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EXHIBIT 5(b)
SUB-INVESTMENT ADVISORY AGREEMENT
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SUB-INVESTMENT ADVISORY AGREEMENT
AMERICAN PERFORMANCE CASH MANAGEMENT FUND
AGREEMENT executed as of June 16, 1997 by and between BANK OF OKLAHOMA,
N.A. ("Bank of Oklahoma"), and AMR INVESTMENT SERVICES, INC. ("Sub-Adviser").
WHEREAS, Bank of Oklahoma is the investment adviser to the American
Performance Cash Management Fund (the "Fund"), an investment portfolio of the
American Performance Funds (the "Trust"); and
WHEREAS, Bank of Oklahoma desires to retain the Sub-Adviser to furnish
investment advisory services in connection with the Fund; and
WHEREAS, Sub-Adviser is willing to make available to Bank of Oklahoma
and to the Fund certain sub-investment advisory services;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. APPOINTMENT. Bank of Oklahoma hereby appoints the Sub-Adviser to
provide certain sub-investment advisory services for the period and on the terms
set forth in this Agreement. The Sub-Adviser accepts such appointment and agrees
to furnish the services herein set forth for the compensation herein provided.
2. DELIVERY OF DOCUMENTS. Bank of Oklahoma has furnished the
Sub-Adviser with copies properly certified or authenticated of each of the
following:
(a) the Trust's Agreement and Declaration of Trust, as filed
with the Secretary of State of The Commonwealth of
Massachusetts on October 1, 1987, and all amendments thereto
or restatements thereof (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 Bylaws and any amendments thereto;
(c) resolutions of the Trust's Board of Trustees authorizing
the appointment of the Sub-Adviser and approving this
Agreement;
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(d) the Trust's Notification of Registration on Form N-8A
under the Investment Company Act of 1940 (the "1940 Act") as
filed with the Securities and Exchange Commission (the "SEC")
on June 1, 1990, and all amendments thereto;
(e) the Trust's Registration Statement on Form N-1A under the
Securities Act of 1933, as amended ("1933 Act") (File No.
33-35190) and under the 1940 Act (File No. 811-6114) as filed
with the Securities and Exchange Commission and all amendments
thereto; and
(f) the Trust's most recent prospectus for the Fund and its
Statement of Additional Information (such prospectus and
Statement of Additional Information, as presently in effect,
and all amendments and supplements thereto, are herein
collectively called the "Prospectus").
Bank of Oklahoma will promptly furnish the Sub-Adviser with copies of
all amendments of or supplements to the foregoing.
3. MANAGEMENT. Subject always to the supervision of Bank of Oklahoma
and the Trust's Board of Trustees, the Sub-Adviser will furnish an investment
program in respect of, and make investment decisions for, the Fund, and place
all orders for the purchase and sale of securities for the Fund. In the
performance of its duties, the Sub-Adviser will comply with the provisions of
the Trust's Declaration of Trust and Code of Regulations, and the stated
investment objectives, policies and restrictions of the Fund, will use its best
efforts to safeguard and promote the welfare of the Fund, and will comply with
other policies which the Trustees or Bank of Oklahoma, as the case may be, may
from time to time determine and provide notification to the Sub-Adviser in
writing. The Sub-Adviser and Bank of Oklahoma shall each make its officers and
employees available to the other from time to time to review investment policies
for the Fund and to consult with each other regarding the investment affairs of
the Fund. The Sub-Adviser shall report to the Board of Trustees and to Bank of
Oklahoma with respect to the implementation of such program.
The Sub-Adviser further agrees that it:
(a) will use the same skill and care in providing such
services as it uses in providing services to other accounts
for which it has investment management responsibilities;
(b) will conform with all applicable rules and regulations of
the Securities and Exchange Commission and in addition will
conduct its activities under this
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Agreement in accordance with any applicable regulations
pertaining to the investment advisory activities of the
Sub-Adviser;
(c) will place orders pursuant to its investment
determinations for the Fund either directly with the issuer or
with any broker or dealer. In placing orders with brokers and
dealers, the Sub-Adviser will attempt to obtain the best
combination of prompt execution of orders in an effective
manner and 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 Sub- Adviser may,
in its discretion, purchase and sell portfolio securities to
and from brokers and dealers who provide the Sub-Adviser with
research advice and other services. In no instance will the
Fund's portfolio securities be purchased from or sold to BISYS
Fund Services, Bank of Oklahoma, the Sub-Adviser or any
affiliated person of the Trust, Bank of Oklahoma, BISYS Fund
Services, or the Sub-Adviser, except as may be permitted under
the 1940 Act. Bank of Oklahoma and BISYS Fund Services will
provide to the Sub-Adviser, from time to time, a list of their
respective affiliated persons;
(d) will, at the reasonable request of Bank of Oklahoma or the
Trust, report to the Trust and to Bank of Oklahoma and will
make appropriate persons available for the purpose of
reviewing with representatives of Bank of Oklahoma the
management of the Fund, including, without limitation, review
of the general investment strategy of the Fund, interest rate
considerations and general conditions affecting the
marketplace;
(e) 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 will not use 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
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;
(g) will receive and comply with any written recommendations
that Bank of Oklahoma may make, from time to time, with
respect to the investment and reinvestment of the assets of
the Fund; and
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(h) will provide advice and recommendations with respect to
other aspects of the business and affairs of the Fund and
perform such other functions related to the provision of
investment management services as Bank of Oklahoma may
reasonably request.
4. BOOKS AND RECORDS. In compliance with Rule 31a-3 under the 1940 Act,
the Sub-Adviser hereby agrees that all records which it maintains for the Trust
on behalf of Bank of Oklahoma are the property of the Trust and further agrees
to surrender promptly to the Trust or to Bank of Oklahoma any of such records
upon request. The Sub-Adviser further agrees to preserve for the periods
prescribed by Rule 31a-2 adopted under the 1940 Act all records required to be
maintained by Sub-Adviser on behalf of Bank of Oklahoma under Rule 31a-1 adopted
under the 1940 Act.
5. EXPENSES. During the term of this Agreement, the 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 Fund.
6. COMPENSATION. For the services provided and the expenses assumed
pursuant to this Agreement, Bank of Oklahoma will pay the Sub-Adviser and the
Sub-Adviser will accept as full compensation therefor a fee computed daily and
paid monthly in arrears at an annual rate not less than fifteen one-hundredths
of one percent (.15%) nor more than forty one-hundredths of one percent (.40%)
of the Fund's average daily net assets.
7. SERVICES TO OTHERS. Bank of Oklahoma understands, and has advised
the Trust's Board of Trustees, that the Sub-Adviser now acts, and/or may in the
future act, as an investment adviser to managed accounts and as an investment
adviser, sub-adviser, or administrator to other investment companies. Bank of
Oklahoma has no objection to Sub-Adviser's acting in such capacities, provided
that whenever the Fund and one or more accounts or investment companies advised
by the Sub-Adviser have available funds for investment, investments suitable and
appropriate for each will be allocated in accordance with a formula believed by
the Sub-Adviser to be equitable to each such account or company.
Bank of Oklahoma 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, Bank of
Oklahoma understands, and has advised the Trust's Board of Trustees, that the
persons employed by the Sub-Adviser to assist in the 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 the
Sub-Adviser or any of its affiliates to engage in other businesses or render
services of whatever kind or nature.
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8. LIMITATION OF LIABILITY. The Sub-Adviser shall not be liable for any
error of judgment or mistake of law or for any loss suffered by Bank of Oklahoma
or by the Fund in connection with the performance of this Agreement, except a
loss resulting from willful misfeasance, bad faith or gross negligence on the
part of the Sub-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 Sub-Adviser be liable for any 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 Sub-Adviser in
writing by a representative of Bank of Oklahoma thereunto duly authorized, which
information, instructions, or requests are properly executed or acted upon by
the Sub-Adviser.
9. DURATION AND TERMINATION. This Agreement will become effective 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 the Fund, in accordance
with the require-ments under the 1940 Act, and, unless sooner terminated as
provided herein, shall continue in effect until August 1, 1998.
Thereafter, if not terminated, this Agreement shall continue in effect
for successive one-year periods ending on August 1, PROVIDED that 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
interested persons of the Trust, the Sub-Adviser, or Bank of Oklahoma, 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 the Fund.
Notwithstanding the foregoing, this Agreement may be terminated 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 the Fund), by Bank of Oklahoma, or by the Sub-
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 meaning
ascribed to such terms in the 1940 Act.)
10. 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.
11. 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
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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 laws of the Commonwealth of Massachusetts.
12. NOTICE. The name the "American Performance Funds" and "Trustees of
the 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 a 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 the "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 Fund 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.
13. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall constitute an original and each of which, collectively, shall
constitute one agreement.
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.
BANK OF OKLAHOMA, N.A.
By: /s/ H. Xxxxx Xxxxxxxx
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Title: Executive Vice President
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AMR INVESTMENT SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: President
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