Exhibit 23(d)
INVESTMENT ADVISORY AND MANAGEMENT SERVICES AGREEMENT
AGREEMENT made as of ___________, 1999 by and between Century
Capital Management Trust, a Massachusetts 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, Inc., a Massachusetts corporation (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 investment objectives, policies
and limitations as provided in the Fund's Prospectus or other governing
instruments, as amended 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 Trust. 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 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, stockholders or otherwise, and
that directors, officers, employees and stockholders 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.
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, which may be increased or
decreased as set forth below. 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) Beginning with the fee paid with respect to the thirteenth full
calendar month of Fund operations, and for each month thereafter, the investment
advisory fee shall be increased or decreased depending on the investment
performance of the Fund relative to the investment record of the Lipper Small
Cap Index (the "Index") for the twelve (12) month period ending immediately
before such month as follows:
Cumulative 12-Month Effective Annualized
Performance of Fund Adjustment to Investment Advisory Fee
Versus the Index Investment Advisory Fee After Adjustment
------------------- ----------------------- -----------------------
Trails Index by more than 2% -0.15% 0.80%
Trails Index by 0 to 2% 0% 0.95%
Exceeds Index by 0 to 2% 0% 0.95%
Exceeds Index by more than 2% +0.15% 1.10%
For purposes of the calculations described above, "investment performance" and
"investment record" will have the meanings set forth in the Investment Advisers
Act of 1940 and the rules and regulations promulgated thereunder.
(c) 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 include an investment performance
adjustment (if applicable) based on the twelve months ending on the date this
Agreement terminates, and 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.
(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.
(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. The Adviser is
hereby expressly put on notice of the limitations of shareholder liability and
Trustee liability, respectively, as set forth in the Trust's Declaration of
Trust or other organizational document and agrees that the obligations assumed
by the Trust pursuant to this Agreement shall be limited in all cases to the
Fund and its assets, and 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 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.
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
By:
-----------------------------------
[Name]
[Title]
CENTURY CAPITAL MANAGEMENT, INC.
By:
-----------------------------------
[Name]
[Title]
