Exhibit 23(d)(1)
INVESTMENT ADVISORY AND MANAGEMENT SERVICES AGREEMENT
AGREEMENT made as of this 29th day of January, 2004 by and between
Century Capital Management Trust, a Massachusetts business trust that may issue
one or more series of shares of beneficial interest (the "Trust"), on behalf of
Century Small Cap Select Fund, a series of the Trust (the "Fund"), and Century
Capital Management, LLC, a Delaware limited liability company (the "Adviser").
RECITALS
WHEREAS, the Trustees of the Trust (the "Trustees") desire to employ an
investment adviser and management services provider for the Fund, and the
Adviser desires to be so employed;
NOW THEREFORE, the parties hereto intending to be legally bound hereby
agree as follows:
1. Services Undertaken By Adviser.
(a) Investment Advisory Services. The Adviser undertakes to
act as investment adviser to the Fund and shall, subject to the
supervision of the Trustees, invest and reinvest the Fund's property
and otherwise direct the investments of the Fund in accordance with the
Fund's investment objectives, policies and limitations as provided in
the Trust's registration statement filed on Form N-1A or other
governing instruments, as amended or supplemented from time to time,
the Investment Company Act of 1940 and rules thereunder, as amended
from time to time (the "1940 Act"), and such other limitations as the
Fund may impose by notice in writing to the Adviser. The Adviser shall
furnish for the use of the Fund office space and all necessary office
facilities, equipment and personnel for servicing the investments of
the Fund; and the Adviser shall pay the salaries and fees of all
officers (if any) of the Fund who are simultaneously employees of the
Adviser, of all Trustees who are simultaneously employees of the
Adviser and of all personnel of the Fund (if any) or the Adviser
performing services relating to research, statistical and investment
activities. The Adviser is authorized, in its discretion and without
prior consultation with the Fund to buy, sell, exchange, convert, lend
and otherwise trade in any stocks, bonds, convertible instruments, and
other securities, assets and investment instruments on behalf of the
Fund, or to hold assets uninvested in cash. The investment policies and
all other actions of the Fund are and shall at all times be subject to
the control and direction of the Trustees.
(b) Management Services. The Adviser shall perform (or arrange
for the performance of) the management and administrative services
necessary for the operation of the Fund. The Adviser shall, subject to
the supervision of the Trustees, perform various services for the Fund,
including but not limited to: (i) providing the Fund with office space,
equipment and facilities (which may be its own) for maintaining its
organization; (ii) on behalf of the Fund, supervising relations with,
and monitoring the performance of, custodians, depositories, pricing
agents, transfer agents, accountants, attorneys, underwriters, brokers
and dealers, insurers and other persons in any capacity
deemed to be necessary or desirable; (iii) preparing all general
shareholder communications, including shareholder reports; (iv)
conducting shareholder relations; (v) maintaining the Fund's existence
and its records; and (vi) during such times as shares are publicly
offered, maintaining the registration and qualification of the Fund's
shares under applicable federal and state securities laws.
(c) Other Services and Undertakings. The Adviser shall furnish
such reports, evaluations, information or analyses to the Fund as the
Trustees may request from time to time or as the Adviser may deem to be
desirable. The Adviser shall make recommendations to the Trustees as to
policies regarding the Fund and shall carry out such policies as are
adopted by the Trustees. The Adviser shall, subject to review by the
Trustees, furnish such other services as the Adviser shall from time to
time determine to be necessary or desirable.
(d) Brokerage. The Adviser shall place orders and negotiate
the commissions (if any) for the execution of transactions in
securities with or through such brokers, dealers, underwriters, agents,
issuers or others as the Adviser may select, which may (subject to
applicable requirements of the 0000 Xxx) include brokers or dealers
affiliated with the Adviser. The Adviser shall use its best efforts to
seek to execute Fund transactions at prices that are advantageous to
the Fund and at commission rates that are reasonable in relation to the
benefits received. In selecting brokers or dealers qualified to execute
a particular transaction, brokers or dealers may be selected who also
provide brokerage and research services (as those terms are defined in
Section 28(e) of the Securities Exchange Act of 1934) to the Fund
and/or the other accounts over which the Adviser or its affiliates
exercise investment discretion. The Adviser is authorized to pay a
broker or dealer who provides such brokerage and research services a
commission for executing a portfolio transaction for the Fund that is
in excess of the amount of commission another broker or dealer would
have charged for effecting that transaction if the Adviser determines
in good faith that such amount of commission is reasonable in relation
to the value of the brokerage and research services provided by such
broker or dealer. This determination may be viewed in terms of either
that particular transaction or the overall responsibilities that the
Adviser and its affiliates have with respect to accounts over which
they exercise investment discretion. The Trustees may periodically
review the commissions paid by the Fund to determine if the commissions
paid over representative periods of time were reasonable in relation to
the benefits to the Fund.
2. Interested Persons; Status. It is understood that Trustees,
officers, employees and shareholders of the Fund are or may become interested in
the Adviser as directors, officers, employees, managers, members or otherwise,
and that directors, officers, employees, managers or members of the Adviser are
or may become similarly interested in the Trust, and that the Adviser may be or
become interested in the Trust as a shareholder or otherwise. In acting
hereunder, the Adviser shall be an independent contractor. The Adviser shall not
be an agent of the Trust.
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3. Compensation.
(a) For the services to be performed hereunder, the Adviser
shall receive an investment advisory fee (the "Investment Advisory
Fee") at an annual rate of 0.95% of the net asset value of the Fund.
The Investment Advisory Fee shall be paid to the Adviser in arrears as
soon as practicable following the last business day of each calendar
month. The initial fee payment under this Agreement shall be made as
soon as practicable following the last business day of the calendar
month in which falls the effective date of this Agreement and shall be
prorated as set forth below.
(b) The fee to the Adviser shall be prorated for the portion
of any calendar month in which this Agreement is in effect that is not
a complete month according to the proportion that the number of
calendar days in the month during which the Agreement is in effect
bears to the number of calendar days in the month. The final payment
hereunder shall be payable within ten (10) days after the date of
termination. The Adviser in its sole discretion shall retain the right
at any time to forego and waive any monthly fee or part thereof.
4. Fund Expenses.
(a) General Expenses. It is understood that the Fund will pay
all its expenses other than those expressly stated to be payable by the
Adviser under Section 1 above, which expenses payable by the Fund shall
include, without limitation, (i) interest and taxes; (ii) brokerage
commissions and other costs in connection with the purchase or sale of
securities and other investment instruments; (iii) fees and expenses of
the Trustees other than those who are employees of the Adviser; (iv)
legal and audit expenses; (v) custodian, accounting services and
registrar fees and expenses; (vi) fees, expenses and costs related to
transfer agent and shareholder services functions, whether performed by
the Fund, the Adviser, related persons or independent parties; (vii)
fees and expenses related to the registration and qualification of the
Trust and the Fund's shares for distribution under state and federal
securities laws; (viii) expenses of printing and mailing reports and
notices and proxy material (if any) to shareholders of the Fund; (ix)
all other expenses incidental to holding meetings of, or soliciting
consents from, the Fund's shareholders (if and whenever required),
including proxy solicitations therefor; (x) all expenses of bond,
liability, fidelity and other insurance coverage required by law or
deemed advisable by the Trustees; (xi) any fees, dues, or expenses
related to the Fund's membership in any industry association or other
investment organization; (xii) expenses of preparing, printing and
mailing Prospectuses and Statements of Additional Information and
supplements thereto; (xiii) expenses incurred pursuant to the Fund's
Distribution and Service Plan; and (xiv) such non-recurring or
extraordinary expenses as may arise, including those relating to
actions, suits or proceedings to which the Fund is a party and the
legal obligation which the Fund may have to indemnify the Fund's
officers and the Trustees with respect thereto. The Fund shall
reimburse the Adviser, on demand, for any of such expenses that are
borne by it, the amount of which shall not constitute any part of, and
shall be paid in addition to, the Investment Advisory Fee.
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(b) Transfer Agent and Shareholder Services Functions.
Personnel of the Adviser may assist the Fund in performing transfer
agent and shareholder Services functions with respect to shares of the
Fund. In this event, such personnel would remain employees of the
Adviser, and the Fund would reimburse the Adviser, on demand, for an
amount of salary, payroll tax and personnel benefit payments made by
the Adviser proportionate to the level of transfer agent and
shareholder services functions performed by such personnel. The amount
of such reimbursement shall not constitute any part of, and shall be
paid in addition to, the Investment Advisory Fee.
(c) Financial, Accounting, Administrative and Clerical
Services. Personnel of the Adviser may assist the Fund in performing
financial, accounting, administrative and clerical services. In this
event, such personnel would remain employees of the Adviser, and the
Fund would reimburse the Adviser, on demand, for an amount of salary,
payroll tax and personnel benefit payments made by the Adviser
proportionate to the level of such services performed by such
personnel. The amount of such reimbursement shall not constitute any
part of, and shall be paid in addition to, the Investment Advisory Fee.
5. Non-Exclusivity. The services of the Adviser to the Fund are not to
be deemed exclusive, the Adviser being free to render services to others and
engage in other activities; provided, however, that such other services and
activities do not interfere, in a material manner, with the Adviser's ability to
meet all of its obligations hereunder.
6. Permitted Uses. The Trust acknowledges that the word "Century" as
used in the name of the Trust and the Fund is a property right the use of which
is licensed to the Adviser by a third party. The Adviser hereby grants to the
Trust and the Fund the right to use the word "Century" in their corporate names.
The Trust agrees that, at the written request of the Adviser, the Trust will
take or cause to be taken all action necessary to change its and the Fund's
respective corporate names to eliminate the word "Century".
7. Term.
(a) Subject to prior termination as provided in sub-paragraph
(d) of this paragraph 7, this Agreement shall continue in force through
the date that is two years after the date of this Agreement and
indefinitely thereafter, but only so long as the continuance after such
date shall be specifically approved at least annually by vote of the
Trustees or by vote of a majority of the outstanding voting securities
of the Fund.
(b) This Agreement may be modified by mutual consent, subject
to the provisions of Section 15 of the 1940 Act, as modified by or
interpreted by any applicable order or orders of the Securities and
Exchange Commission (the "Commission"), or any rules or regulations
adopted by, or interpretative releases of, the Commission.
(c) In addition to the requirements of sub-paragraphs (a) and
(b) of this paragraph 7, the terms of any continuance or modification
of this Agreement must have been approved by the vote of a majority of
those Trustees who are not parties to the Agreement or interested
persons of any such party, cast in person at a meeting called for the
purpose of voting on such approval.
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(d) Either party hereto may at any time on sixty (60) days'
prior written notice to the other, terminate this Agreement without
payment of any penalty by action of the Trustees or vote of a majority
of the outstanding voting securities of the Fund (in the case of the
Fund) or by action of the Board of Directors of the Adviser (in the
case of the Adviser). This Agreement shall terminate automatically in
the event of its assignment.
8. Limitation of Liability of Trustees and Shareholders. A copy of the
Trust's Agreement and Declaration of Trust is on file with the Secretary of The
Commonwealth of Massachusetts, and notice is hereby given that this instrument
is executed on behalf of the Trustees of the Trust as Trustees and not
individually and that the obligations of this instrument are not binding upon
any of the Trustees or shareholders individually but are binding only upon the
assets and property of the Fund. The Adviser shall not seek satisfaction of any
such obligation from the shareholders or any shareholder of the Fund, from any
other series of the Trust or from the Trustees or any individual Trustee. The
Adviser understands that the rights and obligations of any series under the
Agreement and Declaration of Trust or other organizational document are separate
and distinct from those of any and all other series.
9. Limitation of Liability of Adviser. In the absence of willful
misfeasance, bad faith, gross negligence or reckless disregard of its
obligations or duties hereunder on the part of the Adviser, the Adviser shall
not be subject to liability to the Fund or to any shareholder of the Fund or to
any other person for any act or omission or any mistake in judgment in the
course of, or connected with, rendering services hereunder or for any losses
that may be sustained in the purchase, holding or sale of any security or other
investment instrument.
10. Definitions. The terms "vote of a majority of the outstanding
voting securities," "assignment," and "interested persons," when used herein,
shall have the respective meanings specified in the 1940 Act and rules
thereunder, as now in effect or as hereafter amended, and subject to such orders
as may be granted by the Commission.
11. Miscellaneous.
(a) This Agreement represents the entire understanding and
agreement between the parties and shall not be modified or amended
except by an instrument in writing signed by the parties.
(b) This Agreement shall be governed by and construed and
enforced in accordance with the laws of The Commonwealth of
Massachusetts.
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IN WITNESS WHEREOF the parties have caused this instrument to be signed
in their behalf by their respective officers thereunto duly authorized, and
their respective seals to be hereunto affixed, all as of the date written above.
CENTURY CAPITAL MANAGEMENT TRUST, on
behalf of its CENTURY SMALL CAP
SELECT FUND series
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title:
CENTURY CAPITAL MANAGEMENT, LLC
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Managing Director
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