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Exhibit (5)(e)
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INVESTMENT ADVISORY AGREEMENT
This Agreement is made as of July 9, 1996, between THE SESSIONS GROUP,
an Ohio business trust (the "Trust"), and Xxxxxxxxxx Xxxxxx & Company, Inc., a
Pennsylvania corporation (the "Investment Adviser").
WHEREAS, the Trust is registered as an open-end 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
provide, or to arrange for the provision of, investment advisory services to
two newly created investment portfolios of the Trust and may retain the
Investment Adviser to serve in such capacity to certain additional investment
portfolios of the Trust, all as now or hereafter may be identified in Schedule
A hereto (such new investment portfolios and any such additional investment
portfolios together called the "Funds") and the Investment Adviser represents
that it is willing and possesses legal authority to so furnish such services
without violation of applicable laws (including the Xxxxx-Xxxxxxxx Act) and
regulations;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
Section 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. Additional investment portfolios may from time
to time be added to those covered by this Agreement by the parties executing a
new Schedule A which shall become effective upon its execution and shall
supersede any Schedule A having an earlier date.
Section 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 Declaration of Trust, executed as of
April 25, 1988, and as filed with the Secretary of State of Ohio on
April 25, 1988, as amended or restated to the date hereof (such
Declaration, 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 any amendments thereto;
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(c) resolutions of the Trust's Board of Trustees
authorizing the appointment of the Investment Adviser and approving
this Agreement;
(d) the Trust's Notification of Registration on Form N-8A
under the 1940 Act as filed with the Securities and Exchange
Commission on April 27, 1988 and all amendments thereto;
(e) all of the Trust's procedures and guidelines and all
resolutions of the Trust's Board relevant to the services to be
provided by the Investment Adviser hereunder;
(f) the Trust's Registration Statement on Form N-1A under
the Securities Act of 1933, as amended ("1933 Act"), (File No.
33-21489), and under the 1940 Act as filed with the Securities and
Exchange Commission and the most recent amendment thereto; and
(g) the most recent Prospectus and Statement of
Additional Information of each of 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 furnish the Investment Adviser from time to
time with copies of all amendments of or supplements to the foregoing.
Section 3. Management. Subject to the supervision of the
Trust's Board of Trustees, the Investment Adviser will provide a continuous
investment program for each of the Funds, including investment research and
management with respect to all securities and investments and cash equivalents
in the Funds. The Investment Adviser will determine from time to time what
securities and other investments will be purchased, retained or sold by the
Trust with respect to the Funds and will implement such determinations through
the placement, in the name of the Funds, of orders for the execution of
portfolio transactions with or through such brokers or dealers as it may
select. The Investment Adviser will provide the services under this Agreement
in accordance with each of the Fund's investment objectives, policies, and
restrictions as stated in the Prospectus, as the same may be amended,
supplemented or restated from time to time, and resolutions of the Trust's
Board of Trustees.
In fulfilling its responsibilities hereunder, the Investment Adviser
further agrees that it will:
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(a) 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) conform with all applicable Rules and Regulations of
the Securities and Exchange Commission and in addition will conduct
its activities under this Agreement in accordance with any applicable
regulations of any governmental authority pertaining to the investment
advisory activities of the Investment Adviser;
(c) not make loans to any person to purchase or carry
shares of beneficial interest in the Trust or make loans to the Trust;
(d) place orders pursuant to its investment
determinations for the Funds either directly with the issuer or with
any broker or dealer. In placing orders with brokers and dealers, the
Investment Adviser will attempt to obtain prompt execution of orders
in an effective manner at the most favorable price. In assessing the
best execution available for any transaction, the Investment Adviser
shall consider all factors it deems relevant, including the breadth of
the market in the security, the price of the security, the financial
condition and execution capability of the broker-dealer and the
reasonableness of the commission, if any (for the specific transaction
and on a continuing basis). Consistent with this obligation, the
Investment Adviser may, in its discretion and to the extent permitted
by law, purchase and sell portfolio securities to and from brokers and
dealers who provide brokerage and research services (within the
meaning of Section 28(e) of the Securities Exchange Act of 1934) to or
for the benefit of the Funds and/or other accounts over which the
Investment Adviser exercises investment discretion. Subject to the
review of the Trust's Board of Trustees from time to time with respect
to the extent and continuation of the policy, the Investment Adviser
is authorized to pay a broker or dealer who provides such brokerage
and research services a commission for effecting a securities
transaction for any of the Funds which is in excess of the amount of
commission another broker or dealer would have charged for effecting
that transaction if, but only if, the Investment Adviser determines in
good faith that such commission was reasonable in relation to the
value of the brokerage and research services provided by such broker
or dealer, viewed in terms of either that particular transaction or
the overall responsibilities of the Investment Adviser with respect to
the accounts as to which it exercises investment discretion. In
placing orders with brokers and dealers, consistent with applicable
laws, rules and regulations, the Investment Adviser may consider the
sale
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of shares of the Trust. Except as otherwise permitted by applicable
laws, rules and regulations, in no instance will portfolio securities
be purchased from or sold to BISYS Fund Services Limited Partnership,
the Investment Adviser or any affiliated person of the Trust, BISYS
Fund Services Limited Partnership or the Investment Adviser;
(e) will maintain all books and records with respect to
the securities transactions of the Funds and will furnish the Trust's
Board of Trustees such periodic and special reports as the Board may
request;
(f) will treat confidentially and as proprietary
information of the Trust all records and other information relative to
the Trust and the Funds and prior, present, or potential shareholders,
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 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; and
(g) will maintain its policy and practice of conducting
its fiduciary functions independently. In making investment
recommendations for the Funds, 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 or of its parents, subsidiaries or
affiliates. In dealing with such customers, the Investment Adviser
and its parents, subsidiaries, and affiliates will not inquire or take
into consideration whether securities of those customers are held by
the Trust.
Section 4. Services Not Exclusive. The investment management
services furnished by the Investment Adviser hereunder are not to be deemed
exclusive, and the Investment Adviser shall be free to furnish similar services
to others so long as its services under this Agreement are not impaired
thereby.
Section 5. 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 Funds 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
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prescribed by Rule 31a-2 under the 1940 Act, the records required to be
maintained by Rule 31a-1 under the 1940 Act.
Section 6. 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, if any) purchased for the Funds.
Section 7. 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 as set forth on Schedule A hereto. The obligations of the Funds
to pay the above-described fee to the Investment Adviser will begin as of the
respective dates of the initial public sale of shares in the Funds; provided,
however, that the Investment Adviser shall waive all such fees until such time
as it notifies the Trust that it has terminated such waiver. Thereafter, the
Investment Adviser may from time to time waive some or all of such fees until
such time as it notifies the Trust that it has terminated such waiver. Upon
any termination of this Agreement before the end of any month, the fee for such
part of a month shall be prorated according to the proportion which such period
bears to the full monthly period and shall be payable upon the date of
termination of this Agreement.
For the purpose of determining fees payable to the Investment Adviser,
the value of the net assets of a particular Fund shall be computed in the
manner described in the Trust's Declaration of Trust or in the Prospectus or
Statement of Additional Information respecting that Fund as from time to time
is in effect for the computation of the value of such net assets in connection
with the determination of the liquidating value of the shares of such Fund.
If in any fiscal year the aggregate expenses of any of the Funds (as
defined under the securities regulations of any state having jurisdiction over
the Trust) exceed the expense limitations of any such state, the Investment
Adviser will reimburse the Fund for a portion of such excess expenses equal to
such excess times the ratio of the 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 Administration Agreement between BISYS Fund Services
Limited Partnership and the Trust and to BISYS Fund Services, Inc. under the
Fund Accounting Agreement between BISYS Fund Services, Inc. and the Trust. The
obligation of the Investment Adviser to reimburse the Funds 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
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reimburse the Funds for such proportion of such excess expenses regardless of
the amount of fees paid to 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.
Section 8. Limitation of Liability. Notwithstanding anything
herein to the contrary, 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 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.
Section 9. Duration and Termination. This Agreement will become
effective as of the date first written above (or, if a particular Fund is not
in existence on that date, on the date a registration statement relating to
that Fund becomes effective with the Securities and Exchange Commission and
Schedule A hereto is amended to add such Fund), 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, and, unless
sooner terminated as provided herein, shall continue in effect until July 9,
1998.
Thereafter, if not terminated, this Agreement shall continue
in effect as to a particular Fund for successive periods of twelve months each
ending on July 9 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 all
votes attributable to the outstanding Shares 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 meanings as ascribed
to such terms in the 1940 Act.)
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Section 10. Investment Adviser's Representations. The Investment
Adviser hereby represents that it is willing and possesses all requisite legal
authority to provide the services contemplated by this Agreement without
violation of applicable laws and regulations, including but not limited to the
Xxxxx-Xxxxxxxx Act and the regulations promulgated thereunder.
Section 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.
Section 12. Name. The Trust hereby acknowledges that the name
"KeyPremier" is a property right of the Investment Adviser. The Investment
Adviser agrees that the Trust and the Funds may, so long as this Agreement
remains in effect, use "KeyPremier" as part of its name. The Investment
Adviser may permit other persons, firms or corporations, including other
investment companies, to use such name and may, upon termination of this
Agreement, require the Trust and the Funds to refrain from using the name
"KeyPremier" in any form or combination in its name or in its business or in
the name of any of its Funds, and the Trust shall, as soon as practicable
following its receipt of any such request from the Investment Adviser, so
refrain from using such name.
Section 13. 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. 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 State of Ohio.
The Sessions Group is a business trust organized under Chapter
1746, Ohio Revised Code and under a Declaration of Trust, to which reference is
hereby made and a copy of which is on file at the office of the Secretary of
State of Ohio as required by law, and to any and all amendments thereto so
filed or hereafter filed. The obligations of "The Sessions Group" entered into
in the name or on behalf thereof by any of the Trustees, officers, employees or
agents are made not individually, but in such capacities, and are not binding
upon any of the Trustees, officers, employees, agents or shareholders of the
Trust personally, but bind only the assets of the Trust, as set forth in
Section 1746.13(A), Ohio Revised Code, and all persons dealing with any of the
Funds of the Trust 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 officers designated below as of the day and year first
above written.
THE SESSIONS GROUP
By /s/ Xxxxxx X. Xxxxx
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Name Xxxxxx X. Xxxxx
Title President
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XXXXXXXXXX XXXXXX & COMPANY, INC.
By /s/ Xxxxxx X. Xxxxxx
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Name Xxxxxx X. Xxxxxx
Title Chief Operating Officer
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Dated: January __, 1997
Schedule A
to the
Investment Advisory Agreement
between The Sessions Group and
Xxxxxxxxxx Xxxxxx & Company, Inc.
dated as of July 9, 1996
Name of Fund Compensation* Date
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The KeyPremier Prime Annual Rate of forty July 9, 1996
Money Market Fund one-hundredths of one
percent (0.40%) of such
Fund's average net
assets
The KeyPremier Annual rate of sixty July 9, 1996
Pennsylvania Municipal one-hundredths of one
Bond Fund percent (.60%) of such
Fund's average daily net
assets
The KeyPremier Annual rate of seventy- October __, 1996
Established Growth Fund five one-hundredths of
one percent (.75%) of
such Fund's average
daily net assets
The KeyPremier Annual rate of sixty October __, 1996
Intermediate Term Income one-hundredths of one
Fund percent (.60%) of such
Fund's average daily net
assets
The KeyPremier Aggressive Annual rate of one January __, 1997
Growth Fund percent (1.00%) of such
Fund's average daily net
assets
XXXXXXXXXX XXXXXX & COMPANY, INC. THE SESSIONS GROUP
By By
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Name Xxxxxx X. Xxxxxx Name Xxxxxx X. Xxxxx
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Title Chief Operating Officer Title President
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__________________________________
*All Fees are computed daily and paid monthly.
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