77Q1: Exhibits
(a) Articles Supplementary dated March 3, 2005 filed as
Exhibit (a)(9) to Post Effective Amendment No. 30 to the
Registrant's Registration Statement on Form N-1A filed on
March 4, 2005 (Accession No. 0001193125- 05-042852)
(b) Not applicable.
(e)(1) Investment Management Agreement, between Forward
Management, LLC and the Forward Funds, Inc. (the "Company")
on behalf of the Forward Legato Fund filed as Exhibit
(d)(5) to Post Effective Amendment No. 31 to the
Registrant's Registration Statement on Form N-1A, filed on
March 7, 2005 (Accession No. 0001193125-05-043515)
(2) Investment Management Agreement, between Forward
Management, LLC and the Company on behalf of the Funds
dated May 1, 2005 filed herewith as Forward Funds, Inc.
Amended and Restated Investment Management Agreement.
(3) Investment Sub-Advisory Agreement between Riverbridge
Partners, LLC, Forward Management, LLC and the Company on
behalf of Forward Legato Fund filed as Exhibit (d)(14) to
Post Effective Amendment No. 32 to the Registrant's
Registration Statement on Form N-1A, filed on April 29,
2005 (Accession No. 0001193125-05-043515)
(4) Investment Sub-Advisory Agreement between Conestoga Capital
Advisors, LLC, Forward Management, LLC and the Company on
behalf of Forward Legato Fund filed as Exhibit (d)(15) to
Post Effective Amendment No. 32 to the Registrant's
Registration Statement on Form N-1A, filed on April 29,
2005 (Accession No. 0001193125-05-043515)
(5) Investment Sub-Advisory Agreement between Netols Asset
Management, Inc., Forward Management, LLC and the Company
on behalf of Forward Legato Fund filed as Exhibit (d)(16)
to Post Effective Amendment No. 32 to the Registrant's
Registration Statement on Form N-1A, filed on April 29,
2005 (Accession No. 0001193125-05-043515)
(6) Investment Sub-Advisory Agreement between Forward Uniplan
Advisors, Inc., Forward Management, LLC and the Company on
behalf of Forward Sierra Club Stock Fund dated May 1, 2005
filed herewith as Uniplan Investment Sub-Advisory Agreement
Forward Funds, Inc. Investment Sub-Advisory Agreement.
(g) Not Applicable.
77Q1(e)(2)
FORWARD FUNDS, INC.
AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT, effective as of May 1, 2005, between Forward
Management, LLC ("Forward Management" or the "Investment
Advisor") and Forward Funds, Inc. (the "Corporation") on behalf
of the series of the Corporation listed on Exhibit A (the
"Funds").
WHEREAS, the Corporation is a Maryland corporation of the
series type organized under Articles of Incorporation dated
October 3, 1997 (the "Articles") and is registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), as
an open-end, diversified management investment company, and the
Funds are series of the Corporation; and
WHEREAS, the Investment Advisor is registered as an
investment adviser under the Investment Advisers Act of 1940, as
amended ("Advisers Act"); and
NOW THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed between the Corporation
and the Investment Advisor as follows:
1. Appointment. The Investment Advisor is xxxxxx
appointed to act as investment adviser to the Funds for the
periods and on the terms set forth in this Agreement. The
Investment Advisor accepts such appointment and agrees to
furnish the services herein set forth, for the compensation
herein provided.
2. Investment Advisory Duties. Subject to the supervision
of the Directors of the Corporation, the Investment Advisor
will: (a) provide a program of continuous investment management
for the Funds with regard to the Funds' investment of their
assets (the "Portfolios") in accordance with the Funds'
investment objectives, policies and limitations as stated in the
Funds' prospectus and statement of additional information
included as part of the registration statement (the
"Registration Statement") filed with the Securities and Exchange
Commission (the "SEC"), as they may be amended from time to
time, copies of which shall be provided to the Investment
Advisor by the Corporation; (b) make investment decisions for
the Funds with regard to the Portfolios, including, but not
limited to, the selection and management of investment sub-
advisers for the Funds, in which case any of the duties of the
Investment Advisor set forth herein may be delegated to such
investment sub-advisers subject to approval by the Board of
Directors; (c) if investment sub-advisers are appointed with
respect to the Funds, monitor and evaluate the performance of
the investment sub-advisers under their respective sub-advisory
agreements in light of the investment objectives and policies of
the respective Fund, and render to the Directors such periodic
and special reports related to such performance monitoring as
the Directors may reasonably request, and analyze and recommend
changes in investment sub-advisers as the Investment Advisor may
deem appropriate; (d) place orders to purchase and sell
investments in the Portfolios for the Funds; and (e) provide
office space, secretarial and clerical services and wire and
telephone services necessary to provide the investment advisory
duties set forth in this Section 2.
In performing its investment management services to the
Funds under the terms of this Agreement, the Investment Advisor
will provide the Funds with ongoing investment guidance and
policy direction.
The Investment Advisor further agrees that, in performing
its duties hereunder, it will:
(a) comply with the 1940 Act and all rules and regulations
thereunder, the Advisers Act, the Internal Revenue Code of 1986,
as amended (the "Code") and all other applicable federal and
state laws and regulations, and with any applicable procedures
adopted by the Board of Directors;
(b) use reasonable efforts to manage the Portfolios so that
the Funds will qualify, and continue to qualify, as regulated
investment companies under Subchapter M of the Code and
regulations issued thereunder;
(c) place orders pursuant to its investment determinations for
the Funds in accordance with applicable policies expressed in
the Funds' Prospectus and/or Statement of Additional
Information, established through written guidelines determined
by the Corporation and provided to the Investment Advisor, and
in accordance with applicable legal requirements;
(d) furnish to the Corporation whatever statistical
information the Corporation may reasonably request with respect
to the Portfolios. In addition, the Investment Advisor will keep
the Corporation and the Directors informed of developments
materially affecting the Portfolios and shall, on the Investment
Advisor's own initiative, furnish to the Corporation from time
to time whatever information the Investment Advisor believes
appropriate for this purpose;
(e) make available to the Corporation's administrator, PFPC
Inc. (the "Administrator"), and the Corporation, promptly upon
their request, such copies of its investment records and ledgers
with respect to the Portfolios as may be required to assist the
Administrator and the Corporation in their compliance with
applicable laws and regulations. The Investment Advisor will
furnish the Directors with such periodic and special reports
regarding the Funds as they may reasonably request;
(f) meet quarterly with the Corporation's Board of Directors
to explain its investment management activities, and any reports
related to the Portfolios as may reasonably be requested by the
Corporation;
(g) immediately notify the Corporation in the event that the
Investment Advisor or any of its affiliates: (1) becomes aware
that it is subject to a statutory disqualification that prevents
the Investment Advisor from serving as investment adviser
pursuant to this Agreement; or (2) becomes aware that it is the
subject of an administrative proceeding or enforcement action by
the SEC or other regulatory authority. The Investment Advisor
further agrees to notify the Corporation immediately of any
material fact known to the Investment Advisor respecting or
relating to the Investment Advisor that is not contained in the
Registration Statement regarding the Funds, or any amendment or
supplement thereto, but that is required to be disclosed
therein, and of any statement contained therein that becomes
untrue in any material respect; and
(h) in making investment decisions for the Portfolios, use no
material non-public information that may be in its possession or
in the possession of any of its affiliates, nor will the
Investment Advisor seek to obtain any such information.
3. Investment Guidelines. The Corporation shall supply
the Investment Advisor with such information as the Investment
Advisor shall reasonably require concerning the Funds'
investment policies, restrictions, limitations, tax position,
liquidity requirements and other information useful in managing
the Portfolios.
4. The Investment Advisor is responsible for decisions to
buy and sell securities and other investments for the Fund,
broker-dealer selection, and negotiation of brokerage commission
rates. The Investment Advisor's primary consideration in
effecting a security transaction will be to obtain the best
execution for the Fund, taking into account the factors
specified in the Registration Statement, or other factors that
may be specified by the Board. The price to a Fund in any
transaction may be less favorable than that available from
another broker-dealer if the difference is reasonably justified,
in the judgment of the Investment Advisor in the exercise of its
fiduciary obligations to the Fund, by other aspects of the
portfolio execution services offered. Subject to such policies
as the Board may determine and consistent with Section 28(e) of
the Securities Exchange Act of 1934, as amended (the "1934 Act")
or other applicable law, the Investment Advisor shall not be
deemed to have acted unlawfully or to have breached any duty
created by this Agreement or otherwise solely by reason of its
having caused the Fund to pay a broker-dealer for effecting a
portfolio investment transaction in excess of the amount of
commission another broker-dealer would have charged for
effecting that transaction, if the Investment Advisor determines
in good faith that such amount of commission was reasonable in
relation to the value of the brokerage and research services
provided by such broker-dealer, viewed in terms of either that
particular transaction or the Investment Advisor's overall
responsibilities with respect to the Fund and to its other
clients as to which it exercises investment discretion. To the
extent consistent with these standards and in accordance with
Section 11(a) of the 1934 Act and Rule 11a2-2(T) thereunder and
Section 17(e) of the 1940 Act and Rule 17e-1 thereunder, the
Investment Advisor is further authorized to allocate the orders
placed by it on behalf of the Fund to the Investment Advisor if
it is registered as a broker-dealer with the Securities and
Exchange Commission ("SEC"), to an affiliated broker-dealer, or
to such brokers and dealers who also provide research or
statistical material or other services to the Fund, the
Investment Advisor or an affiliate of the Investment Advisor.
Such allocation shall be in such amounts and proportions as the
Investment Advisor shall determine consistent with the above
standards, and the Investment Advisor will report on said
allocation regularly to the Board if and as required under
applicable law or regulation, indicating the broker-dealers to
which such allocations have been made and the basis therefor.
5. Compensation. For its investment advisory services
specified in Section 2 of this Agreement, the Corporation agrees
to pay annual fees to the Investment Advisor equal to the
amounts listed opposite the respective Fund on Exhibit A. Fees
shall be computed and accrued daily and paid monthly based on
the average daily net asset value of shares of the Funds as
determined according to the manner provided in the then-current
prospectus of the Funds. The Investment Advisor shall be
responsible for compensating any investment sub-advisers
employed by the Funds.
6. Fees and Expenses. The Investment Advisor shall not
be required to pay any expenses of the Funds other than those
specifically allocated to the Investment Advisor in this
Agreement. In particular, but without limiting the generality
of the foregoing, the Investment Advisor shall not be
responsible for the following expenses of the Funds:
organization and certain offering expenses of the Funds
(including out-of-pocket expenses, but not including the
Investment Advisor's overhead and employee costs in providing
the services specified in Section 2 of this Agreement); fees
payable to the Investment Advisor and to any other of the Funds'
advisers or consultants; legal expenses; auditing and accounting
expenses; interest expenses; taxes and governmental fees; fees,
dues and expenses incurred by or with respect to the Corporation
in connection with membership in investment company trade
organizations; cost of insurance relating to fidelity coverage
for the Corporation's officers and employees; fees and expenses
of the Funds' Administrator or of any custodian, subcustodian,
transfer agent, registrar, or dividend disbursing agent of the
Funds; expenses of establishing or implementing the Funds'
compliance program; expenses, salaries, or other costs of any
officers of the Corporation, including, but not limited to any
officers of the Funds who may also be officers, employees, or
other affiliates of the Investment Advisor; payments to the
Administrator for maintaining the Funds' financial books and
records and calculating its daily net asset value; other
payments for portfolio pricing or valuation services to pricing
agents, accountants, bankers and other specialists, if any;
expenses of preparing share certificates; other expenses in
connection with the issuance, offering, distribution or sale of
securities issued by the Funds; expenses relating to investor
and public relations; expenses of registering and qualifying
shares of the Funds for sale; freight, insurance and other
charges in connection with the shipment of the Funds' portfolio
securities; brokerage commissions or other costs of acquiring or
disposing of any portfolio securities or other assets of the
Funds, or of entering into other transactions or engaging in any
investment practices with respect to the Funds; expenses of
printing and distributing prospectuses, Statements of Additional
Information, reports, notices and dividends to stockholders;
costs of stationery or other office supplies; any litigation
expenses; costs of stockholders' and other meetings; the
compensation and all expenses (specifically including travel
expenses relating to the Funds' businesses) of officers,
directors and employees of the Corporation with respect to
matters concerning the Funds (including officers, directors or
employees of the Corporation who are "interested persons" of the
Investment Advisor) as may be agreed upon between the
Corporation and the Investment Advisor.
Notwithstanding anything herein to the contrary, the Investment
Advisor may, if requested: (a) furnish to the Funds the services
of its employees and agents in the management and conduct of the
corporate business and affairs of the Corporation, provided that
the Investment Advisor may be compensated for providing such
services as agreed to between the Investment Advisor and the
Corporation from time to time pursuant to a support services or
similar agreement; (b) provide the services of its officers or
employees as officers or administrative executives of the
Corporation (including but not limited to the Chief Compliance
Officer of the Corporation and any compliance staff) and the
services of any Directors of the Corporation who are "interested
persons" of the Corporation or its affiliates, as that term is
defined in the 1940 Act, subject in each case to their
individual consent to serve and to applicable legal limitations,
provided that the Investment Advisor may be compensated for
providing such services as agreed to between the Investment
Advisor and the Corporation from time to time pursuant to a
support services or similar agreement; and (c) provide office
space, secretarial and clerical services and wire and telephone
services, and monitor and review Corporation contracted services
and expenditures pursuant to the distribution plans of the
Funds, provided that, other than with respect to the services
specified in Section 2(e) of this Agreement, the Investment
Advisor may be compensated for providing such services as agreed
to between the Investment Advisor and the Corporation from time
to time pursuant to a support services or similar agreement.
7. Books and Records. The Investment Advisor agrees to
maintain such books and records with respect to its services to
the Funds as are required by Section 31 under the 1940 Act, and
rules adopted thereunder, and by other applicable legal
provisions, and to preserve such records for the periods and in
the manner required by that Section, and those rules and legal
provisions. The Investment Advisor also agrees that records it
maintains and preserves pursuant to Rules 31a-1 and Rule 31a-2
under the 1940 Act and otherwise in connection with its services
hereunder are the property of the Corporation and will be
surrendered promptly to the Corporation upon its request. The
Investment Advisor further agrees that it will furnish to
regulatory authorities having the requisite authority any
information or reports in connection with its services hereunder
which may be requested in order to determine whether the
operations of the Funds are being conducted in accordance with
applicable laws and regulations.
8. Aggregation of Orders. Provided the investment
objectives, policies and restrictions of the Funds are adhered
to, the Corporation agrees that the Investment Advisor may
aggregate sales and purchase orders of securities held in the
Funds with similar orders being made simultaneously for other
accounts managed by the Investment Advisor or with accounts of
the affiliates of the Investment Advisor, if in the Investment
Advisor's reasonable judgment such aggregation shall result in
an overall economic benefit to the respective Fund taking into
consideration the advantageous selling or purchase price,
brokerage commission and other expenses. The Corporation
acknowledges that the determination of such economic benefit to
the Funds by the Investment Advisor represents the Investment
Advisor's evaluation that the Funds are benefited by relatively
better purchase or sales prices, lower commission expenses and
beneficial timing of transactions or a combination of these and
other factors.
9. Liability. The Investment Advisor shall not be liable
to the Corporation for the acts or omissions of any other
fiduciary or other person respecting the funds or for anything
done or omitted by the Investment Advisor under the terms of
this Agreement if the Investment Advisor shall have acted in
good faith and shall have exercised the degree of prudence,
competence and expertise customarily exhibited by managers of
institutional portfolios. Nothing in this Agreement shall in any
way constitute a waiver or limitation of any rights which may
not be so limited or waived in accordance with applicable law.
10. Services Not Exclusive. It is understood that the
services of the Investment Advisor are not exclusive, and that
nothing in this Agreement shall prevent the Investment Advisor
from providing similar services to other investment companies or
to other series of investment companies, including the
Corporation (whether or not their investment objectives and
policies are similar to those of the Funds) or from engaging in
other activities, provided such other services and activities do
not, during the term of this Agreement, interfere in a material
manner with the Investment Advisor's ability to meet its
obligations to the Funds hereunder. When the Investment Advisor
recommends the purchase or sale of a security for other
investment companies and other clients, and at the same time the
Investment Advisor recommends the purchase or sale of the same
security for the Funds, it is understood that in light of its
fiduciary duty to the Funds, such transactions will be executed
on a basis that is fair and equitable to the Funds. If the
Investment Advisor provides any advice to its clients concerning
the shares of the Funds, the Investment Advisor shall act solely
as investment counsel for such clients and not in any way on
behalf of the Corporation or the Funds.
11. Duration and Termination. This Agreement shall
continue with respect to each of the Funds, until December 31,
2005, and thereafter shall continue automatically for successive
annual periods, provided such continuance is specifically
approved at least annually by (i) the Directors or (ii) a vote
of a "majority" (as defined in the 1940 Act) of a Fund's
outstanding voting securities (as defined in the 1940 Act),
provided that in either event the continuance is also approved
by a majority of the Directors who are not parties to this
Agreement or "interested persons" (as defined in the 1940 Act)
of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval.
Notwithstanding the foregoing, this Agreement may be terminated:
(a) at any time without penalty with respect to a Fund upon the
vote of a majority of the Directors or by vote of the majority
of that Fund's outstanding voting securities, upon sixty (60)
days' written notice to the Investment Advisor or (b) by the
Investment Advisor at any time without penalty, upon sixty (60)
days' written notice to the Corporation. This Agreement will
also terminate automatically in the event of its assignment (as
defined in the 1940 Act). Any termination of this Agreement will
be without prejudice to the completion of transactions already
initiated by the Investment Advisor on behalf of the Funds at
the time of such termination. The Investment Advisor shall take
all steps reasonably necessary after such termination to
complete any such transactions and is hereby authorized to take
such steps.
12. Amendments. This Agreement may be amended at any time
but only by the mutual agreement of the parties, and consistent
with the requirements of the 1940 Act..
13. Proxies. Unless the Corporation gives written
instructions to the contrary, the Investment Advisor shall vote
all proxies solicited by or with respect to the issuers of
securities in the Portfolios. The Investment Advisor shall
maintain a record of how the Investment Advisor voted and such
record shall be available to the Corporation upon its request.
The Investment Advisor shall use its best good faith judgment to
vote such proxies in a manner which best serves the interests of
the Funds' shareholders.
14. Notices. Any written notice required by or pertaining
to this Agreement shall be personally delivered to the party for
whom it is intended, at the address stated below, or shall be
sent to such party by prepaid first class mail or facsimile.
If to the Corporation:
Forward Funds, Inc.:
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
If to the Investment Advisor:
Forward Management, LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
15. Confidential Information. The Investment Advisor shall
maintain the strictest confidence regarding the business affairs
of the Funds. Written reports furnished by the Investment
Advisor to the Corporation shall be treated by the Corporation
and the Investment Advisor as confidential and for the exclusive
use and benefit of the Corporation except as disclosure may be
required by applicable law.
16. Use of Names. It is understood that the names "Forward
Funds, Inc.," "Forward Management," and "Forward Funds" or any
derivative thereof or logo associated with those names are the
valuable property of the Investment Advisor and its affiliates,
and that the Fund and/or the Fund have the right to use such
names (or derivatives or logos) only so long as this Agreement
shall continue with respect to such Fund and/or Fund. Upon
termination of this Agreement, the Fund (or Fund) shall
forthwith cease to use such names (or derivatives or logos) and,
in the case of the Fund, shall promptly amend its Articles of
Incorporation to change its name (if such name is included
therein) and remove Forward Funds logos.
17. Corporation Obligation. A copy of the Corporation's
Articles of Incorporation, as amended, is on file with the State
of Maryland and notice is hereby given that this Agreement has
been executed on behalf of the Corporation by a Director or
officer of the Corporation in his or her capacity as such and
not individually. The obligations of this Agreement shall only
be binding upon the assets and property of the Corporation and
shall not be binding upon any director, officer or shareholder
of the Corporation individually. The debts, liabilities,
obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular Fund shall be enforceable
against the assets and property of that Fund only, and not
against the assets or property of any other series of the
Corporation, or against any of the Directors, officers,
employees or shareholders of the Corporation individually.
18. Miscellaneous.
(a) This Agreement shall be governed by the laws of the
State of California, provided that nothing herein shall be
construed in a manner inconsistent with the 1940 Act, the
Advisers Act, or rules or orders of the SEC thereunder.
(b) Concurrently with the execution of this Agreement, the
Investment Advisor is delivering to the Corporation a copy of
Part II of its Form ADV, as revised, on file with the Securities
and Exchange Commission. The Corporation hereby acknowledges
receipt of such copy.
(c) The captions of this Agreement are included for
convenience only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or
effect.
(d) If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise,
the remainder of this Agreement shall not be affected hereby
and, to this extent, the provisions of this Agreement shall be
deemed to be severable.
(e) Nothing herein shall be construed as constituting the
Investment Advisor as an agent of the Corporation or the Funds.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as
of May 1, 2005.
FORWARD FUNDS, INC.
By: /s/ X. Xxxx Xxxx, Xx.
Name: X. Xxxx Xxxx, Xx.
Title: President
FORWARD MANAGEMENT, LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
EXHIBIT A
FUND ADVISORY FEE
Forward Xxxxxx Small Cap Equity Fund 1.05%
Forward Global Emerging Markets Fund 1.25%
Forward Hansberger International Growth
Fund 0.85% up to $50 million
0.75% over $50 million up to
$100 million
0.65% over $100 million up to
$250 million
0.60% over $250 million up to
$500 million
0.55% over $500 million
Forward International Small Companies Fund 1.00%
Forward Uniplan Real Estate Investment Fund 0.85% up to $100 million
0.80% over $100 up to $500
million
0.70% over $500 million
Forward Xxxxxx Mini-Cap Fund 1.05%
Forward Legato Fund 1.00% up to $500 million
0.85% over $500 million
Sierra Club Stock Fund 1.00%
Sierra Club Equity Income Fund 0.94%
77Q1(e)(6)
UNIPLAN INVESTMENT SUB-ADVISORY AGREEMENT
FORWARD FUNDS, INC.
INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT, effective as of May 1, 2005, among Forward Uniplan
Advisors, Inc. (the "Sub-Adviser"), Forward Management, LLC (the
"Adviser") and Forward Funds, Inc. (the "Company"), on behalf of the
Sierra Club Equity Income Fund (the "Equity Income Fund"), a series
of the Company.
WHEREAS, the Company is a Maryland corporation of the series type
organized under Articles of Incorporation dated October 3, 1997 (the
"Articles") and is registered under the Investment Company Act of
1940, as amended (the "1940 Act") as an open-end, diversified
management investment company, and the Fund is a series of the
Company; and
WHEREAS, the Adviser has been retained by the Company to provide
investment advisory services to the Fund with regard to the Fund's
investments as further described in the Company's registration
statement on Form N-1A (the "Registration Statement") and pursuant to
an Investment Management Agreement dated December 31, 2002
("Investment Management Agreement"); and
WHEREAS, the Adviser has entered into a Securities Industry Licensing
Agreement dated August 19, 2002 with the Sierra Club (the "Sierra
Club Agreement") to operate certain mutual funds that use the Sierra
Club's investment screen, marks and other content; and
WHEREAS, the Fund has been organized to serve as one of the first
exclusive environmentally branded mutual fund products of the Company
for which the investment activities will be conducted in a manner
consistent with the principles and standards espoused by the Sierra
Club; and
WHEREAS, the Company's Board of Directors (the "Directors"),
including a majority of the directors who are not "interested
persons," as defined in the 1940 Act, and the Fund's stockholders
have approved the appointment of the Sub-Adviser to perform certain
investment advisory services for the Company, on behalf of the Fund
pursuant to this Sub-Advisory Agreement and as described in the
Registration Statement and the Sub-Adviser is willing to perform such
services for the Fund; and
WHEREAS, the Sub-Adviser is registered as an investment adviser under
the Investment Advisers Act of 1940, as amended ("Advisers Act");
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed among the Adviser, the Company and the
Sub-Adviser as follows:
1. Appointment. The Adviser hereby appoints the Sub-Adviser to
perform advisory services to the Fund for the periods and on the
terms set forth in this Sub-Advisory Agreement. The Sub-Adviser
accepts such appointment and agrees to furnish the services herein
set forth, for the compensation herein provided.
2. Investment Advisory Duties. Subject to the supervision of the
Directors and the Adviser, the Sub-Adviser will, in coordination with
the Adviser as described below, (a) provide a program of continuous
investment management for the Fund; (b) make investment decisions for
the Fund; and (c) place orders to purchase and sell securities for
the Fund. The Sub-Adviser will provide the Adviser with a list of any
potential investments not already on the then-current list of
Environmentally Qualified Investments, as defined below. The Adviser
will then evaluate those potential investments using applicable
environmental screens and other criteria used by the Adviser or
required by the Sierra Club for the purpose of preliminarily
determining which investments the Adviser believes are acceptable.
The Adviser will then submit those preliminary investments to the
Sierra Club to review and approve or reject based on the Sierra
Club's application of its proprietary environmental screens and
criteria. The investments that pass the Adviser's and the Sierra
Club's environmental screening for use by the Sub-Adviser are
referred to as "Environmentally Qualified Investments." In performing
its sub-advisory responsibilities under this Agreement for the Fund,
the Sub-Adviser agrees to manage the Fund's investments according to
the Fund's investment objectives, policies and limitations as stated
in the Fund's Prospectus and Statement of Additional Information
included as part of the Fund's then-current Registration Statement
filed with the Securities and Exchange Commission, as it may be
amended from time to time (the "Registration Statement"). The Sub-
Adviser agrees to select among only those investments contained on
the then-current list of Environmentally Qualified Investments, or
investments that are government securities (within the meaning of
Section 2(a)(16) of the 1940 Act, "Government Securities"). The
Adviser agrees to make available to the Sub-Adviser an updated list
of Environmentally Qualified Investments, which may be revised from
time to time, promptly after the list is revised. Notwithstanding
anything to the contrary in this paragraph, the Sub-Adviser will
submit to the Adviser for consideration or purchase only those
potential investments that the Sub-Adviser reasonably believes in
good faith are not environmentally offensive.
In performing its investment management services to the Fund under
the terms of this Agreement, the Sub-Adviser will provide the Fund
with ongoing investment guidance and policy direction.
The Sub-Adviser further agrees that, in performing its duties
hereunder, it will:
(a) comply with the 1940 Act and all rules and regulations
thereunder, the Advisers Act, the U.S. Internal Revenue Code of 1986,
as amended (the "Code") and all other applicable federal and state
laws and regulations, and with any applicable procedures adopted by
the Directors, as they may be amended from time to time, copies of
which shall be provided to the Sub-Adviser by the Adviser promptly
after adoption by the Directors;
(b) use reasonable efforts to manage the Fund so that it will
qualify, and continue to qualify, as a regulated investment company
under Subchapter M of the Code and regulations issued thereunder;
provided, however, the Sub-Adviser shall not be responsible for the
tax effect or decisions made by any other person;
(c) place orders pursuant to its investment determinations for the
Fund, in accordance with applicable policies expressed in the Fund's
then-current Prospectus and/or Statement of Additional Information,
established through written guidelines determined by the Fund and
provided in writing to the Sub-Adviser;
(d) furnish to the Company and the Adviser whatever statistical
information and other reports the Company or the Adviser may
reasonably request with respect to the Fund's assets or contemplated
investments. In addition, the Sub-Adviser will keep the Adviser
informed of developments that, in the Sub-Adviser's reasonable
judgment, materially affect the Fund's portfolios and shall, on the
Sub-Adviser's own initiative, furnish to the Adviser from time to
time whatever information the Sub-Adviser believes appropriate for
this purpose;
(e) make available to the Fund's administrator, PFPC Inc. (the
"Administrator"), the Adviser and the Company, promptly upon their
request and at the reasonable expense of the Company, such copies of
their investment records and ledgers with respect to the Fund as may
be required to assist the Adviser, the Administrator and the Company
in their compliance with applicable laws and regulations. The Sub-
Adviser will furnish the Directors, the Administrator, the Adviser
and the Company with such periodic and special reports regarding the
Fund as they may reasonably request;
(f) meet quarterly with the Adviser and the Company's Board of
Directors to explain its investment management activities, and any
reports related to the Fund as may reasonably be requested by the
Adviser and/or the Company;
(g) immediately notify the Adviser and the Company if the Sub-Adviser
or any of its affiliates: (1) becomes aware that it is subject to a
statutory disqualification that prevents the Sub-Adviser from serving
as an investment adviser pursuant to this Sub-Advisory Agreement; or
(2) becomes aware that it is the subject of an administrative
proceeding or enforcement action by the Securities and Exchange
Commission ("SEC") or other regulatory authority. The Sub-Adviser
further agrees to notify the Company and the Adviser immediately of
any material fact known to the Sub-Adviser respecting or relating to
the Sub-Adviser that is not contained in the Registration Statement,
or any amendment or supplement thereto, but that is required to be
disclosed therein, and of any statement contained therein that
becomes untrue in any material respect;
(h) immediately notify the Adviser if the Sub-Adviser suffers a
material adverse change in its business that would materially impair
its ability to perform its relevant duties for the Fund. For the
purposes of this paragraph, a "material adverse change" shall
include, but is not limited to, the termination or failure to renew
advisory contracts within any six-month period with the Sub-Adviser
with respect to 20% or more of its assets under management, or the
departure of senior investment professionals involved in the Sub-
Adviser's investment management activities under this Agreement to
the extent such professionals are not replaced promptly with
professionals of comparable experience and quality; and
(i) in making investment decisions for the Fund, not knowingly use
material non-public information that may be in its possession or in
the possession of any of its affiliates, nor will the Sub-Adviser
seek to obtain any such information.
3. Futures and Options. The Sub-Adviser's investment authority shall
include, to the extent permitted under Section 2, the authority to
purchase, sell, cover open positions, and generally to deal in
financial futures contracts and options thereon.
The Sub-Adviser is authorized to: (i) open and maintain brokerage
accounts for financial futures and options (such accounts hereinafter
referred to as "Brokerage Accounts") on behalf of and in the names of
the Fund; and (ii) execute for and on behalf of the Fund's Brokerage
Accounts, standard customer agreements with a broker or brokers. The
Sub-Adviser may, using such of the securities and other property in
the Brokerage Accounts as the Sub-Adviser deems necessary or
desirable, direct the custodian to deposit on behalf of the Fund,
original and maintenance brokerage deposits and otherwise direct
payments of cash, cash equivalents and securities and other property
into such brokerage accounts and to such brokers as the Sub-Adviser
deems desirable or appropriate.
4. Investment Guidelines. In addition to the information to be
provided to the Sub-Adviser under Section 2 hereof, the Company or
the Adviser shall promptly supply the Sub-Adviser with such other
information as the Sub-Adviser shall reasonably require or request
concerning the Fund's investment policies, restrictions, limitations,
tax positions, liquidity requirements and other information useful in
managing the Fund's investments.
The Sub-Adviser, from time to time in its discretion, may suggest
additional securities and issuers to the Adviser. Notwithstanding
anything to the contrary in this paragraph, the Sub-Adviser will
submit to the Adviser for consideration only those potential
investments that the Sub-Adviser reasonably believes in good faith
are not environmentally offensive. The Adviser will inform the Sub-
Adviser as to the appropriateness of such investments for addition to
the list of Environmentally Qualified Investments.
5. Representations, Warranties and Covenants of the Company, Adviser
and Sub-Adviser. The Company represents, warrants and covenants that
(i) a copy of its Registration Statement together with all amendments
thereto, is on file in the office of the U.S. Securities and Exchange
Commission, (ii) the appointment of the Adviser has been duly
authorized, (iii) the appointment of the Sub-Adviser has been duly
authorized, and (iv) it has acted and will continue to act in
conformity with all applicable laws.
The Adviser represents, warrants and covenants that (i) it is
authorized to perform the services herein, (ii) the appointment of
the Sub-Adviser has been duly authorized, and (iii) it has and will
continue to act in conformity with all applicable laws.
The Sub-Adviser represents and warrants that (i) it is registered as
an investment adviser with the SEC, and (ii) it is not barred by
operation of law, or any rule, or order of the SEC or any other
regulatory body from acting as an investment adviser.
6. Use of Securities Brokers and Dealers. Purchase and sale orders
will be placed with brokers that are selected by the Sub-Adviser as
able to achieve "best execution" of such orders. "Best execution"
shall mean prompt and reliable execution at the most favorable
securities price, taking into account the other provisions
hereinafter set forth. Whenever the Sub-Adviser places orders, or
directs the placement of orders, for the purchase or sale of
portfolio securities on behalf of the Fund, in selecting brokers or
dealers to execute such orders, the Sub-Adviser is expressly
authorized to consider the fact that a broker or dealer has furnished
statistical, research or other information or services which enhance
the Sub-Adviser's research and portfolio management capability
generally. It is further understood in accordance with Section 28(e)
of the Securities Exchange Act of 1934, as amended (the "1934 Act"),
that the Sub-Adviser may negotiate with and assign to a broker a
commission which may exceed the commission which another broker would
have charged for effecting the transaction if the Sub-Adviser
determines in good faith that the amount of commission charged was
reasonable in relation to the value of brokerage and/or research
services (as defined in Section 28(e)) provided by such broker,
viewed in terms either of the Fund or the Sub-Adviser's overall
responsibilities to the Sub-Adviser's discretionary accounts.
Neither the Sub-Adviser nor any parent, subsidiary or related firm
shall act as a securities broker with respect to any purchases or
sales of securities which may be made on behalf of the Fund, except
as may be permitted under the 1940 Act. Unless otherwise directed by
the Company or the Adviser in writing, the Sub-Adviser may utilize
the service of whatever independent securities brokerage firm or
firms it deems appropriate to the extent that such firms are
competitive with respect to price of services and execution.
7. Compensation. For the services specified in this Agreement, the
Company agrees to pay compensation to the Sub-Adviser equal to an
annual rate specified below for the Fund's assets managed by the Sub-
Adviser (the "Sub-Advisory Fee"). The Sub-Advisory Fee shall be
computed and accrued daily and paid quarterly in arrears based on the
average daily net asset value of the Fund as determined according to
the manner provided in the then-current prospectus of the Fund.
TOTAL ASSETS OF THE FUND EQUITY INCOME
MANAGED BY THE SUB-ADVISER FUND ASSETS
(ANNUAL RATES APPLY TO THE (ANNUAL RATES)
PORTION OF ASSETS AT THE
CORRESPONDING LEVEL)
Less than $100 million 0.41%
$100 million to less than $250 million 0.32%
$250 million to less than $500 million 0.27%
$500 million and over 0.24%
8. Fees and Expenses. The Sub-Adviser shall not be required to pay
any expenses of the Fund other than those specifically allocated to
the Sub-Adviser in this Section 8. In particular, but without
limiting the generality of the foregoing, the Sub-Adviser shall not
be responsible for the following expenses of the Fund: organization
and offering expenses of the Fund; fees payable to the Sub-Adviser
and to any other Fund advisers or consultants; legal expenses;
auditing and accounting expenses; interest expenses; taxes and
governmental fees; fees, dues and expenses incurred by or with
respect to the Fund in connection with membership in investment
company trade organizations; cost of insurance relating to fidelity
coverage for the Company's officers and employees; fees and expenses
of the Fund's Administrator or of any custodian, subcustodian,
transfer agent, registrar, or dividend disbursing agent of the Fund;
payments to the administrator for maintaining the Fund's financial
books and records and calculating daily net asset values; other
payments for portfolio pricing or valuation services to pricing
agents, accountants, bankers and other specialists, if any; expenses
of preparing share certificates; other expenses in connection with
the issuance, offering, distribution or sale of securities issued by
the Fund; expenses relating to investor and public relations;
expenses of registering and qualifying shares of the Fund for sale;
freight, insurance and other charges in connection with the shipment
of the Fund's portfolio securities; brokerage commissions or other
costs of acquiring or disposing of any portfolio securities or other
assets of the Fund, or of entering into other transactions or
engaging in any investment practices with respect to the Fund;
expenses of printing and distributing Prospectuses, Statements of
Additional Information, reports, notices and dividends to
stockholders; costs of stationery or other office supplies; any
litigation expenses; costs of stockholders' and other meetings; and
the compensation and all expenses (specifically including travel
expenses relating to the Fund's business) of officers, directors and
employees of the Company.
9. Books and Records. The Sub-Adviser agrees to maintain such books
and records with respect to its services to the Fund as are required
by Section 31 under the 1940 Act, and rules adopted thereunder, and
by other applicable legal provisions, and to preserve such records
for the periods and in the manner required by that Section, and those
rules and legal provisions. The Sub-Adviser also agrees that records
it maintains and preserves pursuant to Rules 31a-1 and Rule 31a-2
under the 1940 Act and otherwise in connection with its services
hereunder are the property of the Fund and will be surrendered
promptly to the Company upon its request except that the Sub-Adviser
may retain copies of such documents. The Sub-Adviser further agrees
that it will furnish to regulatory authorities having the requisite
authority any information or reports in connection with its services
hereunder which may be requested by such authorities in order to
determine whether the operations of the Fund are being conducted in
accordance with applicable laws and regulations.
10. Aggregation of Orders. Provided the investment objectives,
policies and restrictions of the Fund are adhered to, the Fund agrees
that the Sub-Adviser may aggregate sales and purchase orders of
securities held in the Fund with similar orders being made
simultaneously for other accounts managed by the Sub-Adviser or with
accounts of the affiliates of the Sub-Adviser, if in the Sub-
Adviser's reasonable judgment such aggregation shall result in an
overall economic benefit to the Fund taking into consideration the
advantageous selling or purchase price, brokerage commission and
other expenses. The Fund acknowledge that the determination of such
economic benefit to the Fund by the Sub-Adviser represents the Sub-
Adviser's evaluation that the Fund is benefited by relatively better
purchase or sales prices, lower commission expenses and beneficial
timing of transactions or a combination of these and other factors.
11. Liability. Neither the Sub-Adviser nor its officers, directors,
employees, affiliates, agents or controlling persons shall be liable
to the Company, the Fund, its shareholders and/or any other person
for the acts, omissions, errors of judgment and/or mistakes of law of
any other fiduciary and/or person with respect to the Fund.
Neither the Sub-Adviser nor its officers, directors, employees,
affiliates, agents or controlling persons or assigns shall be liable
for any act, omission, error of judgment or mistake of law (whether
or not deemed a breach of this Agreement) and/or for any loss
suffered by the Company, the Fund, its shareholders and/or any other
person in connection with the matters to which this Agreement
relates; provided that no provision of this Agreement shall be deemed
to protect the Sub-Adviser against any liability to the Company, the
Fund and/or its shareholders to which it might otherwise be subject
by reason of any willful misfeasance, bad faith or gross negligence
in the performance of its duties or the reckless disregard of its
obligations and duties under this Agreement.
The Company, on behalf of the Fund, hereby agrees to indemnify and
hold harmless the Sub-Adviser, its directors, officers, employees,
affiliates, agents and controlling persons (collectively, the
"Indemnified Parties") against any and all losses, claims damages or
liabilities (including reasonable attorneys fees and expenses), joint
or several, relating to the Company or Fund, to which any such
Indemnified Party may become subject under the Securities Act of
1933, as amended (the "1933 Act"), the 1934 Act, the Investment
Advisers Act of 1940, as amended (the "Advisers Act") or other
federal or state statutory law or regulation, at common law or
otherwise. It is understood, however, that nothing in this paragraph
11 shall protect any Indemnified Party against, or entitle any
Indemnified Party to, indemnification against any liability to the
Company, the Fund or its shareholders to which such Indemnified Party
is subject, by reason of its willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of any
reckless disregard of its obligations and duties under this
Agreement.
12. Limited Exclusivity. The Sub-Adviser agrees that it will not
provide similar services to any other mutual fund which holds itself
out to the public as "Environmentally Qualified" or otherwise
"Socially Responsible" within the common meanings of those terms.
Other than that, it is understood that the services of the Sub-
Adviser are not exclusive, and that nothing in this Agreement shall
prevent the Sub-Adviser from providing similar services to other
investment advisory clients, including but not by way of limitation,
investment companies or to other series of investment companies,
including the Company (whether or not their investment objectives and
policies are similar to those of the Fund) or from engaging in other
activities, provided such other services and activities do not,
during the term of this Agreement, interfere in a material manner
with the Sub-Adviser's ability to meet its obligations to the Fund
hereunder. When the Sub-Adviser recommends the purchase or sale of a
security for other investment companies and other clients, and at the
same time the Sub-Adviser recommends the purchase or sale of the same
security for the Fund, it is understood that in light of its
fiduciary duty to the Fund, such transactions will be executed on a
basis that is fair and equitable to the Fund. If the Sub-Adviser
provides any advice to its clients concerning the shares of the Fund,
the Sub-Adviser shall act solely as investment counsel for such
clients and not in any way on behalf of the Company or the Fund.
The Sub-Adviser provides investment advisory services to numerous
other investment advisory clients, including but not limited to other
funds and may give advice and take action which may differ from the
timing or nature of action taken by the Sub-Adviser with respect to
the Fund. Nothing in this Agreement shall impose upon the Sub-Adviser
any obligations other than those imposed by law to purchase, sell or
recommend for purchase or sale, with respect to the Fund, any
security which the Sub-Adviser, or the shareholders, officers,
directors, employees or affiliates may purchase or sell for their own
account or for the account of any client.
13. Materials. The Adviser shall not publish or distribute or allow
the Fund to publish or distribute any advertising or promotional
material regarding the provision of investment advisory services by
the Sub-Adviser pursuant to this Agreement, without the prior written
consent of the Sub-Adviser, which consent shall not be unreasonably
withheld or delayed. If the Sub-Adviser has not notified the Adviser
of its disapproval of sample materials within twenty (20) days after
its receipt thereof, such materials shall be deemed approved.
Materials substantially similar to materials approved on an earlier
occasion shall also be deemed approved. The Sub-Adviser will be
provided with any Registration Statements containing references or
information with respect to the Sub-Adviser at least three business
days before filing of same with any regulatory authority and afforded
the opportunity to comment thereon. The Company agrees to make any
changes to the information in any Registration Statement with respect
to the Sub-Adviser as may be necessary so that there are no untrue
statements of a material fact or omissions to state a material fact
regarding the Sub-Adviser and its duties with respect to the Fund.
The Sub-Adviser shall not use any proprietary markings or materials
of the Sierra Club, including, without limitation, the Sierra Club
Marks (as defined below), without the prior written approval of the
Adviser and the Sierra Club. "Sierra Club Marks" means the Sierra
Club's trademarks (including wordmarks, designs and logos), service
marks, tradedress, taglines and tradenames used, adopted or otherwise
protected by the Sierra Club.
14. Duration and Termination. This Agreement shall continue until
December 31, 2006, and thereafter shall continue automatically for
successive annual periods, provided such continuance is specifically
approved at least annually by (i) the Directors or (ii) a vote of a
"majority" (as defined in the 1940 Act) of the Fund's outstanding
voting securities (as defined in the 1940 Act), provided that in
either event the continuance is also approved by a majority of the
Directors who are not parties to this Agreement or "interested
persons" (as defined in the 1940 Act) of any party to this Agreement,
by vote cast in person at a meeting called for the purpose of voting
on such approval.
Notwithstanding the foregoing, this Agreement may be terminated: (a)
at any time without penalty by the Fund upon the vote of a majority
of the Directors or by vote of the majority of the Fund's outstanding
voting securities, upon no more than sixty (60) and no fewer than
twenty-five (25) days' written notice to the Sub-Adviser; (b) by the
Adviser at any time without penalty, upon no more than sixty (60) and
no fewer than twenty-five (25) days' written notice to the Sub-
Adviser or (c) by the Sub-Adviser at any time without penalty, upon
no more than sixty (60) and no fewer than thirty (30) days' written
notice to the Company. This Agreement will also terminate
automatically in the event of its assignment (as defined in the 1940
Act).
The Agreement will terminate automatically if the Investment
Management Agreement terminates with respect to the Fund. The Adviser
agrees to immediately notify the Sub-Adviser of the giving of or
receipt of a notice with respect to the termination of the Investment
Management Agreement with respect to the Fund, or, in the case of an
automatic termination of that Agreement, the Adviser agrees to
immediately notify the Sub-Adviser of that termination.
Further, the Adviser may terminate this Agreement upon the
instruction or request by the Sierra Club at any time,
notwithstanding the notice period stated above, based on past,
present or future conduct of the Sub-Adviser in respect of
environmental issues that the Sierra Club determines (i) constitutes
a Termination Default (as defined below), (ii) violates Sierra Club
environmental principles or standards, or (iii) results in an
affiliation, relationship or dealings with an entity engaged in
conduct, acts or omissions that are environmentally offensive in the
judgment of the Sierra Club.
Any termination of this Agreement will be without prejudice to the
completion of transactions already initiated by the Sub-Adviser on
behalf of the Fund at the time of such termination. The Sub-Adviser
shall take all steps reasonably necessary after such termination to
complete any such transactions and is hereby authorized to take such
steps.
"Termination Default" means (a) the purchase by the Fund of a
security, other than a Government Security, (i) issued by an entity
that was not on the then-current list of Environmentally Qualified
Investments provided to the Sub-Adviser at or before the time of
purchase, or (ii) not included among securities the Sierra Club or
the Adviser has otherwise indicated in writing would be added to such
a list, if such purchase of a security under (i) or (ii) is not
promptly cured at no cost to the Fund within thirty (30) days after
the Sub-Adviser receives notice of that improper purchase, or (b)
except to the extent the Sub-Adviser has taken reasonable efforts to
dispose of the affected security, the continued holding by the Fund
of a security, other than a Government Security, issued by an entity
that the Sierra Club has removed from the list of Environmentally
Qualified Investments, provided the Sierra Club or the Adviser has
given thirty (30) days' prior written notice of such removal to the
Sub-Adviser, if any such holding after removal from the list is not
promptly cured at no cost to the Fund, or (c) events that are part of
a sequence of violations of these prohibitions.
If there occurs an affiliation, relationship or dealing by the Sub-
Adviser with an entity engaged in conduct, acts or omissions that are
environmentally offensive in the judgment of the Sierra Club, and the
Sierra Club gives the Adviser notice that the Sierra Club intends to
exercise (or has exercised) its right to withdraw the license under
the Sierra Club Agreement with respect to the Fund or the Sub-
Adviser, the Adviser agrees to promptly notify the Sub-Adviser
accordingly. After the Sub-Adviser receives that notice, the Sub-
Adviser shall have the choice to do either of the following: (a) give
written notice to the Adviser of termination of this Agreement with
respect to the Fund at least twenty-five (25) days in advance, which
will so terminate this Agreement at the conclusion of that 25-day
period; or (b) waive its Sub-Advisory Fee with respect to the Fund
and/or remit to Adviser amounts equal to the compensation payable by
the Adviser to the Sierra Club under the Sierra Club Agreement with
respect to a withdrawal of the license for that reason, which will be
either the compensation that otherwise would have been payable by the
Adviser to the Sierra Club for one (1) year had no termination
occurred (based on assets upon termination), or the compensation
payable by the Adviser to the Sierra Club under the Sierra Club
Agreement with respect to a withdrawal of the license for that
reason, which is one-half of the compensation that otherwise would
have been payable by the Adviser to the Sierra Club for the term of
the Sierra Club Agreement with respect to the Fund.
Subject to subparagraph (a) above, these requirements to waive the
Sub-Advisory Fee and/or pay the Adviser as a result of the
termination of this Agreement shall survive the termination of this
Agreement.
15. Amendments. This Agreement may be amended at any time but only by
the mutual agreement of the parties and, to the extent required by
the 1940 Act, subject to receipt of requisite stockholder approval by
the Company or applicable Fund.
16. Proxies. Unless the Company gives written instructions to the
contrary, the Sub-Adviser shall vote all proxies solicited by or with
respect to the issuers of securities held by the Fund. The Sub-
Adviser shall maintain a record of how the Sub-Adviser voted and such
record shall be available to the Company upon its request. The Sub-
Adviser agrees to seek instructions from the Adviser (or its
delegate) with respect to how it shall vote proxies a reasonable
period before it is required to vote them. The Sub-Adviser
acknowledges that it will be instructed to vote proxies in a manner
that the Adviser believes best serves the interests of the Fund's
shareholders and that is consistent with the principles and standards
espoused by the Sierra Club.
17. Notices. Any written notice required by or pertaining to this
Agreement shall be personally delivered to the party for whom it is
intended, at the address stated below, or shall be sent to such party
by prepaid first class mail or facsimile.
If to the Company:
Forward Fund, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
If to the Sub-Adviser:
Forward Uniplan Advisors, Inc.
00000 X. Xxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
If to the Adviser:
Forward Management, LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
18. Confidential Information. The Sub-Adviser shall maintain the
strictest confidence regarding the business affairs of the Fund.
Written reports furnished by the Sub-Adviser to the Company and the
Adviser shall be treated by all of the parties as confidential and
for the exclusive use and benefit of the Company and the Fund except
as disclosure may be required by applicable law. Further, the Sub-
Adviser shall not specifically disclose the list of Environmentally
Qualified Investments to any third party without the express written
permission of the Adviser and the Sierra Club, except as shall be
required by law and, if reasonably possible, with prior notice to the
Adviser and the Sierra Club.
Notwithstanding any provision herein to the contrary, the Sub-Adviser
hereto agrees on behalf of itself and its directors, officers, and
employees (1) to treat confidentially and as proprietary information
of the Company (a) all records and other information relative to the
Fund and their prior, present or potential shareholders (and clients
of said shareholders) and (b) any Nonpublic
Personal Information, as defined under Section 248.3(t) of Regulation
S-P ("Regulation S-P)", promulgated under the Xxxxx-Xxxxx-Xxxxxx Act
(the "Act"), and (2) not to use such records and information for any
purpose other than the performance of its responsibilities and duties
hereunder, or as otherwise permitted by the privacy policies adopted
by the Company, Regulation S-P or the Act, except after prior
notification to and approval in writing by the Company. Such written
approval shall not unreasonably be withheld by the Company and may
not be withheld where the Sub-Adviser may be exposed to civil or
criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted
authorities, or when so requested by the Company. The Sub-Adviser may
share the confidential and nonpublic information covered by this
paragraph with its employees and affiliates to the extent reasonably
necessary to perform its duties under this Agreement.
19. Third Party Beneficiary. The Adviser and Sub-Adviser agree that
the Sierra Club is a third party beneficiary to this Agreement.
20. Miscellaneous.
(a) This Agreement shall be governed by the laws of the State of
California, provided that nothing herein shall be construed in a
manner inconsistent with the 1940 Act, the Advisers Act, or rules or
orders of the SEC thereunder.
(b) Concurrently with the execution of this Agreement, the Sub-
Adviser is delivering to the Adviser and the Company a copy of Part
II of its Form ADV, as revised, on file with the SEC. The Adviser and
the Company hereby acknowledge receipt of such copy.
(c) The captions of this Agreement are included for convenience only
and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
(d) If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby and, to this extent, the
provisions of this Agreement shall be deemed to be severable.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of May 1, 2005.
FORWARD FUNDS, INC.
By: /s/ X. Xxxx Xxxx, Xx.
Name: X. Xxxx Xxxx, Xx.
Title: President
FORWARD UNIPLAN ADVISORS, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: President
FORWARD MANAGEMENT, LLC
By: /s/ X. Xxxx Xxxx, Xx.
Name: X. Xxxx Xxxx, Xx.
Title: President
