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EXHIBIT (5)(a)
INVESTMENT ADVISORY AGREEMENT
This Agreement is made as of January 1, 1998, between The Sessions
Group, an Ohio business trust (the "Trust"), and National Bank of Commerce, a
national banking association (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 confirm and retain the Investment Adviser
to continue to provide, or to arrange for the provision of, investment advisory
services to four 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 four existing 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:
ss.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.
ss.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, and any 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 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) 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
relating to the Funds; and
(f) 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.
ss.3. Management. Subject to the supervision of the Trust's Board of
Trustees, the Investment Adviser will provide, or arrange for the provision of,
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, or arrange for
others to 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, or arrange for others to 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, or arrange for the provision of, the
services under this Agreement in accordance with each of the Fund's investment
objectives, policies, and restrictions as stated in the Prospectus and
resolutions of the Trust's Board of Trustees.
Subject to the provisions of this Agreement, the Declaration of Trust
and the 1940 Act, the Investment Adviser directly and indirectly may select and
enter into contracts with one or more qualified investment advisers
("Sub-Advisers") to provide to the Trust some or all of the services required by
this Agreement. With respect to any such appointment by the Investment Adviser
of any of the Sub-Advisers, the Investment Adviser will, as appropriate:
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(a) prepare and provide to the Trust's Board of Trustees monthly
portfolio compliance reports for the Funds;
(b) maintain in accordance with the provisions of the 1940 Act
each Fund's records relating to the purchase and sale of
portfolio securities;
(c) provide general oversight of the Funds' continuous investment
programs; and
(d) periodically review, evaluate and report, no less frequently
than quarterly, to the Trust's Board of Trustees with respect
to the performance of the Sub-Advisers and the activities and
performance of the Adviser.
In fulfilling its responsibilities hereunder, the Investment Adviser
further agrees that it will, or, with respect to services provided to the Trust
by any of the Sub-Advisers appointed by the Investment Adviser, that it will
require that each of the Sub-Advisers:
(i) 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;
(ii) conform with all applicable Rules and Regulations of the
Securities and Exchange Commission and in addition will conduct its
activities under this Agreement (or any applicable sub-investment
advisory agreement) in accordance with any applicable regulations of
any governmental authority pertaining to the investment advisory
activities of the Investment Adviser;
(iii) not make loans to any person to purchase or carry shares
of beneficial interest in the Trust or make loans to the Trust;
(iv) 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, or require that each of the
Sub-Advisers 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 or any of the Sub-Advisers
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
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the specific transaction and on a continuing basis). Consistent with
this obligation, the Investment Adviser and any of the Sub-Advisers
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 or any of the
Sub-Advisers 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 and any
of the Sub-Advisers are 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 or Sub-Advisers determine 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 or Sub-Advisers 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 of shares of
the Trust. Except as otherwise permitted by applicable laws, rules and
regulations or any exemptions therefrom, in no instance will portfolio
securities be purchased from or sold to BISYS Fund Services Limited
Partnership, the Investment Adviser, any Sub-Adviser, or any affiliated
person of the Trust, BISYS Fund Services Limited Partnership, the
Investment Adviser or any Sub-Adviser;
(v) 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;
(vi) 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 or any Sub-Adviser may be exposed to civil
or criminal contempt proceedings for failure to comply, when
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requested to divulge such information by duly constituted authorities,
or when so requested by the Trust; and
(vii) will maintain its policy and practice of conducting its
fiduciary functions independently. In making investment recommendations
for the Funds, the Investment Adviser's or Sub-Advisers' 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 any Sub-Adviser or of their
respective parents, subsidiaries or affiliates. In dealing with such
customers, the Investment Adviser or any Sub-Adviser and their
respective parents, subsidiaries, and affiliates will not inquire or
take into consideration whether securities of those customers are held
by the Trust.
ss.4. Services Not Exclusive. The investment management services
furnished by the Investment Adviser and any Sub-Adviser hereunder are not to be
deemed exclusive, and the Investment Adviser and any Sub-Adviser shall be free
to furnish similar services to others so long as its services under this
Agreement or any sub-advisory agreement are not impaired thereby.
ss.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, and to require each of the Sub-Advisers to
surrender promptly, to the Trust any of such records upon the Trust's request.
The Investment Adviser further agrees to preserve, and to require each of the
Sub-Advisers 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.
ss.6. Expenses. During the term of this Agreement, the Investment
Adviser will pay all expenses, including as applicable, the compensation of any
Sub-Advisers appointed by it, 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.
ss.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 effective
date of this Agreement; provided, however, that 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.
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ss.8. 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 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.
ss.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 December 31, 1999.
Thereafter, if not terminated, this Agreement shall continue in effect
as to a particular Fund for successive periods of twelve months each ending on
December 31st 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 at least 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.)
ss.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.
ss.11. Amendment of this Agreement. No provision of this Agree- ment
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which
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enforcement of the change, waiver, discharge or termination is sought.
ss.12. Name. The Trust hereby acknowledges that the name "First Market"
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 "First Market" 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 "First Market" 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.
ss.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.
NATIONAL BANK OF COMMERCE THE SESSIONS GROUP
By By
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Name Name
--------------------------- --------------------------------
Title Title
-------------------------- -------------------------------
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Dated: January 1, 1998
Schedule A
to the
Investment Advisory Agreement
between The Sessions Group and
National Bank of Commerce
dated as of January 1, 1998
Name of Fund Compensation* Date
------------ ------------- ----
First Market Money Annual Rate of January 1, 1998
Market Fund thirty-five one-
hundredths of one
percent (0.35%) of
such Fund's average
net assets
First Market Value Annual rate of one January 1, 1998
Equity Fund percent (1.00%) of
such Fund's first
$250 million of
average daily net
assets and seventy-
five one-hundredths
of one percent
(0.75%) of such
Fund's remaining
average daily net
assets
First Market Fixed Annual rate of January 1, 1998
Income Fund sixty-five one-
hundredths of one
percent (0.65%) of
such Fund's average
daily net assets
----------
*All Fees are computed daily and paid monthly.
X-0
00
Xxxxx Xxxxxx Xxxxxx Annual rate of one January 1, 1998
Fund percent (1.00%) of
such Fund's first
$250 million of
average daily net
assets and seventy-
five one-hundredths
of one percent
(0.75%) of such
Fund's remaining
average daily net
assets
THE SESSIONS GROUP
By
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Name
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Title
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NATIONAL BANK OF COMMERCE
By
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Name
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Title
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