HIGHMARK CAPITAL MANAGEMENT, INC.
FORM OF SUB-ADVISORY AGREEMENT
This AGREEMENT is executed as of __________________, 2006 and made effective as
of ___________________, 2006, by and between HIGHMARK CAPITAL MANAGEMENT, INC. (
"Adviser") and BAILARD, INC., a California corporation, which is an investment
adviser registered under the laws of the United States as an investment adviser
under the Investment Advisers Act of 1940 ("Sub-Adviser").
WHEREAS, Adviser is the investment adviser for HighMark Funds (the "Trust"), an
open-end diversified management investment company registered under the
Investment Company Act of 1940, as amended;
WHEREAS, Adviser's parent, Union Bank of California N.A., ("Bank") serves as
Custodian for HighMark Funds ("Custodian") and provides certain other services
for the HighMark Funds series of mutual funds (the "Funds");
WHEREAS, Adviser is the Administrator for the Funds, SEI Investments Global
Funds Services is the Sub-Administrator, and SEI Investment Distribution Co. is
the Distributor of the Funds (the latter two companies called collectively, the
"SEI Companies"); and
WHEREAS, Adviser desires to retain Sub-Adviser to provide the services set forth
herein with respect to the Trust's _____________ Fund (the "Fund").
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the meanings set
forth:
1.1 "33 Act" shall mean the Securities Act of 1933, the rules and regulations
issued thereunder, as they may be amended from time to time.
1.2 "40 Act" shall mean the Investment Company Act of 1940, the rules and
regulations issued thereunder, as they may be amended from time to time.
1.3 "Adviser" and "Administrator" shall mean HighMark Capital Management, Inc.
1.4 "Advisers Act" shall mean the Investment Advisers Act of 1940 and the rules
and regulations promulgated thereunder, as they may be amended from time to
time.
1.5 "Bank" and "Custodian" shall mean Union Bank of California, N.A., a national
banking association organized under the laws of the United States.
1.6 "Sub-Administrator" and "Distributor" shall mean SEI Investments Global
Funds Services and SEI Investments Distribution Co, respectively.
1.7 "Sub-Adviser" shall mean Bailard, Inc., a corporation formed under
California law and registered as an investment adviser under the Advisers Act.
2. APPOINTMENT. Adviser hereby appoints Sub-Adviser to provide the sub-advisory
services specified herein to the Fund for the period and on the terms set forth
in this Agreement. Sub-Adviser accepts such appointment and agrees to furnish
the services herein set forth for the compensation herein provided.
3. DELIVERY OF DOCUMENTS.
3.1 Adviser has furnished or will furnish Sub-Adviser with copies properly
certified or authenticated of each of the following:
(a) Copies of the Declarations of Trust establishing the HighMark Funds
and the By-Laws of the Trust;
(b) Resolutions of the Trust's Board of Trustees authorizing the
appointment of Sub-Adviser and approving this Agreement;
(c) The Trust's Registration Statement on Form N-1A under the 33 Act (File
No. 33-12608) and the 40 Act as filed with the SEC, and all amendments thereto
insofar as such Registration Statement and such amendments relate to the Funds;
(d) The Trust's most recent prospectus and Statement of Additional
Information for the Fund (such prospectus and Statement of Additional
Information, as presently in effect, and all amendments and supplements thereto
are herein collectively called the "Prospectus");
(e) Adviser's Form ADV Part II; and
(f) Such other materials and documents as Sub-Adviser shall reasonably
request.
Adviser will furnish Sub-Adviser with copies of all amendments of or supplements
to the foregoing promptly following adoption of such amendments or supplements.
3.2 Sub-Adviser has furnished or will furnish Adviser with copies properly
certified or authenticated of each of the following:
(a) Sub-Adviser's Form ADV Part II; and
(b) Such other materials and documents as Adviser shall reasonably
request.
Sub-Adviser will furnish Adviser with copies of all amendments of or supplements
to the foregoing promptly following adoption of such amendments or supplements.
4. MANAGEMENT:
4.1 Subject to the supervision of the Trust's Board of Trustees and of Adviser,
Sub-Adviser will furnish an investment program in respect of, and make
investment decisions for, the assets of the Fund and shall have full
discretionary management authority with respect to the assets of the Fund, and
in connection therewith is authorized to place all orders for the purchase and
sale of securities, on behalf of the Fund, as Sub-Adviser shall determine to be
appropriate. Sub-Adviser is also authorized, subject to periodic approvals of
authorized persons by the Board of Trustees, to instruct Custodian to settle
trades executed on behalf of the Fund. In the performance of its duties,
Sub-Adviser will satisfy its fiduciary duties to the Fund, will monitor the Fund
investments, and will comply with the investment objectives, policies and
restrictions of the Fund stated in the Fund's Prospectus as provided to
Sub-Adviser from time
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to time and compliance policies and procedures furnished to Sub-Adviser by
Adviser from time to time (provided that Sub-Adviser is provided with reasonable
notice of any change to the Fund's investment objectives, policies and
restrictions).
4.2 Sub-Adviser and Adviser will each make its officers and employees available
to the other from time to time at reasonable times to review investment policies
of the Fund and to consult with each other regarding the investment affairs of
the Fund. Sub-Adviser shall also make itself reasonably available to the Trust's
Board of Trustees at such times as the Board of Trustees shall request.
4.3 Sub-Adviser represents and warrants that it is and shall remain in
compliance with all applicable United States Securities and Exchange Commission
("SEC") Rules and Regulations pertaining to its investment advisory activities
and agrees that it:
(a) will use at least the same skill and care in providing such services
as it uses in providing services to fiduciary accounts in the United States for
which it has investment responsibilities;
(b) will maintain its registration with the SEC as an investment adviser
under the Advisers Act and will conform with all applicable laws, rules and
regulations pertaining to its investment advisory activities;
(c) will place orders pursuant to its investment determinations for the
Fund either directly with the issuer or with any broker or dealer. In providing
the Fund with investment supervision, Sub-Adviser will give primary
consideration to securing the most favorable price and efficient execution.
Within the framework of this policy, Sub-Adviser may consider the financial
responsibility, research and investment information and other services provided
by brokers or dealers who may effect or be a party to any such transaction or
other transactions to which Sub-Adviser's other clients may be a party. It is
understood that it is desirable for the Fund and the Trust that Sub-Adviser or
Adviser have access to supplemental investment and market research and security
and economic analysis provided by brokers who may execute brokerage transactions
at a higher cost to the Fund than may result when allocating brokerage to other
brokers solely on the basis of seeking the most favorable price and efficient
execution. Therefore, Sub-Adviser is authorized to place orders for the purchase
and sale of securities for the Fund with such brokers, subject to the general
supervision of, and guidelines from time to time established by, Adviser, and
reviewed by the Trust's Board of Trustees with respect to the extent and
continuation of this practice. It is understood that the services provided by
such brokers may be useful to Sub-Adviser in connection with its or its
affiliates' services to other clients.
On occasions when Sub-Adviser deems the purchase or sale of a security to
be in the best interest of the Fund as well as other clients of Sub-Adviser,
Sub-Adviser, to the extent permitted by applicable laws and regulations, may,
but shall be under no obligation to, aggregate the securities to be so purchased
or sold in order to obtain the most favorable price or lower brokerage
commissions and efficient execution. In such event, allocation of the securities
so purchased or sold, as well as the expenses incurred in the transaction, will
be made by Sub-Adviser in the manner it considers to be equitable and consistent
with its fiduciary obligations to the Fund and to such other clients. In no
instance will portfolio securities be purchased from or sold to Adviser,
Sub-Adviser, the SEI Companies, or any affiliated person of any of the Trust,
Adviser, Sub-Adviser, the Administrator, the Sub-Administrator, the Distributor,
or any entity that Adviser has identified to Sub-Adviser in writing, except as
may be permitted under the 40 Act. Adviser shall supply Sub-Adviser with a list
of all such persons and any amendments to such list as may be necessary from
time to time.
(d) will report regularly to Adviser and will make appropriate persons
available for the purpose of reviewing at reasonable times the management of the
Fund with representatives of Adviser and the Board of Trustees, including,
without limitation, review of the general investment strategy of the
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Fund, the overall performance of the Fund in relation to standard industry
indices which have been agreed upon between Adviser and Sub-Adviser and general
conditions affecting the marketplace, and will provide various other reports
from time to time as reasonably requested by Adviser;
(e) will maintain books and records with respect to the Trust's securities
transactions required by subparagraphs (b)(5), (6), (7), (9), (10) and (11) and
paragraph (f) of Rule 31a-1 under the 40 Act and will furnish Adviser and the
Trust's Board of Trustees such periodic and special reports as Adviser or the
Board of Trustees may request;
(f) will act upon instructions from Adviser that are not inconsistent with
the fiduciary duties undertaken hereunder; and
(g) will treat confidentially and as proprietary information of the Trust
all such records and other information relative to the assets of the Fund
maintained by Sub-Adviser, and will not use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except after prior notification to and approval in writing by the Board of
Trustees, which approval shall not be unreasonably withheld and may not be
withheld where Sub-Adviser may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such information by
duly constituted authorities.
(h) Sub-Adviser shall have the right to execute and deliver, or cause its
nominee to execute and deliver, all proxies and notices of meetings and other
notices affecting or relating to the securities of the Fund.
5. BOOKS AND RECORDS. Sub-Adviser shall not be responsible for the provision of
administrative, bookkeeping or accounting services to the Fund, except as
otherwise provided herein or as may be necessary for Sub-Adviser to supply to
Adviser, the Fund or its Board of Trustees the information required to be
supplied under this Agreement. In compliance with the requirements of Rule 31a-3
under the 40 Act, Sub-Adviser hereby agrees that certain records which it
maintains for the Fund are also the property of the Fund, and further agrees to
surrender promptly to the Trust a duplicate of any of such records, upon the
Trust's request. Sub-Adviser further agrees to preserve for the periods
prescribed by Rule 31a-2 under the 40 Act the records required to be maintained
by subparagraphs (b)(5), (6), (7), (9), (10) and (11) and paragraph (f) of Rule
31a-1 under the 40 Act for the Fund. Sub-Adviser may delegate its
responsibilities under this paragraph to affiliates that perform custody and/or
fund accounting services for the Fund, which delegation shall not, however,
relieve Sub-Adviser of its responsibilities under this paragraph 5.
6. EXPENSES. During the term of this Agreement, Sub-Adviser will pay all
expenses incurred by it in connection with its activities under this Agreement
other than the cost of securities (including brokerage commissions, if any)
purchased for the Trust, unless otherwise stated in this Agreement.
7. COMPENSATION. For the services provided and the expenses assumed pursuant to
this Agreement, Adviser will pay Sub-Adviser, and Sub-Adviser agrees to accept
as full compensation therefor, a sub-advisory fee, accrued and payable in
accordance with Schedule A hereto. From time to time, Sub-Adviser may, in its
sole discretion, agree to waive or reduce some or all of the compensation to
which it is entitled under this Agreement.
8. SERVICES TO OTHERS. Adviser understands, and has advised the Trust's Board of
Trustees, that Sub-Adviser now acts and may in the future act, as an investment
adviser to fiduciary and other managed accounts, and as investment adviser,
sub-investment adviser, and/or administrator to other investment companies.
Adviser has no objection to Sub-Adviser's acting in such capacities, as long as
such services do not impair the services rendered to Adviser or the Fund, and
Adviser recognizes and has
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advised the Trust's Board of Trustees that, in some cases, this may adversely
affect the size of the position that the Fund may obtain in a particular
security. In addition, Adviser understands, and has advised the Trust's Board of
Trustees, that the persons employed by Sub-Adviser to assist in Sub-Adviser's
duties under this Agreement will not devote their full time to such service, and
nothing contained in this Agreement will be deemed to limit or restrict the
right of Sub-Adviser or any of its affiliates to engage in and devote time and
attention to other businesses or to render services of whatever kind or nature.
Notwithstanding any of the foregoing, Sub-Adviser shall obtain Adviser's prior
written consent (a copy of which shall concurrently be provided to the Trust's
Board of Trustees) before it or any of its employees act as an investment
adviser, sub-investment adviser, portfolio manager and/or administrator to any
investment company or series thereof other than to the Fund or any other fund or
funds of the trust. Such consent may not be unreasonably withheld by Adviser.
9. LIMITATION OF LIABILITY. Sub-Adviser shall not be liable for any error or
judgment or for any loss suffered by the Fund or Adviser in connection with the
performance of its obligations under this Agreement or for having executed
Adviser's instructions , except a loss resulting from a breach of Sub-Adviser's
fiduciary duty with respect to the receipt of compensation for services (in
which case any award of damages shall be limited to the period and the amount
set forth in Section 36(b)(3) of the 40 Act), or a loss resulting from
Sub-Adviser's willful misfeasance, bad faith, or gross negligence in the
performance of its duties, or reckless disregard of its obligations and duties
under this Agreement, except as may otherwise be provided under provisions of
applicable state or federal law which cannot be waived or modified hereby.
10. INDEMNIFICATION. Adviser and Sub-Adviser each agree to indemnify the other
against loss or liability to such other party (including reasonable attorneys'
fees) arising out of any third party claim based on any action taken or not
taken in the performance of its obligations under this Agreement on the part of
the indemnified party unless the indemnified party's action or inaction involves
willful misfeasance, bad faith, gross negligence, or reckless disregard of its
obligations and duties under this Agreement.
11. DURATION AND TERMINATION. This Agreement will become effective as of the
date hereof, provided that it has been approved by a vote of a majority of the
outstanding voting securities of the Fund in accordance with the requirements
under the 40 Act, and, unless sooner terminated as provided herein, will
continue in effect for two (2) years.
Thereafter, if not terminated, this Agreement will continue in effect for the
Fund for successive periods of 12 months, each ending on the day preceding the
annual anniversary of the Agreement's effective date, provided that such
continuation is specifically approved at least annually (a) by the vote of a
majority of those members of the Trust's Board of Trustees who are not
interested persons of the Trust, Sub-Adviser, or Adviser, cast in person at a
meeting called for the purpose of voting on such approval, and (b) by the vote
of a majority of the Trust's Board of Trustees or by the vote of majority of all
votes attributable to the outstanding Shares of the Fund.
Notwithstanding the foregoing, this Agreement may be terminated as to the Fund
at any time, without penalty, on sixty (60) days' written notice to Sub-Adviser
by Adviser, by vote of the Board of Trustees of the Trust or by vote of a
majority of the outstanding voting securities of the Fund. This Agreement may be
terminated at any time, without penalty, on sixty (60) days' written notice by
Sub-Adviser to Adviser. This Agreement will immediately terminate in the event
of its assignment. (As used in this Agreement, the terms "majority of the
outstanding voting securities", "interested persons" and "assignment" have the
same meaning as when such terms appear in the 40 Act.)
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12. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
13. SUB-ADVISER INFORMATION. During the term of this Agreement, Adviser agrees
to furnish Sub-Adviser at Sub-Adviser's principal office, all prospectuses,
proxy statements, reports to stockholders, sales literature or other materials
prepared for distribution to stockholders of the Fund, the Trust, or the public,
that refer to Sub-Adviser. Adviser agrees to use its reasonable best efforts to
ensure that materials prepared by its employees, agents, its affiliates, or the
Bank that refer to Sub-Adviser in any way are consistent with those materials
previously published. Sales literature may be furnished to Sub-Adviser by
first-class or overnight mail, facsimile transmission equipment or hand
delivery.
14. INDEPENDENT CONTRACTOR. In the performance of its duties hereunder,
Sub-Adviser 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 Adviser in any way or otherwise
deemed to be an agent of the Fund or Adviser. If any occasion should arise in
which Sub-Adviser gives any advice to its clients concerning the shares of the
Fund, Sub-Adviser will act solely as investment counsel for such clients and not
in any way on behalf of the Fund.
15. SEVERABILITY. Should any part of this Agreement be held invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors.
16. NOTICES. Any notice, advice or report to be given pursuant to this Agreement
shall be delivered or mailed as set forth below:
To Adviser at:
HighMark Capital Management, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, President & CEO
To the Sub-Adviser at:
Bailard, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
To the Trust, the Trustees or the Fund at:
HighMark Funds
c/o SEI Investments Global Funds Services
and SEI Investments Distribution Co.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Parties agree that they shall not be bound by the terms of any changes in
policies, procedures, or contracts until notice has been received as set forth
in this Agreement.
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17. CHANGE OF LAW . Where the effect of a requirement of the 40 Act reflected in
any provision of this Agreement is altered by a rule, regulation or order of the
SEC, whether of special or general application, such provision shall be deemed
to incorporate the effect of such rule, regulation or order.
18. MISCELLANEOUS .
The captions in this Agreement are included for convenience of reference only
and in no way define or limit any of the provisions hereof or otherwise affect
their construction or effect. This Agreement will be governed by the laws of the
Commonwealth of Massachusetts.
The names "HighMark Funds" and "Trustees of the HighMark Funds" refer,
respectively, to the Trust created, and the Trustees as trustees (but not
individually or personally), acting from time to time under, the Declaration of
the Trust, dated March 10, 1987, to which reference is hereby made and a copy of
which is on file at the office of the Secretary of State of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of HighMark Funds entered
in the name or on behalf thereof by any of the Trustees, or its representatives
or agents, are made not individually but only in such capacities and are not
binding upon any of the Trustees, shareholders or representatives of the Trust
personally, but bind only the assets of the Trust, and all persons dealing with
the Fund must look solely to the assets of the Trust belonging to such Fund for
the enforcement of any claims against the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officer designated below as of the day and year first above
written.
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HIGHMARK CAPITAL MANAGEMENT, INC. BAILARD, INC.
By: ______________________________ By: _________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇ Name:
Title: President & CEO Title:
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SUB-ADVISORY AGREEMENT
BETWEEN HIGHMARK CAPITAL MANAGEMENT, INC.
AND BAILARD, INC.
SCHEDULE A
Bailard, Inc. will receive as a Sub-Advisory fee 50% of the total gross
investment advisory fee for each of the funds for which it serves as
Sub-Adviser. The "total gross investment advisory fee" means the advisory fee
received by HighMark Capital Management, Inc. reduced by the application of any
breakpoints but not reduced by the effect of any fee waivers.
The following schedule of breakpoints will determine the total gross investment
advisory fee to be charged including the application of breakpoints but
excluding any other fee waivers taken by the Adviser.
The total gross investment advisory fee (in basis points) for each applicable
fund is shown below. The fee applicable to each dollar of assets under
management ("AUM") declines as AUM increases. "Assets under management" means
all net assets, including cash and cash equivalents. For example, if AUM of
HighMark International Opportunities Fund were $600 million, the fee would be
calculated as 0.95% of the first $250 million plus 0.90% of the next $250
million plus 0.85% of $100 million.
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Fund Fund AUM (in Millions)
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Up to $250 >$250 and <=$500 >$500 and <=$1,000 >$1,000
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International 95 90 85 80
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Enhanced Growth 75 75 70 65
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Cognitive Value 75 75 70 70
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The Sub-Advisory fee shall be payable by the Adviser. It shall be computed
on the average daily net assets of the Fund subject to the Agreement, and
calculated as of the last business day of each calendar month. The fee shall be
payable within 10 business days of the end of each month.