<PAGE> 1
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION
14(A) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. _____)
Filed by the Registrant [X] Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-12
[ ] Confidential. For Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
American Performance Funds
3435 Stelzer Road
Columbus, Ohio 43219
------------------------------------------------
(Name of Registrant as Specified in its Charter)
Martin E. Lybecker, Esq
Ropes & Gray
1301 K Street, N.W., Suite 800 East
Washington, D.C. 20005
------------------------------------------
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:*
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1) Amount previously paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
Notes:
<PAGE> 2
AMERICAN PERFORMANCE FUNDS
Notice of Special Meeting of Shareholders
to be held June 16, 1997
A special meeting of the shareholders of the American Performance
Funds (the "Funds"), will be held at 9:00 a.m. at the offices of BISYS Fund
Services, Inc., 3435 Stelzer Road, Columbus, Ohio on June 16, 1997, for the
following purposes:
1. To approve or disapprove a new Sub-Investment Advisory Agreement between
the Funds' investment adviser, Bank of Oklahoma, N.A. ("BOK") and AMR
Investment Services, Inc. ("AMR") with respect to the Cash Management Fund;
and
2. To transact such other business as may properly come before the meeting or
any adjournment thereof.
The Board of Trustees has fixed April 23, 1997 as the record date for
determination of shareholders entitled to vote at this meeting.
By Order of the Trustees
D'Ray Moore
Secretary
May 16, 1997
YOU CAN HELP AVOID THE NECESSITY AND EXPENSE OF SENDING FOLLOW-UP LETTERS TO
ENSURE A QUORUM BY PROMPTLY RETURNING THE ENCLOSED PROXY. IF YOU ARE UNABLE TO
ATTEND THE MEETING, PLEASE MARK, SIGN, DATE AND RETURN THE ENCLOSED PROXY SO
THAT THE NECESSARY QUORUM MAY BE REPRESENTED AT THE SPECIAL MEETING. THE
ENCLOSED ENVELOPE REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES.
<PAGE> 3
American Performance Funds
3435 STELZER ROAD
COLUMBUS, OHIO 43219
PROXY STATEMENT
The enclosed proxy is solicited on behalf of the Board of Trustees
(the "Trustees") of the American Performance Funds (the "Funds"). The proxy is
revocable at any time before it is voted by sending written notice of the
revocation to the Funds or by appearing personally at the June 16, 1997 special
meeting of shareholders of the Funds (the "Special Meeting"). The cost of
preparing and mailing the notice of meeting, the proxy card, this proxy
statement and any additional proxy material has been or is to be borne by the
Funds. Proxy solicitations will be made primarily by mail, but may also be made
by telephone, telegraph, fax or personal interview conducted by certain
officers or employees of the Funds or BISYS Fund Services, Inc. (the Funds'
administrator) or, if necessary, a commercial firm retained for this purpose.
In the event that the shareholder signs and returns the proxy ballot, but does
not indicate a choice as to any of the items on the proxy ballot, the proxy
attorneys will vote those shares in favor of such proposal(s).
Only shareholders of record at the close of business on April 23, 1997
will be entitled to vote at the Special Meeting. On April 23, 1997, the
American Performance Cash Management Fund ("Cash Management Fund") had
outstanding 359,565,530 shares of beneficial interest ("Shares"), each Share
being entitled to one vote, and each fractional Share being entitled to a
proportionate fractional vote.
For purposes of determining the presence of a quorum and counting
votes on the matters presented, Shares represented by abstentions and "broker
non-votes" will be counted as present, but not as votes cast, at the Special
Meeting. Under the Investment Company Act of 1940 (the "1940 Act"), the
affirmative vote necessary to approve the matter under consideration may be
determined with reference to a percentage of votes present at the Special
Meeting, which would have the effect of treating abstentions and non-votes as
if they were votes against the proposal.
The Funds' executive offices are located at 3435 Stelzer Road,
Columbus, Ohio 43219. This proxy statement and the enclosed notice of meeting
and proxy card are first being mailed on or about May 16, 1997.
A copy of the Funds' Annual Report dated August 31, 1996 is available
upon request and may be obtained by calling 1-800-762-7085.
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<PAGE> 4
INTRODUCTION
This Special Meeting is being called for the following purposes: (1)
to approve or disapprove a new Sub-Investment Advisory Agreement between the
Funds' investment adviser, Bank of Oklahoma, N.A. ("BOK") and AMR Investment
Services, Inc. ("AMR") with respect to the Cash Management Fund; and (2) to
transact such other business as may properly come before the meeting or any
adjournment thereof.
Approval of Proposal (1) with respect to the Cash Management Fund
requires the affirmative vote of: (a) 67% or more of the Shares of such Fund
present at the Special Meeting, if the holders of more than 50% of the
outstanding Shares are present or represented by proxy, or (b) more than 50% of
the outstanding Shares of such Fund, whichever is less.
PROPOSAL (1)
APPROVAL OR DISAPPROVAL OF NEW SUB-INVESTMENT
ADVISORY AGREEMENT BETWEEN BOK AND
AMR WITH RESPECT TO THE CASH MANAGEMENT FUND
BOK, at its own expense, currently employs AMR as the sub-adviser to
the Cash Management Fund. BOK wishes additional flexibility with respect to the
amount of compensation it pays to AMR for this service. It is therefore being
proposed that a new sub-investment advisory agreement be approved between BOK
and AMR. All of the terms of the new sub-investment advisory agreement would be
the same as those of the existing sub-investment advisory agreement, except for
the fees to be paid to AMR by BOK, which would be increased up to .40% of the
Fund's average daily net assets. The investment advisory fee of .40% paid by
the Fund to BOK will remain unchanged. A copy of the proposed sub-investment
advisory agreement between BOK and AMR (the "New Sub-Advisory Agreement")
appears as Exhibit A to this proxy statement.
AMR currently serves as the sub-investment adviser to the Cash
Management Fund pursuant to a sub-advisory agreement between BancOklahoma Trust
Company ("BOTC") and AMR dated as of October 1, 1994 (the "Current Sub-Advisory
Agreement"). (Effective March 31, 1997, BOTC merged into its parent, BOK.) The
Current Sub-Advisory Agreement was last submitted to a vote of the shareholders
of the Cash Management Fund on September 24, 1994, for the purpose of approving
the Current Sub-Advisory Agreement when AMR became the sub-investment adviser
to the Cash Management Fund.
Under the Current Sub-Advisory Agreement, AMR agrees to furnish an
investment program with respect to, and make investment decisions for, the Cash
Management Fund and to place all orders for the purchase and sale of securities
for the Fund. For the services provided and the expenses assumed pursuant to
the Current Sub-Advisory Agreement, BOK pays AMR a fee computed daily and paid
monthly in arrears at an annual rate of fifteen one-hundredths of one percent
(.15%) of the Fund's average daily net assets. For the fiscal year ended August
31, 1996, AMR received sub-investment advisory fees of $487,172.
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<PAGE> 5
The Funds' Trustees, including a majority of Trustees who are not
interested persons of the Funds, BOK, or AMR, unanimously approved the New
Sub-Advisory Agreement at a meeting held on April 17, 1997 and directed that it
be submitted to the shareholders of the Cash Management Fund for their
approval. The New Sub-Advisory Agreement differs from the Current Sub-Advisory
Agreement only in that the compensation which BOK will pay to AMR under the
contract is changed to 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. Had the proposed new fee arrangement been in effect, for the fiscal
year ended August 31, 1996, AMR would have received an amount between a minimum
of $498,295 and a maximum of $1,328,786. If the maximum fee had been received
by AMR, this would have been 173% higher than the fee received under the
Current Sub-Advisory Agreement. If the minimum fee had been received, there
would have been no increase.
BOK desires more flexibility in the amount it can pay AMR in order to
allow it to better manage its relationship with AMR. A flexible fee structure
will allow BOK to react to changes in circumstances with respect to the duties,
expenses, and liabilities AMR has assumed under the Sub-Advisory Agreement,
while the fixed fee under the Current Sub-Advisory Agreement could be too rigid
to allow appropriate reactions to changing circumstances.
The Trustees agree that the flexibility that would be afforded by the
fee structure under the New Sub-Advisory Agreement will be in the best
interests of the Cash Management Fund and its Shareholders. The Trustees placed
particular significance on the fact that the recommended change will not cause
an increased level of expense to the Fund, since all sub-advisory fees are paid
by BOK. The amount of the investment advisory fee that BOK is entitled to from
the Cash Management Fund will not be changed under the proposal. Shareholders
of the Cash Management Fund will not experience an increase in investment
advisory fees.
All other provisions of the Current Sub-Advisory Agreement would
remain the same. BOK continues to have full responsibility for providing
investment advisory services to the Cash Management Fund. BOK will discharge
this responsibility in part through retention of AMR, at BOK's sole expense, to
manage the day-to-day investment program of the Fund. BOK will oversee the
activities of AMR and will be responsible for setting any policies it deems
appropriate for AMR's activities, subject to the direction of the Funds'
Trustees. The same personnel of AMR who have provided investment advice in the
past will continue to do so pursuant to the New Sub-Advisory Agreement.
The New Sub-Advisory Agreement continues to provide that AMR will not
be liable for any error of judgment or mistake of law or any loss suffered by
BOK or by the Funds in connection with its services under the Agreement except
a loss resulting from willful misfeasance, bad faith, or gross negligence on
the part of AMR in the performance of its duties or from the reckless disregard
by AMR of its obligations and duties under the Agreement. In addition, AMR
shall not be liable for any actions taken or non-actions with respect to the
performance of services under the New Sub-Advisory Agreement based upon
specific information, instructions, or requests given or made to AMR in writing
by BOK which instructions, or requests are properly executed or acted upon by
AMR.
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<PAGE> 6
Unless sooner terminated, the New Sub-Advisory Agreement will continue
for an initial term ending August 1, 1998 and will thereafter continue for
successive one-year terms, provided that such continuation is specifically
approved at least annually by the Funds' Trustees, or by the vote of a majority
of the outstanding shares of the Cash Management Fund and, in either case, by a
majority of the Trustees who are not interested persons as defined in the 1940
Act, by vote cast in person at a meeting called for such purpose. The New
Sub-Advisory Agreement is terminable at any time, without penalty, by vote of
the Trustees, by BOK, by majority vote of the outstanding shares of the Cash
Management Fund, or by AMR upon 60 days' written notice. The New Sub-Advisory
Agreement will terminate automatically in the event of its assignment, as
defined in the 1940 Act.
If the New Sub-Advisory Agreement is approved by shareholders, it will
be executed and effective on [ ,1997]. In the event that holders of a majority
of the outstanding Shares of the Cash Management Fund vote in the negative with
respect to the approval of the New Sub-Advisory Agreement, the Trustees will
consider such further action as it may determine to be in the best interests of
the Cash Management Fund shareholders.
THE TRUSTEES UNANIMOUSLY RECOMMEND THAT SHAREHOLDERS OF THE CASH
MANAGEMENT FUND VOTE TO APPROVE THE NEW SUB-ADVISORY AGREEMENT.
INFORMATION ABOUT BOK
The offices of Bank of Oklahoma, N.A. ("BOK") are located at Bank of
Oklahoma Tower, One Williams Center, Tulsa, Oklahoma 74103. Substantially all
of the capital stock of BOK is owned by BOK Financial Corporation ("BOK
Financial"). BOK Financial is controlled by its principal shareholder, George
B. Kaiser.
BOK Financial (previously named "Acquisition Holding Company") was
incorporated under the laws of the State of Oklahoma on October 24, 1990, for
the purpose of purchasing the interest of the Federal Deposit Insurance
Corporation ("FDIC") in BOK. George B. Kaiser, the organizing shareholder of
BOK Financial,, currently owns over 79% of the shares of BOK Financial common
stock, which he acquired pursuant to a purchase and sale agreement dated
October 25, 1990 among Mr. Kaiser, the FDIC and BOK Financial. Mr. Kaiser
became a controlling person of BOK Financial and, therefore, of BOK on June 7,
1991. Mr. Kaiser also serves as Chairman of the Board and Chief Executive
Officer of BOK. Mr. Kaiser's address is: George B. Kaiser, President & CEO,
Kaiser-Francis Oil Company, P.O. Box 21468, Tulsa, OK 74121-1468.
BOK does not serve as an investment adviser to any other registered
investment company.
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<PAGE> 7
INFORMATION ABOUT AMR
AMR, a Delaware corporation, is a wholly-owned subsidiary of AMR
Corporation, the parent company of American Airlines, Inc., and was organized
in 1986 to provide business management, advisory, administrative and asset
management consulting services to the AMR Investment Services Trust ("AMR
Trust"), the American AAdvantage Funds ("AAdvantage Funds"), the American
AAdvantage Mileage Funds ("Mileage Funds") and other investors. The principal
offices of both AMR and AMR Corporation are at 4333 Amon Carter Boulevard, Fort
Worth, Texas 76155. As of March 31, 1997, AMR had assets under management
(including assets under fiduciary advisory control) totaling approximately $17
billion, including approximately $7 billion under active management and $10
billion as named fiduciary or fiduciary adviser. Of the total, approximately
$12 billion in assets are related to AMR Corporation.
The AMR Trust, the AAdvantage Funds and the Mileage Funds operate
under a Hub and Spoke(R)1 structure, pursuant to which each AAdvantage Fund and
each Mileage Fund invests all of its investable assets in a corresponding
portfolio of the AMR Trust which has an investment objective identical to the
investing fund. The following funds for which AMR acts as investment adviser
have similar investment objectives to the Cash Management Fund.
<TABLE>
<CAPTION>
AMR's Fees
Assets as of ----------
March 31,
1997
Name of Fund ($ Millions) Management Other
------------- ------------ ---------- -----
<S> <C> <C> <C>
American AAdvantage Money Market Fund 1,522 .15% .05%
American AAdvantage Money Market Mileage Fund 133 .15% .05%
American AAdvantage Municipal Money Market Fund 66 .15% .05%
American AAdvantage Municipal Money Market Mileage Fund 29 .15% .05%
American AAdvantage U.S. Govt. Money Market Fund 111 .15% .05%
American AAdvantage U.S. Govt. Money Market Mileage Fund 12 .15% .05%
INTRUST Money Market Fund 65 .20%
</TABLE>
For the fiscal year ended August 31, 1996, AMR received $2,464,110 and
$1,421,549 in management fees and administrative services fees, respectively,
from the above AAdvantage and Mileage Funds and their corresponding portfolios
of the AMR Trust. During the same period, $42,166
- --------
1 "Hub and Spoke" is a registered service mark of Signature Financial
Group Inc.
-5-
<PAGE> 8
and $1,646 in management fees and administrative services fees, respectively,
were waived by AMR. The INTRUST Money Market Fund had not commenced operations
as of August 31, 1996.
The principal executive officers and directors of AMR, are as follows:
<TABLE>
<CAPTION>
Name and Position with AMR Other Substantial Occupation Type of Business
- -------------------------- ---------------------------- ----------------
<S> <C> <C>
Robert L. Crandall Chairman, President and Chief Airline; Travel and
Director and Chairman Executive Officer, AMR Information Technology;
Corporation; Director, Chairman, Oil Service
and Chief Executive Officer,
American Airlines, Inc.; Director,
The Sabre Group, Inc. Mr.
Crandall also serves as an officer
and/or director of various
subsidiaries of AMR Corporation.
Director, Halliburton Company.
Gerard J. Arpey Senior Vice President and Chief Airline; Travel and
Director and Vice Chairman Financial Officer, AMR Information Technology
Corporation; Director, The
Sabre Group, Inc. Mr. Arpey
also serves as an officer and/or
director of various subsidiaries
of AMR Corporation.
Jeffrey M. Jackson Vice President of Corporate Airline
Vice President and Treasurer Development and Treasurer,
AMR Corporation, (March
1995-Present); Vice President
of Corporate Development,
AMR Corporation. Mr. Jackson
also serves as an officer and/or
director of various subsidiaries
of AMR Corporatifon.
Charles D. Marlett Corporate Secretary, AMR Airline; the Arts
Secretary Corporation; Corporate
Secretary, American Airlines,
Inc. Mr. Marlett also serves as
an officer and/or director of
various subsidiaries of AMR
Corporation. Director, Dallas
Summer Musicals.
</TABLE>
-6-
<PAGE> 9
<TABLE>
<S> <C> <C>
Anne H. McNamara Senior Vice President and Airline; Travel and
Director General Counsel, AMR Information Technology;
Corporation; Senior Vice Energy
President, Administration and
General Counsel, American
Airlines, Inc.; Director, The
Sabre Group, Inc.;
Ms. McNamara also serves as
an officer and/or director of
various subsidiaries of AMR
corporation. Director, LGE
Energy Corp.
William F. Quinn President, AMR Investment Investment Adviser;
President Services, Inc.; Chairman and Credit Union; REIT;
Director, American Airlines Airline
Employees Federal Credit
Union. Mr. Quinn also serves
as an officer and/or director of
various subsidiaries of AMR
Corporation. Trustee and
President, AMR Investment
Services Trust, American
AAdvantage Funds, American
AAdvantage Mileage Funds;
Director, Crescent Real Estate
Equities, Inc.
</TABLE>
The address of each director or officer of AMR is 4333 Amon Carter
Blvd., Fort Worth, Texas 76155.
AFFILIATED BROKER TRANSACTIONS
In the fiscal year ended August 31, 1996, there were no brokerage
commissions paid to affiliated brokers of the Cash Management Fund, BOK, AMR,
or BISYS Fund Services.
OTHER MATTERS AND DISCRETION
OF PERSONS NAMED IN THE PROXY
While the Special Meeting is called to act upon any other business
that may properly come before it, at the date of this proxy statement the only
business which the management intends to present or knows that others will
present is the business stated in the Notice of
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<PAGE> 10
Meeting. If any other matters lawfully come before the Special Meeting, and in
all procedural matters at said Special Meeting, it is the intention that the
enclosed proxy shall be voted in accordance with the best judgment of the
persons named as proxies therein, or their substitutes, present and acting at
the Special Meeting.
If at the time any session of the Special Meeting is called to order,
a quorum is not present, in person or by proxy, the persons named as proxies
may vote those proxies that have been received to adjourn the Special Meeting
to a later date. In the event that a quorum is present but sufficient votes in
favor of one or more of the proposals have not been received, the persons named
as proxies may propose one or more adjournments of the Special Meeting to
permit further solicitation of proxies with respect to any such proposal. All
such adjournments will require the affirmative vote of a majority of the Shares
present in person or by proxy at the session of the Special Meeting to be
adjourned. The persons named as proxies will vote those proxies that they are
entitled to vote in favor of the proposal, in favor of such an adjournment, and
will vote those proxies required to be voted against the proposal, against any
such adjournment. A vote may be taken on one or more of the proposals in this
proxy statement prior to any such adjournment if sufficient votes for its or
their approval have been received and it is otherwise appropriate.
As of April 23, 1997, the Fund believes that BOK was the shareholder
of record of 99.8% of the Shares of the Cash Management Fund. As of April 23,
1997, the Fund believes that BOK had voting power with respect to 57.8% of the
Cash Management Fund Shares. As a result, BOK may be deemed to be a
"controlling person" of the Fund under the 1940 Act.
The following list indicates the beneficial ownership of the
shareholders who, to the best knowledge of the Fund, are the beneficial owners
of more than 5% of the outstanding Shares of the Fund as of April 23, 1997:
CASH MANAGEMENT FUND
<TABLE>
<CAPTION>
AMOUNT OF BENEFICIAL PERCENT
NAME AND ADDRESS OWNERSHIP (SHARES) OF FUND(%)
- ---------------- ------------------ ----------
<S> <C> <C>
Williams Master Trust 21,251,799.27 5.91%
Bank of Oklahoma Trustee
One Williams Center
Tulsa, Oklahoma 74192
Superstar/Netlink 27,642,906.90 7.69%
Bank of Oklahoma Trustee
One Williams Center
Tulsa, Oklahoma 74192
</TABLE>
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<PAGE> 11
<TABLE>
<S> <C> <C>
Mayer, Brown & Platt Savings Plan 19,119,127.54 5.32%
Bank of Oklahoma Trustee
One Williams Center
Tulsa, Oklahoma 74192
</TABLE>
As of April 23, 1997, the Officers and Trustees of the Funds owned
less than 1% of the Fund's outstanding Shares.
INFORMATION ABOUT BISYS FUND SERVICES
The Fund's principal distributor and administrator is BISYS Fund
Services, Inc., 3435 Stelzer Road, Columbus, Ohio 43219. BISYS Fund Services,
Inc. is wholly owned by The BISYS Fund, Inc., 150 Clove Road, Little Falls, New
Jersey 07424, a publicly owned company engaged in information processing, loan
servicing and 401(k) administration and recordkeeping services to and through
banking and other financial organizations. The following persons are officers
of the Funds and may be deemed to have an interest in BISYS Fund Services, Inc.
by virtue of their status as employees and/or executive officers of that
company:
<TABLE>
<CAPTION>
OFFICER
OF THE
NAME POSITION WITH FUNDS AGE FUNDS SINCE
- ---- ------------------- --- -----------
<S> <C> <C> <C>
Walter B. Grimm Chairman, President and Trustee 51 1992
D'Ray Moore Vice President and Secretary 38 1995
Alaina J. Metz Assistant Secretary 29 1995
William J. Tomko Vice President 38 1991
Thomas E. Line Treasurer 29 1997
George O. Martinez Vice President 38 1995
</TABLE>
If you do not expect to attend the Special Meeting, please sign your
proxy card promptly and return it in the enclosed envelope to avoid unnecessary
expense and delay. No postage is necessary.
May 16, 1997
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<PAGE> 12
AMERICAN PERFORMANCE CASH MANAGEMENT FUND
PROXY FOR A SPECIAL MEETING OF
SHAREHOLDERS, JUNE 16, 1997
THIS PROXY IS SOLICITED ON BEHALF OF THE TRUSTEES OF AMERICAN
PERFORMANCE CASH MANAGEMENT FUND.
The undersigned hereby appoints ______________ and ________________
and each of them separately, proxies, with power of substitution, and hereby
authorizes them to represent and to vote, as designated below, at the Special
Meeting of Shareholders of American Performance Cash Management Fund on Monday,
June 16, 1997, at 9:00 a.m., Eastern time, and at any adjournments thereof, all
of the shares of the Fund which the undersigned would be entitled to vote if
personally present.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN
BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE
VOTED FOR PROPOSAL 1. IN THEIR DISCRETION, THE PROXIES ARE AUTHORIZED TO VOTE
UPON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE MEETING. THE TRUSTEES
RECOMMEND A VOTE FOR THE PROPOSAL ON THE REVERSE SIDE.
PLEASE VOTE AND SIGN ON OTHER SIDE
AND RETURN PROMPTLY IN ENCLOSED ENVELOPE.
NOTE: Please sign exactly as name appears on this card. All joint owners should
sign. When signing as executor, administrator, attorney, trustee or guardian or
as custodian for a minor, please give full title as such, if a corporation,
please sign in full corporate name and indicate the signer's office. If a
partner, sign in the partnership name.
1. Approval of the new Sub-Investment Advisory Agreement between Bank
of Oklahoma and AMR Investment Services, Inc. with respect to the Cash
Management Fund.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
Please be sure to sign and date this Proxy.
----------------------------------------
Shareholder sign here
----------------------------------------
Co-owner sign here
Dated:______________, 1997
<PAGE> 13
EXHIBIT A
FORM OF
SUB-INVESTMENT ADVISORY AGREEMENT
AMERICAN PERFORMANCE CASH MANAGEMENT FUND
AGREEMENT executed as of [DATE OF SHAREHOLDER APPROVAL] 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
<PAGE> 14
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;
(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
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<PAGE> 15
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 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
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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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<PAGE> 17
(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
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<PAGE> 18
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.
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 requirements 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,
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<PAGE> 19
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
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
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<PAGE> 20
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:
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Title:
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AMR INVESTMENT SERVICES, INC.
By:
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Title:
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