EXHIBIT 23(d)
INVESTMENT ADVISORY AND MANAGEMENT SERVICES AGREEMENT
AGREEMENT made as of July 1, 1994 by and between Century Shares Trust,
a Massachusetts trust (the "Trust") 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 Trust, 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 Trust and shall, subject to the supervision of the
Trustees, invest and reinvest the Trust's property and otherwise direct the
investments of the Trust in accordance with the investment objectives, policies
and limitations as provided in the Trust's Declaration of Trust, 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 Trust may impose by notice in
writing to the Adviser. The Adviser is authorized, in its discretion and without
prior consultation with the Trust, (i) 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 Trust and (ii) to
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. The investment policies and
all other actions of the Trust are and shall at all times be subject to the
control and direction of the Trustees. The Adviser shall furnish such reports,
evaluations, information or analyses regarding investment advisory matters to
the Trust 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 Trust and shall carry out such policies as are adopted
by 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 Trust, including but not limited to:
(i) providing the Trust with office space, equipment and facilities; (ii) on
behalf of the Trust, 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 Trust's existence and its records;
and (vi) during such times as shares are publicly offered, maintaining the
registration and qualification of the Trust's shares under federal and state
securities laws.
(c) Other Services and Undertakings. The Adviser shall furnish such
other services as the Adviser shall from time to time determine to be necessary
or useful to perform its obligations under this Agreement. The Adviser shall
furnish for the use of the Trust office space and all necessary office
facilities, equipment and personnel for servicing the investments of the Trust.
The Adviser shall pay the salaries of all officers (if any) of the Trust, of all
Trustees who are employees of the Adviser and of all personnel of the Trust (if
any) or the Adviser performing services relating to research, statistical and
investment activities for the Trust. The Adviser shall make all payments coming
due to Xxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxx, Xx. during the term of this
Agreement as supplemental payments after termination of employment by the Trust
or the Adviser as a result of early or normal retirement, death or disability
pursuant to undertakings of the Trust established by votes of the Trustees
passed on December 10, 1990.
2. Interested Persons. Status. It is understood that the Trustees,
officers, employees and shareholders of the Trust 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 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. For the services to be performed hereunder, the
Adviser shall receive a fee, payable in arrears as soon as practicable following
the last day of each month, equal to seven-tenths of one percent (0.7%) of the
first $250 million, and six-tenths of one percent (0.6%) of amounts exceeding
$250 million, of the net asset value of the Trust at the end of such month. The
Adviser in its sole discretion shall retain the right at any time to forego and
waive any monthly fee or part thereof.
4. Trust Expenses.
(a) General Expenses. It is understood that the Trust 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 Trust 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 Trust, the Adviser, related persons or independent parties;
(vii) fees and expenses related to the registration and qualification of the
Trust and the Trust'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 Trust; (ix) all other expenses
incidental to holding meetings of, or soliciting consents from, the Trust'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 Trust's membership in any industry association or other
investment organization; (xii) expenses of printing and mailing Prospectuses and
Statements of Additional Information and supplements thereto; and (xiii) such
non-recurring or extraordinary expenses as may arise, including those relating
to actions, suits or proceedings to which the Trust is a party and the legal
obligation which the Trust may have to indemnify the Trust's officers and the
Trustees with respect thereto.
(b) Transfer Agent and Shareholder Services Functions. Personnel of the
Adviser may assist the Trust in performing transfer agent and shareholder
services functions with respect to shares of the Trust. In this event, such
personnel would remain employees of the Adviser, and the Trust 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 would not constitute any part of, and would be paid in
addition to, the Adviser's fee provided for in paragraph 3 above.
(c) Financial, Accounting, Administrative and Clerical Services.
Personnel of the Adviser may assist the Trust in performing financial,
accounting, administrative and clerical services. In this event, such personnel
would remain employees of the Adviser, and the Trust 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 would not
constitute any part of, and would be paid in addition to, the Adviser's fee
provided for in paragraph 3 above.
5. Expense Limitation. The Adviser's fee provided for in paragraph 3
above will be reduced by, or the Adviser will reimburse the Trust for, any
amount necessary to prevent the aggregate expenses of the Trust provided for in
paragraphs 3 and 4 (exclusive of taxes, interest, brokerage commissions,
extraordinary expenses and other expressly excludable items) from exceeding the
most restrictive of the expense limitations imposed by state securities
commissions of the states in which the Trust's shares are then registered or
qualified for sale. To determine the Adviser's liability for such excess
expenses, the Trust's expenses shall be annualized at each month end, and if
such annualized expense amount exceeds an effective state expense limit, the
Adviser's fee for such month shall be reduced by, or the Adviser will reimburse
the Trust for, the amount of the excess; provided, however, that an adjustment
shall be made in favor of the Adviser prior to the end of the last day of the
first month of the next succeeding fiscal year if the aggregate expenses for the
fiscal year do not exceed any state expense limitation.
6. Non-Exclusivity. The services of the Adviser to the Trust are not to
be deemed exclusive, the Adviser being free to render services to others and
engage in other activities; provided, however, that the Adviser will not
undertake any other conflicting duties of loyalty which would affect its prior
fiduciary duty to the Trust. For a period of five years from the effective date
of this Agreement, the Adviser will give the Trust advance notice in writing of
any proposed undertaking by it of material significance (including the taking on
of any new clients) and will provide to the Trust all information relevant to a
determination of the effect of such undertaking on the Adviser's ability to
carry out its obligations to the Trust under this Agreement.
7. Permitted Uses.
(a) The Trust and the Adviser each agree that the word "Century" as
used in the name of the Trust is a property right of the Trust. The Trust hereby
grants to the Adviser the right to use the word "Century" in its corporate name
and in performing its duties hereunder. The Adviser agrees that upon termination
of this Agreement and at the written request of the Trust, the Adviser will take
all action necessary to change its corporate name to eliminate the word
"Century" or otherwise develop a method to assure that any continuing
affiliation between the Adviser and the Trust could not reasonably be inferred
by a third party.
(b) All books, records, databases (whether stored in printed,
electronic or other form), publications, other library materials and other
property (whether tangible or intangible) owned or in the possession of the
Trust or the Trustees for the benefit of the Trust as of the date hereof shall
be available for the use of the Adviser, and the Trust and the Trustees hereby
grant to the Adviser permission to use any or all such property during the term
of this Agreement.
8. Term.
(a) Subject to prior termination as provided in sub-paragraph (d) of
this paragraph 9, this Agreement shall continue in force through June 30, 1996
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 Trust.
(b) This Agreement may be modified by mutual consent, such consent on
the part of the Trust to be authorized by vote of a majority of the outstanding
voting securities of the Trust.
(c) In addition to the requirements of sub-paragraphs (a) and (b) of
this paragraph 8, 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 Trust (in the case of the Trust) or by action of the
Board of Directors (in the case of the Adviser). This Agreement shall terminate
automatically in the event of its assignment.
9. Limitation of Liability of Trustees and Shareholders. Pursuant to
Section 2(l) of the Declaration of Trust of Century Shares Trust, the Adviser is
hereby expressly put on notice that the Trustees are not liable under this
Agreement except for the application of the trust property in accordance with
such Declaration of Trust, and no liability attaches to the shareholders of the
Trust.
10. 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 Trust or to any shareholder of the Trust 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.
11. 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, as now in effect
or as hereafter amended, and subject to such orders as may be granted by the
Securities and Exchange Commission.
12. 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, all as
of the date written above.
CENTURY SHARES TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Trustee
By: /s/ Xxxxxxx X. Xxxx, Xx.
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Xxxxxxx X. Xxxx, Xx., Trustee
CENTURY CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, President
