Exhibit (d)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of May 12, 2001 between the American Performance
Funds, a Massachusetts business trust (herein called the "Trust"), and
Investment Concepts, Inc., an Oklahoma corporation (herein called the
"Investment Adviser").
WHEREAS, the Trust is registered as an open-end, diversified,
management investment company under the Investment Company Act of 1940, as
amended ("1940 Act"); and
WHEREAS, the Trust desires to retain the Investment Adviser to furnish
investment advisory and related services described below in connection with the
management of each of the investment portfolios of the Trust identified on
Schedule A hereto (the "Funds"), and the Investment Adviser represents that it
is willing and possesses legal authority under the Xxxxx-Xxxxxxxx Act to so
furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Trust hereby appoints the Investment Adviser to act
as investment adviser to the Funds for the period and on the terms set forth in
this Agreement. The Investment Adviser accepts such appointment and agrees to
furnish the services herein set forth for the compensation herein provided.
2. DELIVERY OF DOCUMENTS. The Trust has furnished the Investment
Adviser with copies properly certified or authenticated of each of the
following:
(a) the Trust's Agreement and Declaration of Trust, dated October 1,
1987 and as filed with the Secretary of State of The Commonwealth of
Massachusetts, and all amendments thereto or restatements thereof (such
Agreement and Declaration of Trust, as presently in effect and as it shall from
time to time be amended or restated, is herein called the "Declaration of
Trust");
(b) the Trust's By-laws and amendments thereto;
(c) resolutions of the Trust's Board of Trustees authorizing the
appointment of the Investment Adviser and approving this Agreement;
(d) the Trust's original Notification of Registration on Form N-8A
under the 1940 Act as filed with the Securities and Exchange Commission on June
1, 1990 and all amendments thereto;
(e) the Trust's current Registration Statement on Form N-lA under
the Securities Act of 1933, as amended ("1933 Act"), and under the 1940 Act as
filed with the Securities and Exchange Commission; and
(f) the Funds' most recent prospectuses and the Trust's Statement of
Additional Information relating to the Funds (such prospectus and Statement of
Additional Information, as presently in effect, and all amendments and
supplements thereto are herein collectively called the "Prospectus").
The Trust will promptly furnish the Investment Adviser with copies
of all amendments of or supplements to the foregoing documents.
3. MANAGEMENT. Subject to the supervision of the Trust's Board of
Trustees, the Investment Adviser will provide or cause to be provided a
continuous investment program for the Funds, including investment research and
management with respect to all securities and investments and cash equivalents
in such Funds. The Investment Adviser will determine or cause to be determined
from time to time what securities and other investments will be purchased,
retained or sold by the Trust with respect to each Fund, and will place or cause
to be placed orders for purchase and sale on behalf of the Trust with respect to
such Fund. The Investment Adviser will provide the services under this Agreement
in accordance with each Fund's investment objective, policies, and restrictions
as stated in the Prospectus, resolutions of the Trust's Board of Trustees, and
any undertakings with state or other regulatory authorities which are provided
by the Trust to the Investment Adviser. The Investment Adviser further agrees
that it:
(a) will use the same skill and care in providing such services as
it uses in providing services to fiduciary accounts for which it has investment
responsibilities;
(b) will comply in all material respects with all applicable Rules
and Regulations of the Securities and Exchange Commission under the 1940 Act and
in addition will conduct its activities under this Agreement in accordance with
any applicable regulations pertaining to the investment advisory activities of
the Investment Adviser;
(c) will not make loans to any person to purchase or carry units of
beneficial interest ("Shares") in the Trust or make loans to the Trust;
(d) will place or cause to be placed orders for the Funds either
directly with the issuer or with any broker or dealer and, in placing orders
with brokers and dealers, the Investment Adviser or any sub-investment adviser
employed by the Investment Adviser will attempt to obtain prompt execution of
orders in an effective manner at the most favorable price. Consistent with this
obligation, when the execution and price offered by two or more brokers or
dealers are comparable, the Investment Adviser or any sub-investment adviser
employed by the Investment Adviser may, in its discretion, purchase and sell
portfolio securities to and from
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brokers and dealers who provide the Investment Adviser or any such
sub-investment adviser with research advice and other services. In no instance
will portfolio securities be purchased from or sold to BISYS Fund Services
Limited Partnership, the Investment Adviser, any sub-investment adviser employed
by the Investment Adviser, or any affiliated person (as defined in the 0000 Xxx)
of the Trust, BISYS Fund Services Limited Partnership, the Investment Adviser,
or any sub-investment adviser employed by the Investment Adviser, except as
permitted in the 1940 Act;
(e) will treat confidentially and as proprietary information of the
Trust all records and other information relative to the Trust and prior,
present, or potential shareholders of the Trust learned by, or disclosed to, the
Investment Adviser in the course of its performance of its responsibilities and
duties under the Agreement, 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 the
Investment Adviser may be exposed to civil, regulatory or criminal sanctions for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust; and
(f) will maintain its policy and practice of conducting its
fiduciary functions independently. In making investment recommendations for the
Trust, the Investment Adviser's personnel will not inquire or take into
consideration whether the issuers of securities proposed for purchase or sale
for the Trust's account are customers of the Investment Adviser, any
sub-investment adviser employed by the Investment Adviser or of the parents or
subsidiaries or affiliates of the Investment Adviser or any sub-investment
adviser employed by the Investment Adviser unless so required by applicable law.
In dealing with its customers, the Investment Adviser and its parent,
subsidiaries, and affiliates will not inquire or take into consideration whether
securities of those customers are held by the Trust.
4. USE OF SUB-INVESTMENT ADVISER. The Investment Adviser may, subject
to the approvals required under the 1940 Act, employ a sub-investment adviser to
assist the Investment Adviser in the performance of its duties under this
Agreement. Such use does not relieve the Investment Adviser of any duty or
liability it would otherwise have under this Agreement. Compensation of any such
sub-investment adviser for services provided and expenses assumed under any
agreement between the Investment Adviser and such sub-investment adviser
permitted under this paragraph is the sole responsibility of the Investment
Adviser.
5. SERVICES NOT EXCLUSIVE. The investment management services furnished
by the Investment Adviser hereunder are not to be deemed exclusive. Except to
the extent necessary to perform the Investment Adviser's obligations under this
Agreement, nothing herein shall be deemed to limit or restrict the right of the
Investment Adviser, or any subsidiary or affiliate of the Investment Adviser, or
any employee of the Investment Adviser, to engage in any other business or to
devote time and attention to any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other person.
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6. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Investment Adviser hereby agrees that all records which
it maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request.
The Investment Adviser further agrees to preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act the records required to be maintained by Rule
31a-1 under the 1940 Act.
7. EXPENSES. During the term of this Agreement, the Investment 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 or charges, if any) purchased for the Trust. The Trust will be
responsible for all of the Trust's expenses and liabilities.
8. COMPENSATION. For the services provided and the expenses assumed
pursuant to this Agreement, each of the Funds will pay the Investment Adviser
and the Investment Adviser will accept as full compensation therefor a fee
computed daily and paid monthly on the first business day of each month equal to
the lesser of (i) the fee at the applicable annual rate set forth on Schedule A
hereto or (ii) such fee as may from time to time be agreed upon in writing by
the Trust and the Investment Adviser. If the fee payable to the Investment
Adviser pursuant to this paragraph begins to accrue after the beginning of any
month or if this Agreement terminates before the end of any month, the fee for
the period from such date to the end of such month or from the beginning of such
month to the date of termination, as the case may be, shall be prorated
according to the proportion which such period bears to the full month in which
such effectiveness or termination occurs. For purposes of calculating fees, the
value of a Fund's net assets shall be computed in the manner specified in the
Prospectus and the Trust's Declaration of Trust for the computation of the value
of the Fund's net assets in connection with the determination of the net asset
value of the Fund's shares.
If in any fiscal year the aggregate expenses (as defined under the
securities regulations of any state having jurisdiction over the Trust) of any
of the Funds of the Trust exceed the expense limitations of any such state, the
Investment Adviser will make payment to the Trust for a portion of such excess
expenses equal to such excess times the ratio of the aggregate fees otherwise
payable by the Fund to the Investment Adviser hereunder to the aggregate fees
otherwise payable by the Fund to the Investment Adviser hereunder and to BISYS
Fund Services Limited Partnership under the Management and Administration
Agreement between BISYS Fund Services Limited Partnership and the Trust. The
obligation of the Investment Adviser to make payment to the Trust hereunder is
limited in any fiscal year to the amount of its fee hereunder for such fiscal
year, PROVIDED, HOWEVER, that notwithstanding the foregoing, the Investment
Adviser shall make payment to the Trust for such proportion of such excess
expenses regardless of the amount of fees received by it during such fiscal year
to the extent that the securities regulations of any state having jurisdiction
over the Trust so require. Such expense reimbursement, if any, will be estimated
daily and reconciled and paid on a monthly basis.
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9. LIMITATION OF LIABILITY. The Investment Adviser shall not be liable
for any error of judgment or mistake of law or for any loss suffered by the
Funds in connection with the performance of this Agreement, except a loss
resulting from a breach of fiduciary duty under the 1940 Act with respect to the
receipt of compensation for services or a loss resulting from willful
misfeasance, bad faith or gross negligence on the part of the Investment Adviser
in the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement. In no case shall the Investment
Adviser be liable for actions taken or non-actions with respect to the
performance of services under this Agreement based upon specific information,
instructions, or requests given or made to the Investment Adviser by an officer
of the Trust thereunto duly authorized.
10. DURATION AND TERMINATION. This Agreement will become effective as
to a particular Fund as of the date first written above, provided that it shall
have been approved by vote of a majority of the outstanding voting securities of
such Fund, in accordance with the requirements under the 1940 Act. Unless sooner
terminated as provided herein, this Agreement shall continue in effect until
August 1, 1998 and thereafter, if not terminated, shall continue in effect as to
a particular Fund for successive periods of twelve months each ending on August
1 of each year, PROVIDED such continuance 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 parties to this Agreement or interested persons of any
party to this Agreement, 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 a majority of the outstanding voting securities of
such Fund. Notwithstanding the foregoing, this Agreement may be terminated as to
a particular Fund at any time on sixty days' written notice, without the payment
of any penalty, by the Trust (by vote of the Trust's Board of Trustees or by
vote of a majority of the outstanding voting securities of such Fund) or by the
Investment 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" shall have
the same meaning of such terms in the 1940 Act.)
11. 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.
12. 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 shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
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This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and shall be governed by the
law of The Commonwealth of Massachusetts.
The names "American Performance Funds" and "Trustees of American
Performance Funds" refer respectively to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time under an
Agreement and Declaration of Trust dated as of October 1, 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 "American Performance Funds" entered into in the name
or on behalf thereof by any of the Trustees, representatives or agents are made
not individually, but 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 any series of shares of
the Trust must look solely to the assets of the Trust belonging to such series
for the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
AMERICAN PERFORMANCE FUNDS
Seal By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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INVESTMENT CONCEPTS, INC.
Seal
By: /s/ Xxx Xxxxxxxxxx
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Name: Xxx Xxxxxxxxxx
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Title: President
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Schedule A
to the Investment Advisory Agreement between
American Performance Funds and Investment Concepts, Inc.
dated May 12, 2001
NAME OF FUND COMPENSATION*
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American Performance U.S. Annual rate of forty one-hundredths of one percent
Treasury Fund (0.40%) of American Performance U.S. Treasury Fund's
average daily net assets.
American Performance Cash Annual rate of forty one-hundredths of one percent
Management Fund (0.40%) of American Performance Cash Management
Fund's average daily net assets.
American Performance Bond Annual rate of fifty-five one-hundredths of one percent
Fund (0.55%) of American Performance Bond Fund's average
daily net assets.
American Performance Annual rate of fifty-five one-hundredths of one percent
Intermediate Bond Fund (0.55%) of American Performance Intermediate Bond
Fund's average daily net assets.
American Performance Annual rate of fifty-five one-hundredths of one percent
Intermediate Tax-Free (0.55%) of American Performance Intermediate Tax-Free
Bond Fund Bond Fund's average daily net assets.
American Performance Annual rate of fifty-five one-hundredths of one percent
Short-Term Income Fund (0.55%) of American Performance Short-Term Income
Fund's average daily net assets.
American Performance Equity Annual rate of sixty-nine one-hundredths of one percent
Fund (0.69%) of American Performance Equity Fund's average
daily net assets.
American Performance Annual rate of seventy-four one-hundredths of one
Balanced Fund percent (0.74%) of American Performance
Balanced Fund's average daily net assets.
American Performance Annual rate of sixty-nine one-hundredths of one
Growth Equity Fund percent (0.69%) of American Performance Growth
Equity Fund's average daily net assets.
Schedule A (continued)
to the Investment Advisory Agreement between
American Performance Funds and Investment Concepts, Inc.
dated May 12, 2001
NAME OF FUND COMPENSATION*
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American Performance Annual rate of sixty-nine one-hundredths of one
Small Cap Equity Fund percent (0.69%) of American Performance
Small Cap Equity Fund's average daily net assets.
American Performance Annual rate of fifteen one-hundredths of one
Institutional U.S. Treasury Fund percent (0.15%) of American Performance
Institutional U.S. Treasury Fund's average daily net
assets
American Performance Annual rate of fifteen one-hundredths of one
Institutional Cash Management Fund percent (0.15%) of American Performance
Institutional Cash Management Fund's average daily net
assets
[SEAL] AMERICAN PERFORMANCE FUNDS
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Date: May 12, 2001
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[SEAL] INVESTMENT CONCEPTS, INC.
By: /s/ Xxx Xxxxxxxxxx
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Name: Xxx Xxxxxxxxxx
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Date: May 12, 2001
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* All fees are computed daily and paid monthly.
