AMENDED AND RESTATED
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of December 30, 1998, and
as amended and restated as of February 23, 2000, between STRONG CAPITAL
MANAGEMENT, INC. (the "Adviser"), a Wisconsin corporation registered under the
Investment Advisers Act of 1940, as amended (the "Advisers Act"), and NEXT
CENTURY GROWTH INVESTORS, LLC (the "Subadviser"), a Delaware limited liability
company registered under the Advisers Act.
WITNESSETH:
WHEREAS, Strong U.S. Emerging Growth Fund (the "Fund"), a series of
the Strong Equity Funds, Inc., a Wisconsin corporation, is registered with the
U.S. Securities and Exchange Commission (the "Commission") as a series fund of
an open-end management investment company under the Investment Company Act of
1940, as amended (the "Investment Company Act");
WHEREAS, the Advisory Agreement permits the Adviser to delegate
certain of its duties under the Advisory Agreement to other investment
advisers, subject to the requirements of the Investment Company Act; and
WHEREAS, the Adviser desires to retain the Subadviser as subadviser
for the Fund to act as investment adviser for and to manage the Fund's
Investments (as defined below) and the Subadviser desires to render such
services.
NOW, THEREFORE, the Adviser and Subadviser do mutually agree and
promise as follows:
1. APPOINTMENT AS SUBADVISER. The Adviser hereby retains the
Subadviser to act as investment adviser for and to manage certain assets of the
Fund subject to the supervision of the Adviser and the Board of Directors of
the Fund and subject to the terms of this Agreement; and the Subadviser hereby
accepts such employment. In such capacity, the Subadviser shall be responsible
for the Fund's investments.
2. DUTIES OF SUBADVISER.
(a) INVESTMENTS. The Subadviser is hereby authorized and
directed and hereby agrees, subject to the stated investment policies and
restrictions of the Fund as set forth in the Fund's current prospectus and
statement of additional information as currently in effect and as supplemented
or amended from time to time (collectively referred to hereinafter as the
"Prospectus") and subject to the directions of the Adviser
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and the Fund's Board of Directors, to purchase, hold and sell investments for
the account of the Fund (hereinafter "Investments") and to monitor on a
continuous basis the performance of such Investments.
(b) ALLOCATION OF BROKERAGE. The Subadviser is authorized,
subject to the supervision of the Adviser and the Board of Directors of the
Fund, to place orders for the purchase and sale of the Fund's Investments with
or through such persons, brokers or dealers, and to negotiate commissions to be
paid on such transactions in accordance with the Fund's policy with respect to
brokerage as set forth in the Prospectus. The Subadviser may, on behalf of the
Fund, pay brokerage commissions to a broker which provides brokerage and
research services to the Subadviser in excess of the amount another broker
would have charged for effecting the transaction, provided (i) the Subadviser
determines in good faith that the amount is reasonable in relation to the value
of the brokerage and research services provided by the executing broker in
terms of the particular transaction or in terms of the Subadviser's overall
responsibilities with respect to the Fund and the accounts as to which the
Subadviser exercises investment discretion, (ii) such payment is made in
compliance with Section 28(e) of the Securities Exchange Act of 1934, as
amended, and any other applicable laws and regulations, and (iii) in the
opinion of the Subadviser, the total commissions paid by the Fund will be
reasonable in relation to the benefits to the Fund over the long term. It is
recognized that the services provided by such brokers may be useful to the
Subadviser in connection with the Subadviser's services to other clients. On
occasions when the Subadviser deems the purchase or sale of a security to be in
the best interests of the Fund as well as other clients of the Subadviser, the
Subadviser, to the extent permitted by applicable laws and regulations, may,
but shall be under no obligation to, aggregate the securities to be sold or
purchased in order to obtain the most favorable price or lower brokerage
commissions and efficient execution. In such event, allocation of securities
so sold or purchased, as well as the expenses incurred in the transaction, will
be made by the Subadviser in the manner the Subadviser considers to be the most
equitable and consistent with its fiduciary obligations to the Fund and to such
other clients.
(c) SECURITIES TRANSACTIONS. The Subadviser and any affiliated
person of the Subadviser will not purchase securities or other instruments from
or sell securities or other instruments to the Fund; PROVIDED, HOWEVER, the
Subadviser may purchase securities or other instruments from or sell securities
or other instruments to the Fund if such transaction is permissible under
applicable laws and regulations, including, without limitation, the Investment
Company Act and the Advisers Act and the rules and regulations promulgated
thereunder.
The Subadviser agrees to observe and comply with Rule 17j-1 under the
Investment Company Act and the Fund's Code of Ethics, as the same may be
amended from time to time (or, in the case of the Fund's Code of Ethics, to
adopt or have adopted a
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Code of Ethics that complies in all material respects with the requirements of
the Fund's Code of Ethics). The Subadviser will make available to the Adviser
or the Fund at any time upon request, including facsimile without delay, during
any business day any reports required to be made by the Subadviser pursuant to
Rule 17j-1 under the Investment Company Act.
(d) BOOKS AND RECORDS. The Subadviser will maintain all books
and records required to be maintained pursuant to the Investment Company Act
and the rules and regulations promulgated thereunder with respect to
transactions made by it on behalf of the Fund including, without limitation,
the books and records required by Subsections (b)(1), (5), (6), (7), (9), (10)
and (11) and Subsection (f) of Rule 31a-1 under the Investment Company Act and
shall timely furnish to the Adviser all information relating to the
Subadviser's services hereunder needed by the Adviser to keep such other books
and records of the Fund required by Rule 31a-1 under the Investment Company
Act. The Subadviser will also preserve all such books and records for the
periods prescribed in Rule 31a-2 under the Investment Company Act, and agrees
that such books and records shall remain the sole property of the Fund and
shall be immediately surrendered to the Fund upon request. The Subadviser
further agrees that all books and records maintained hereunder shall be made
available to the Fund or the Adviser at any time upon request, including
facsimile without delay, during any business day.
(e) INFORMATION CONCERNING INVESTMENTS AND SUBADVISER. From time
to time as the Adviser or the Fund may request, the Subadviser will furnish the
requesting party reports on portfolio transactions and reports on Investments
held in the portfolio, all in such detail as the Adviser or the Fund may
request. The Subadviser will also provide the Fund and the Adviser on a
regular basis with economic and investment analyses and reports or other
investment services normally available to institutional or other clients of the
Subadviser.
The Subadviser will make available its officers and employees to meet
with the Fund's Board of Directors at the Fund's principal place of business on
due notice to review the Investments of the Fund (through quarterly in-person
presentations). The Subadviser further agrees to inform the Fund and the
Adviser on a current basis of changes in investment strategy, tactics or key
personnel.
The Subadviser will also provide such information or perform such
additional acts as are customarily performed by a subadviser and may be
required for the Fund or the Adviser to comply with their respective
obligations under applicable laws, including, without limitation, the Internal
Revenue Code of 1986, as amended (the "Code"), the Investment Company Act, the
Advisers Act, the Securities Act of 1933, as amended (the "Securities Act") and
any state securities laws, and any rule or regulation thereunder.
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(f) CUSTODY ARRANGEMENTS. The Subadviser acknowledges receipt of
the Custody Agreement for the Fund, dated November 1, 1995, as amended, and the
Global Custody Agreement for the Fund, dated December 2, 1993, as amended, and
agrees to comply at all times with all requirements relating to such
arrangements to the extent applicable to the performance of the Subadviser's
obligations under this Agreement. The Subadviser shall provide the Adviser,
and the Adviser shall provide the Fund's custodian or global custodian, on each
business day with information relating to all transactions concerning the
Fund's assets.
(g) ADVISER REPRESENTATIVES. The Subadviser shall include at
least two (2) representatives of the Adviser, as specified by the Adviser, in
the list of individuals authorized to give directions (without restrictions of
any kind) to brokers and dealers utilized by the Subadviser to execute
portfolio transactions for the Fund and custodians or depositories that hold
securities or other assets of the Fund at any time. Subadviser shall have no
liability or responsibility for the actions of such representatives of the
Adviser. For so long as this Agreement is in effect, the Adviser will not
issue any instructions under this provision without prior notice to the
Subadviser.
(h) COMPLIANCE WITH APPLICABLE LAWS AND GOVERNING DOCUMENTS. The
Subadviser agrees that in all matters relating to its performance under this
Agreement, the Subadviser and its directors, officers, partners, employees and
interested persons, will act in accordance with all applicable laws, including,
without limitation, the Investment Company Act, the Advisers Act, the Code, the
Commodity Exchange Act, as amended (the "CEA") and state securities laws, and
any rules and regulations promulgated thereunder. The Subadviser further
agrees to act in accordance with the Fund's Articles of Incorporation, By-Laws,
currently effective registration statement under the Investment Company Act,
including any amendments or supplements thereto, and Notice of Eligibility
under Rule 4.5 of the CEA, if applicable, (collectively, "Governing Instruments
and Regulatory Filings") and any instructions or directions of the Fund, its
Board of Directors or the Adviser.
The Subadviser acknowledges receipt of the Fund's Governing
Instruments and Regulatory Filings. The Adviser hereby agrees to provide to
the Subadviser any amendments, supplements or other changes to the Governing
Instruments and Regulatory Filings as soon as practicable after such materials
become available and, upon receipt by the Subadviser, the Subadviser will act
in accordance with such amended, supplemented or otherwise changed Governing
Instruments and Regulatory Filings.
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(i) FUND'S NAME; ADVISER'S NAME. The Subadviser agrees that it
shall have no rights of any kind relating to the Fund's name, "Strong U.S.
Emerging Growth Fund" or in the name "Strong" as it is used in connection with
investment products, services or otherwise, and that it shall make no use of
such names without the express written consent of the Fund or the Adviser, as
the case may be.
(j) VOTING OF PROXIES. Unless the Subadviser directs otherwise,
the Subadviser directs the Adviser to vote, in accordance with the Adviser's
Proxy Voting Policies in effect from time to time, such proxies as may be
necessary or advisable in connection with the any matters submitted to a vote
of shareholders of securities held by the Fund.
3. SERVICES EXCLUSIVE.
(a) EXCLUSIVE INVESTMENT ADVISE. Except as provided in
Subsection (b) of this Section 3 or as otherwise agreed to in writing by the
Adviser, during the term of this Agreement, as provided in Section 14 hereof,
and for a period of two (2) years after the date the Subadviser gives notice to
the Adviser of its intention to terminate this Agreement or six (6) months
after the date the Adviser gives notice to the Subadviser of its intention to
terminate this Agreement, the Subadviser (which for purposes of this Section 3
shall also include any successors to the Subadviser), and any person or entity
controlled by, or under common control with, the Subadviser, shall not act as
investment adviser or subadviser, or otherwise render investment advice to, or
sponsor, promote or distribute, any investment company or comparable entity
registered under the Investment Company Act or other investment fund consisting
of more than 100 investors that is offered publicly but is not subject to the
registration requirements of the Investment Company Act that is substantially
similar to the Fund.
(b) EXCEPTIONS. The Subadviser may, except as provided in
Subsection (a) of this Section 3, act as investment adviser for non-investment
company clients; PROVIDED, HOWEVER, that such services for others shall not in
any way hinder, impair, preclude or prevent the Subadviser from performing its
duties and obligations under this Agreement and that whenever the Fund and one
or more other accounts advised by the Subadviser have available funds for
investment, investments suitable and appropriate for each will be allocated in
accordance with procedures that are equitable for each account. Similarly,
opportunities to sell securities will be allocated in an equitable manner.
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4. NON-COMPETITION. The Subadviser and any person or entity
controlled by the Subadviser will not in any manner sponsor, promote or
distribute any new investment product or service substantially similar to the
Fund, as such phrase is used in Section 3 hereof, for the period that the
Subadviser is required to provide exclusive services to the Fund pursuant to
Section 3 hereof, without the prior written consent of the Adviser. In
addition, the Subadviser and any person or entity controlled by the Subadviser
will not in any manner sponsor, promote or distribute any other mutual funds
that compete with other Funds in the Strong Family of Funds for the period of
this Agreement, without the prior written consent of the Adviser.
5. INDEPENDENT CONTRACTOR. In the performance of its duties
hereunder, the Subadviser is and shall be an independent contractor and unless
otherwise expressly provided herein or otherwise authorized in writing, shall
have no authority to act for or represent the Fund or the Adviser in any way or
otherwise be deemed an agent of the Fund or the Adviser.
6. COMPENSATION. The Adviser shall pay to the Subadviser a fee
for its services hereunder (the "Subadvisory Fee") computed as follows, based
on the net asset value of the Fund:
(a) FEE RATE. The Subadvisory Fee shall be the annual rate of
0.50% of the Fund's average daily net asset value minus 50% of any payments the
Advisor is obligated to make to third party financial intermediaries for the
various administrative services such third party intermediaries provide for
Fund shareholders who invest through them. Subadviser acknowledges and agrees
that the Adviser may waive all or any portion of its management fee at such
times and for such periods of time as it determines in its sole and absolute
discretion. In the event of a full waiver, the Subadvisory Fee shall be zero.
In the event of a partial waiver, the Subadvisory Fee shall be reduced pro
rata.
(b) MOST FAVORED CLIENT COMPENSATION DISCLOSURE. In the event
the Subadviser charges any of its similarly situated advisory clients on a more
favorable compensation basis, the Subadviser shall immediately notify and fully
disclose to the Adviser the nature and exact terms of such arrangement.
(c) METHOD OF COMPUTATION; PAYMENT. The Subadvisory Fee shall be
accrued for each calendar day the Subadviser renders subadvisory services
hereunder and the sum of the daily fee accruals shall be paid monthly to the
Subadviser as soon as practicable following the last day of each month, by wire
transfer if so requested by the Subadviser, but no later than eight (8)
calendar days thereafter. The daily fee accruals will be computed by
multiplying the fraction of one (1) over the number of calendar days in the
year by the annual rate as described in Subsection (a) of this Section 6 and
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multiplying the product by the net asset value of the Fund as determined in
accordance with the Prospectus as of the close of business on the previous
business day on which the Fund was open for business. The Subadvisory Fee will
reflect any waivers by the Adviser as described in Subsection (a) of this
Section 6.
7. COMMISSIONS. The Adviser understands that the Subadviser may,
in the future, act as executing and clearing broker in connection with the
transactions effected by the Fund and that the Subadviser will be paid
commissions by the Fund in connection therewith in accordance with all
applicable laws, including, but not limited to Rule 17e-1 promulgated under the
Investment Company Act.
8. EXPENSES. The Subadviser shall bear all expenses incurred by
it in connection with its services under this Agreement and will, from time to
time, at its sole expense employ or associate itself with such persons as it
believes to be particularly fitted to assist it in the execution of its duties
hereunder.
9. REPRESENTATIONS AND WARRANTIES OF SUBADVISER. The Subadviser
represents and warrants to the Adviser and the Fund as follows:
(a) The Subadviser is registered as an investment adviser under
the Advisers Act;
(b) The Subadviser has filed a notice of exemption pursuant to
Rule 4.14 under the CEA with the Commodity Futures Trading Commission (the
"CFTC") and the National Futures Association (the "NFA"), if applicable;
(c) The Subadviser is a corporation duly organized and validly
existing under the laws of the State of Delaware with the power to own and
possess its assets and carry on its business as it is now being conducted;
(d) The execution, delivery and performance by the Subadviser of
this Agreement are within the Subadviser's powers and have been duly authorized
by all necessary action on the part of its shareholders, and no action by or in
respect of, or filing with, any governmental body, agency or official is
required on the part of the Subadviser for the execution, delivery and
performance by the Subadviser of this Agreement, and the execution, delivery
and performance by the Subadviser of this Agreement do not contravene or
constitute a default under (i) any provision of applicable law, rule or
regulation, (ii) the Subadviser's governing instruments, or (iii) any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Subadviser;
(e) This Agreement is a valid and binding agreement of the
Subadviser;
7
8
(f) The Subadviser and any affiliated person of the Subadviser
have not:
(i) within 10 years from the date hereof been convicted of any
felony or misdemeanor involving the purchase or sale of any securities or
arising out of the conduct as an underwriter, broker, dealer, investment
adviser, municipal securities dealer, government securities broker, government
securities dealer, transfer agent, or entity or person required to be
registered under the CEA, or as an affiliated person, salesman, or employee of
any investment company, bank, insurance company, or entity or person required
to be registered under the CEA; or
(ii) by reason of any misconduct, been permanently or temporarily
enjoined by an order, judgment or decree of any court of competent jurisdiction
or other governmental authority from acting as an underwriter, broker, dealer,
investment adviser, municipal securities dealer, government securities broker,
government securities dealer, transfer agent, or entity or person required to
be registered under the CEA, or an affiliated person, salesman, or employee of
any investment company, bank, insurance company, or entity or person required
to be registered under the CEA or from engaging in or continuing any conduct or
practice in connection with any such activity or in connection with the
purchase or sale of any security; or
(iii) been a party to litigation or other adversarial proceedings
involving any former or current client that is material to the Subadviser's
business;
(g) The Form ADV of the Subadviser attached hereto as Exhibit A
is a true and complete copy of the form filed with the Commission and the
information contained therein is accurate and complete in all material respects
and does not omit to state any material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading;
(h) The Subadviser's unaudited balance sheet dated January 31,
1999 attached hereto as Exhibit B is a true and complete copy of the
Subadviser's balance sheet, is accurate and complete in all material respects
and does not omit to state any material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading;
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(i) The Subadviser's Code of Ethics attached hereto as Exhibit C
has been duly adopted by the Subadviser, meets the requirements of Rule 17j-1
under the Investment Company Act and such code has been complied with and no
violation has occurred.
10. REPRESENTATIONS AND WARRANTIES OF ADVISER. The Adviser
represents and warrants to the Subadviser as follows:
(a) The Adviser is registered as an investment adviser under the
Advisers Act;
(b) The Adviser has filed a notice of exemption pursuant to Rule
4.14 under the CEA with the CFTC and the NFA;
(c) The Adviser is a corporation duly organized and validly
existing under the laws of the State of Wisconsin with the power to own and
possess its assets and carry on its business as it is now being conducted;
(d) The execution, delivery and performance by the Adviser of
this Agreement are within the Adviser's powers and have been duly authorized by
all necessary action on the part of its shareholders, and no action by or in
respect of, or filing with, any governmental body, agency or official is
required on the part of the Adviser for the execution, delivery and performance
by the Adviser of this Agreement, and the execution, delivery and performance
by the Adviser of this Agreement do not contravene or constitute a default
under (i) any provision of applicable law, rule or regulation, (ii) the
Adviser's governing instruments, or (iii) any agreement, judgment, injunction,
order, decree or other instrument binding upon the Adviser;
(e) This Agreement is a valid and binding agreement of the
Adviser;
(f) The Adviser and any affiliated person of the Adviser have
not:
(i) within 10 years from the date hereof been convicted of any
felony or misdemeanor involving the purchase or sale of any securities or
arising out of the conduct as an underwriter, broker, dealer, investment
adviser, municipal securities dealer, government securities broker, government
securities dealer, transfer agent, or entity or person required to be
registered under the CEA, or as an affiliated person, salesman, or employee of
any investment company, bank, insurance company, or entity or person required
to be registered under the CEA; or
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(ii) by reason of any misconduct, been permanently or temporarily
enjoined by an order, judgment or decree of any court of competent jurisdiction
or other governmental authority from acting as an underwriter, broker, dealer,
investment adviser, municipal securities dealer, government securities broker,
government securities dealer, transfer agent, or entity or person required to
be registered under the CEA, or an affiliated person, salesman, or employee of
any investment company, bank, insurance company, or entity or person required
to be registered under the CEA or from engaging in or continuing any conduct or
practice in connection with any such activity or in connection with the
purchase or sale of any security; or
(iii) been a party to litigation or other adversarial proceedings
involving any former or current client that is material to the Adviser's
business;
(g) The Form ADV of the Adviser attached hereto as Exhibit D is a
true and complete copy of the form filed with the Commission and the
information contained therein is accurate and complete in all material respects
and does not omit to state any material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading;
(h) The Adviser acknowledges that it received a copy of the
Subadviser's Form ADV at least 48 hours prior to the execution of this
Agreement.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; DUTY TO UPDATE
INFORMATION. All representations and warranties made by the Subadviser and the
Adviser pursuant to Sections 9 and 10 hereof shall survive for the duration of
this Agreement and the parties hereto shall immediately notify, but in no event
later than five (5) business days, each other in writing upon becoming aware
that any of the foregoing representations and warranties are no longer true.
In addition, the Subadviser will deliver to the Adviser and the Fund copies of
any amendments, supplements or updates to any of the information provided to
the Adviser and attached as exhibits hereto within fifteen (15) days after
becoming available. Within forty-five (45) days after the end of each calendar
year during the term hereof, the Subadviser shall certify to the Adviser that
it has complied with the requirements of Rule 17j-1 under the Investment
Company Act with regard to its duties hereunder during the prior year and that
there has been no violation of the Subadviser's Code of Ethics with respect to
the Fund or in respect of any matter or circumstance that is material to the
performance of the Subadviser's duties hereunder or, if such violation has
occurred, that appropriate action was taken in response to such violation.
12. LIABILITY AND INDEMNIFICATION.
(a) LIABILITY. In the absence of willful misfeasance, bad faith
or negligence on the part of the Subadviser or a breach of its duties
hereunder, the
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Subadviser shall not be subject to any liability to the Adviser or the Fund or
any of the Fund's shareholders, and, in the absence of willful misfeasance, bad
faith or negligence on the part of the Adviser or a breach of its duties
hereunder, the Adviser shall not be subject to any liability to the Subadviser,
for any act or omission in the case of, or connected with, rendering services
hereunder or for any losses that may be sustained in the purchase, holding or
sale of Investments; PROVIDED, HOWEVER, that nothing herein shall relieve the
Adviser and the Subadviser from any of their obligations under applicable law,
including, without limitation, the federal and state securities laws and the
CEA.
(b) INDEMNIFICATION. The Subadviser shall indemnify the Adviser
and the Fund, and their respective officers and directors, for any liability
and expenses, including attorneys' fees, which may be sustained as a result of
the Subadviser's willful misfeasance, bad faith, negligence, breach of its
duties hereunder or violation of applicable law, including, without limitation,
the federal and state securities laws or the CEA. The Adviser shall indemnify
the Subadviser and its officers and directors, for any liability and expenses,
including attorneys' fees, which may be sustained as a result of the Adviser's
willful misfeasance, bad faith, negligence, breach of its duties hereunder or
violation of applicable law, including, without limitation, the federal and
state securities laws or the CEA.
13. DURATION AND TERMINATION.
(a) DURATION. This Agreement shall be submitted for approval by
shareholders of the Fund at the first meeting of shareholders of the Fund
following the effective date of its Registration Statement on Form N-1A
covering the initial offering of shares of the Fund. This Agreement shall
continue in effect for a period of two years from the date hereof, subject
thereafter to being continued in force and effect from year to year if
specifically approved each year by either (i) the Board of Directors of the
Fund, or (ii) by the affirmative vote of a majority of the Fund's outstanding
voting securities. In addition to the foregoing, each renewal of this
Agreement must be approved by the vote of a majority of the Fund's directors
who are not parties to this Agreement or interested persons of any such party,
cast in person at a meeting called for the purpose of voting on such approval.
Prior to voting on the renewal of this Agreement, the Board of Directors of the
Fund may request and evaluate, and the Subadviser shall furnish, such
information as may reasonably be necessary to enable the Fund's Board of
Directors to evaluate the terms of this Agreement.
(b) TERMINATION. Notwithstanding whatever may be provided herein
to the contrary, this Agreement may be terminated at any time, without payment
of any penalty:
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(i) By vote of a majority of the Board of Directors of the Fund,
or by vote of a majority of the outstanding voting securities of the Fund, or
by the Adviser, in each case, upon sixty (60) days' written notice to the
Subadviser;
(ii) By the Adviser upon breach by the Subadviser of any
representation or warranty contained in Section 9 hereof, which shall not have
been cured during the notice period, upon twenty (20) days written notice;
(iii) By the Adviser immediately upon written notice to the
Subadviser if the Subadviser becomes unable to discharge its duties and
obligations under this Agreement; or
(iv) By the Subadviser upon 180 days written notice to the
Adviser and the Fund.
This Agreement shall not be assigned (as such term is defined in the Investment
Company Act) without the prior written consent of the parties hereto. This
Agreement shall terminate automatically in the event of its assignment without
such consent or upon the termination of the Advisory Agreement.
14. DUTIES OF THE ADVISER. The Adviser shall continue to have
responsibility for all services to be provided to the Fund pursuant to the
Advisory Agreement and shall oversee and review the Subadviser's performance of
its duties under this Agreement. Nothing contained in this Agreement shall
obligate the Adviser to provide any funding or other support for the purpose of
directly or indirectly promoting investments in the Fund.
15. AMENDMENT. This Agreement may be amended by mutual consent
of the parties, provided that the terms of each such amendment shall be
approved by the Board of Directors of the Fund or by a vote of a majority of
the outstanding voting securities of the Fund. If such amendment is proposed
in order to comply with the recommendations or requirements of the Commission
or state regulatory bodies or other governmental authority, or to expressly
obtain any advantage under federal or state or non-U.S. laws, the Adviser shall
notify the Subadviser of the form of amendment which it deems necessary or
advisable and the reasons therefor, and if the Subadviser declines to assent to
such amendment, the Adviser may terminate this Agreement forthwith.
16. CONFIDENTIALITY. Subject to the duties of the Adviser, the
Fund and the Subadviser to comply with applicable law, including any demand of
any regulatory or taxing authority having jurisdiction, the parties hereto
shall treat as confidential all information pertaining to the Fund and the
actions of the Subadviser, the Adviser and the Fund in respect thereof.
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17. NOTICE. Any notice that is required to be given by the
parties to each other under the terms of this Agreement shall be in writing,
delivered, or mailed postpaid to the other party, or transmitted by facsimile
with acknowledgment of receipt, to the parties at the following addresses or
facsimile numbers, which may from time to time be changed by the parties by
notice to the other party:
(a) If to the Adviser:
Strong Capital Management, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
(b) If to the Subadviser:
Next Century Growth Investors, LLC
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Managing Director
Facsimile: (000) 000-0000
(c) If to the Fund:
Strong U.S. Emerging Growth Fund
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
18. GOVERNING LAW; JURISDICTION. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Wisconsin and the Subadviser consents to the exclusive jurisdiction of courts,
both federal and state, and venue in Wisconsin, with respect to any dispute
arising under or in connection with this Agreement.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall together constitute one and the same
instrument.
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20. CAPTIONS. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
21. SEVERABILITY. If any provision of this Agreement shall be
held or made invalid by a court decision or applicable law, the remainder of
the Agreement shall not be affected adversely and shall remain in full force
and effect.
22. CERTAIN DEFINITIONS.
(a) "BUSINESS DAY." As used herein, business day means any
customary business day in the United States on which the New York Stock
Exchange is open.
(b) MISCELLANEOUS. Any question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise derived from a
term or provision of the Investment Company Act shall be resolved by reference
to such term or provision of the Investment company Act and to interpretations
thereof, if any, by the U.S. courts or, in the absence of any controlling
decisions of any such court, by rules, regulation or order of the Commission
validly issued pursuant to the Investment Company Act. Specifically, as used
herein, "investment company," "affiliated person," "interested person,"
"assignment," "broker," "dealer" and "affirmative vote of the majority of the
Fund's outstanding voting securities" shall all have such meaning as such terms
have in the Investment Company Act. The term "investment adviser" shall have
such meaning as such term has in the Advisers Act and the Investment Company
Act, and in the event of a conflict between such Acts, the most expansive
definition shall control. In addition, where the effect of a requirement of
the Investment Company Act reflected in any provision of this Agreement is
relaxed by a rule, regulation or order of the Commission, whether of special or
general application, such provision shall be deemed to incorporate the effect
of such rule, regulation or order.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first written above.
STRONG CAPITAL MANAGEMENT, INC.
By:
Name:
Title:
Attest:
Name:
Title:
NEXT CENTURY GROWTH INVESTORS, LLC
By:
Name:
Title:
Attest:
Name:
Title:
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