Exhibit 99.d.5
EXHIBIT A
FORM OF
HIGHMARK INTERNATIONAL EQUITY FUND
SUB-ADVISORY AGREEMENT
This AGREEMENT is executed as of _________________, 200_ and made effective as
of __________________, 200_, by and between HIGHMARK CAPITAL MANAGEMENT, INC.
(the "Adviser") and DEUTSCHE ASSET MANAGEMENT INVESTMENT SERVICES, LTD., a
______________________, which is an investment adviser registered under the laws
of the United States as an investment adviser under the Investment Advisers Act
of 1940 ("Sub-Adviser").
WHEREAS, the Adviser is the investment adviser for the HighMark Funds (the
"Trust"), an open-end diversified management investment company registered under
the Investment Company Act of 1940, as amended ("`40 Act");
WHEREAS, Adviser's affiliate, Union Bank of California N.A., serves as Custodian
for the HighMark Funds and provides certain other services for the Funds;
WHEREAS, SEI Investments Fund Resources is Administrator and SEI Investment
Distribution Co. is Distributor of the HighMark Funds (collectively, the "SEI
Companies"); and
WHEREAS, Adviser desires to retain Sub-Adviser as its agent to furnish
investment sub-advisory services for certain assets of the Trust's International
Equity Fund (the "Fund").
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the meanings
set forth:
1.1 "33 Act" shall mean the Securities Act of 1933, the rules and regulations
issued thereunder, as they may be amended from time to time.
1.2 "40 Act" shall mean the Investment Company Act of 1940, the rules and
regulations issued thereunder, as they may be amended from time to time.
1.3 "Administrator" and "Distributor" shall mean SEI Investments Fund
Resources and SEI Investments Distribution Co, respectively.
1.4 "Adviser" shall mean HighMark Capital Management, Inc.
1.5 "Adviser's Act" shall mean the Investment Adviser's Act of 1940 and the
rules and regulations promulgated thereunder, as they may be amended from time
to time
1.6 "Bank" shall mean Union Bank of California, N.A., a national banking
association organized under the laws of the United States.
1.7 "Sub-Adviser" shall mean Deutsche Asset Management Investment Services,
Ltd., a company incorporated in ________ and registered as an investment adviser
under the Investment Advisers Act of 1940.
2. APPOINTMENT. Adviser hereby appoints Sub-Adviser to provide certain sub-
advisory services to the Fund for the period and on the terms set forth in this
Agreement. Sub-Adviser accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided.
3. DELIVERY OF DOCUMENTS. 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;
(b) The Trust's Registration Statement on Form N-1A under the `33 Act
(File No. 33-37687) 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;
(c) The Trust's most recent prospectus and Statement of Additional
Information for the International Equity Fund (such prospectus and Statement of
Additional Information, as presently in effect, and all amendments and
supplements thereto are herein collectively called the "Prospectus"); and
(d) 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.
4. MANAGEMENT:
4.1 Subject always to the supervision of the Trust's Board of Trustees and of
Adviser, Sub-Adviser will furnish an investment program in respect of, and make
investment decisions for, the assets of the Fund entrusted to it hereunder.
Sub-Adviser may place all orders for the purchase and sale of securities, on
behalf of the Fund. 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 provisions of the Trust's
Declaration of Trust and By-Laws, as amended from time to time, and with the
investment objectives, policies and restrictions of the Fund stated in the Fund
Prospectus and compliance policies and procedures furnished to the Sub-Adviser
by Adviser from time to time.
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 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, the Sub-Adviser will give primary
consideration to securing the most favorable price and efficient execution.
Within the framework of this policy, the Sub-Adviser may consider the financial
responsibility, research and investment information and other services provided
by brokers or dealers who may effect or be a party to any such transaction or
other transactions to which the Sub-Adviser's other clients may be a party. It
is understood that it is desirable for the Fund that the Sub-Adviser have access
to supplemental investment and market research and security and economic
analysis provided by brokers who may execute brokerage transactions at a higher
cost to the Fund than may result when allocating brokerage to other brokers on
the basis of seeking the most favorable price and efficient execution.
Therefore, the Sub-Adviser is authorized to place orders for the purchase and
sale of securities for the Fund with such brokers, subject to such guidelines as
shall be established by the Adviser and reviewed by the Trust's Board of
Trustees from time to time with respect to the extent and continuation of this
practice. It is understood that the services provided by such brokers may be
useful to the Sub-Adviser in connection with the Sub-Adviser's services to other
clients.
On occasions when the Sub-Adviser deems the purchase or sale of a
security to be in the best interest of the Fund as well as other clients of the
Sub-Adviser, the Sub-Adviser, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be so purchased or sold in order to obtain the most favorable price or lower
brokerage commissions and efficient execution. In such event, allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-Adviser in the manner it considers to be
the most equitable and consistent with its fiduciary obligations to the 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, the Sub-Adviser, or the SEI Financial
Services Company or Sub-Adviser that Adviser has identified to the Sub-Adviser
in writing, except as may be permitted under the `40 Act.
(d) will report regularly to Adviser and will make appropriate persons
available for the purpose of reviewing at reasonable times the management of the
Fund with representatives of Adviser and the Board of Trustees, including,
without limitation, review of the general investment strategy of the Fund, the
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
the Adviser or 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 Trust maintained by
the Sub-Adviser, and will not use such records and information for any purpose
other than performance of its responsibilities and duties hereunder, except
after prior notification to and approval in writing by the Trust, which approval
shall not be unreasonably withheld and may not be withheld where Sub-Adviser may
be exposed to civil or criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted authorities, or when
so requested by the Trust.
Sub-Adviser shall have the right to execute and deliver, or cause its nominee to
execute and deliver, all proxies and notices of meetings and other notices
affecting or relating to the securities of the Fund.
4.4 Sub-Advisor will diligently perform services as defined under this
Agreement. However, Sub-Advisor makes no representations or guarantees
whatsoever that the objective(s) of the Fund will be achieved or that the Fund
will outperform its benchmark as set forth in Schedule B.
5. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
under the `40 Act, Sub-Adviser hereby agrees that certain records which it
maintains for the Trust are the property of the Trust also and further agrees to
surrender promptly to the Trust a duplicate of any of such records, upon the
Trust's request. Sub-Adviser further agrees to preserve for the periods
prescribed by Rule 31a-2 under the `40 Act the records required to be maintained
by subparagraphs (b)(5), (6), (7), (9), (10) and (11) and paragraph (f) of Rule
31a-1 under the `40 Act for the Fund. Sub-Adviser may delegate its
responsibilities under this Section to affiliates that perform custody and/or
fund accounting services for the Fund, which delegation shall not, however,
relieve the Sub-Adviser of its responsibilities under this paragraph 5.
6. EXPENSES. During the term of this Agreement, Sub-Adviser will pay all
expenses incurred by it in connection with its activities under this Agreement
other than the cost of securities (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 the Sub-Adviser, and the Sub-Adviser agrees
to accept as full compensation therefor, a sub-advisory fee, accrued daily and
payable monthly, in accordance with Schedule A hereto. From time to time,
Sub-Adviser may, in its sole discretion, agree to waive or reduce some or all of
the compensation to which it is entitled under this Agreement.
8. SERVICES TO OTHERS. Adviser understands, and has advised the Trust's
Board of Trustees, that Sub-Adviser now acts and may in the future act, as an
investment adviser to fiduciary and other managed accounts, and as investment
adviser, sub-investment adviser, and/or administrator to other investment
companies. Adviser has no objection to Sub-Adviser's acting in such capacities,
as long as such services do not impair the services rendered to Adviser or the
Trust. Adviser recognizes, and has advised the Trust's Board of Trustees that,
in some cases, this procedure may adversely affect the size of the position that
the Fund may obtain in a particular security. In addition, Adviser understands,
and has advised the Trust's Board of Trustees, that the persons employed by
Sub-Adviser to assist in Sub-Adviser's duties under this Agreement will not
devote their full time to such service and nothing contained in this
Agreement will be deemed to limit or restrict the right of Sub-Adviser or any
of its affiliates to engage in and devote time and attention to other
businesses or to render services of whatever kind or nature.
9. LIMITATION OF LIABILITY. The Sub-Adviser shall not be liable for any
error or judgment or for any loss suffered by the Fund or Adviser in connection
with performance of its obligations under this Agreement or for having
executed Advisor's instructions, except a loss resulting from a breach of
fiduciary duty with respect to the receipt of compensation for services (in
which case any award of damages shall be limited to the period and the amount
set forth in Section 36(b)(3) of the `40 Act), or a loss resulting from willful
misfeasance, bad faith or gross negligence on the Sub-Adviser's part in the
performance of its obligations or in failing to perform its obligations under
this Agreement, except as may otherwise be provided under provisions of
applicable state or federal law which cannot be waived or modified hereby.
10. INDEMNIFICATION. Adviser and Sub-Adviser each agree to indemnify the
other against any claim against, loss or liability to, such other party
(including reasonable attorneys' fees) arising out of any action taken or not
taken in the performance of its obligations under this Agreement on the part of
the indemnifying party which constitutes willful misfeasance, bad faith or gross
negligence.
11. DURATION AND TERMINATION. This Agreement will become effective as of the
date hereof, provided that it has been approved by a vote of a majority of the
outstanding voting securities of the Fund in accordance with the requirements
under the `40 Act, and, unless sooner terminated as provided therein, will
continue in effect for two (2) years.
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 the payment of any penalty, on sixty (60) day's written
notice by the Adviser to Sub-Adviser. This Agreement may be terminated at any
time, without the payment of any penalty, on 120 day's written notice by the
Sub-Adviser to Adviser. This Agreement will immediately terminate in the event
of its assignment. (As used in this Agreement, the terms "majority of the
outstanding voting securities", "interested persons" and "assignment" have the
same meaning of such terms in the `40 Act.)
12. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
13. SUB-ADVISER INFORMATION. During the terms of this Agreement, Adviser
agrees to furnish the Sub-Adviser at Sub-Adviser's principal office all
prospectuses, proxy statements, reports to stockholders, sales literature or
other materials prepared for distribution to stockholders of the Fund, the Trust
or the public that refer to the Sub-Adviser or its clients in any way prior to
use thereof, and not to use material if the Sub-Adviser reasonably objects in
writing within ten (10) business days (or such other period as may be mutually
agreed) after receipt thereof. The Sub-Adviser's right to object to such
materials is limited to the portions of such materials that expressly relate to
the Sub-Adviser, its services and its clients. The Adviser agrees to use its
reasonable best efforts to ensure that materials prepared by its employees or
agents or its affiliates that refer to the Sub-Adviser or its clients in any way
are consistent with those materials previously approved by the Sub-Adviser as
referenced in the first sentence of this paragraph. Sales literature may be
furnished to the Sub-Adviser by first-class or overnight mail, facsimile
transmission equipment or hand delivery.
14. SEVERABILITY. Should any part of this Agreement be held invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors.
15. NOTICES. Any notice, advice or report to be given pursuant to this
Agreement shall be delivered or mailed as set forth below:
TO ADVISER AT:
HighMark Capital Management, Inc.
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Post Office ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, President
TO THE SUB-ADVISER AT:
Deutsche Asset Management Investment Services, Ltd.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - 36th Floor
New York, N.Y. 10006
Attention: C. ▇▇▇▇▇ ▇▇▇▇▇
Director
TO THE TRUST OR THE FUND AT:
HighMark Funds
c/o SEI Investments Fund Resources
and SEI Investments Distribution Co.
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▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Parties agree that they shall not be bound by the terms of any changes in
policies, procedures, or contracts until notice has been received as set forth
in this Agreement.
16. CHANGE OF LAW. Where the effect of a requirement of the `40 Act reflected
in any provision of this Agreement is altered by a rule, regulation or order of
the SEC, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
17. MISCELLANEOUS.
The captions in this Agreement are included for convenience of reference only
and in no way define or delimit any of the provisions hereof or otherwise affect
their construction or effect. If any provision of this Agreement is held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement will not be affected thereby. This Agreement will be binding upon and
shall inure to the
benefit of the parties hereto and their respective successors and will be
governed by the laws of the Commonwealth of Massachusetts.
The name "HighMark Funds" and "Trustees of the HighMark Funds" refer,
respectively, to the Trust created by, and the Trustees as trustees (but not
individually or personally), acting from time to time under, the Declaration of
the Trust, to which reference is hereby made and copy of which is on file at the
office of the Secretary of State of the Commonwealth of Massachusetts and
elsewhere as required by law, and to any and all amendments thereto so filed or
hereafter filed. The obligations of "HighMark Funds" entered in the name or on
behalf thereof by any of the Trustees, representatives or agents are made not
individually but only in such capacities and are not binding upon any of the
Trustees, Shareholders or representatives of the Trust personally, but bind only
the assets of the Trust, and persons dealing with the Funds must look solely to
the assets of the Trust belonging to such Funds for the enforcement of any
claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officer designated below as of the day and year first above
written.
HIGHMARK CAPITAL MANAGEMENT, INC. DEUTSCHE ASSET MANAGEMENT INVESTMENT
SERVICES, LTD.
By: By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇ Name:
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Title: President Title:
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SCHEDULE A
HIGHMARK INTERNATIONAL FUND
Advisory Fee: 95 b.p.
Sub-Advisory Fee: 60 b.p. on the first $250 million, and
50 b.p. on all assets over $250 million
The Sub-Advisory fee shall be payable out of the Advisory fee
SCHEDULE B
SUB-ADVISER PERFORMANCE STANDARDS
Outperform the MSCI Europe, Australia, Far East Index ("MSCI EAFE Index")* and
perform in the top 30% of the Morningstar Foreign Equity Funds universe.
Sub-Advisor will diligently perform services as defined under this Agreement.
However, Sub-Advisor makes no representations or guarantees whatsoever that the
objective of the Fund will be achieved or that the Fund will outperform its
benchmark as set forth above.