which reference is hereby made and copy of which is on file at the
office of the Secretary of State of the Commonwealth of Massachusetts and
elsewhere as required by law, and to any and all amendments thereto so filed or
hereafter filed. The obligations of "HighMark Funds" entered in the name or on
behalf thereof by any of the Trustees, representatives or agents are made not
individually but only in such capacities and are not binding upon any of the
Trustees, Shareholders or representatives of the Trust personally, but bind only
the assets of the Trust, and persons dealing with the Funds must look solely to
the assets of the Trust belonging to such Funds for the enforcement of any
claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officer designated below as of the day and year first above
written.
HIGHMARK CAPITAL MANAGEMENT, INC. Xxxxxxx & Xxxx Investment Management
Company
By: By:
----------------------------- ----------------------------------
Name: Xxxx Xxxxx Name: Xxxxx Xxxxxxxx
Title: President Title: President
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SCHEDULE A
HIGHMARK GROWTH FUND
Advisory Fee: 60 b.p.
Sub-Advisory Fee: 30 b.p. on all assets, including cash and cash equivalents,
calculated and payable in accordance with the provision of Section 7 of the
Agreement.
The Sub-Advisory fee shall be payable out of the Advisory fee.
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SCHEDULE B
SUB-ADVISER PERFORMANCE STANDARDS
Outperform the S&P 500 / Barra Growth Index and perform in the top 30% of the
Morningstar Large Growth Category.
Sub-Advisor will diligently perform services as defined under this Agreement.
However, Sub-Advisor makes no representations or guarantees whatsoever that the
objective of the Fund will be achieved or that the Sub-Adviser Assets will
outperform its benchmark as set forth above.
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