EXHIBIT 99(h)(3)
CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of this [ ] day of December, 1998,
between Centurion Funds, Inc. (the "Fund"), a Maryland corporation, and Xxxxxxx
Xxxxx Xxxxxx Inc., a Delaware corporation (the "Consultant"), acting through its
Consulting Services Division.
R E C I T A L S:
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WHEREAS, the Company is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Company is currently comprised of four series, the
Centurion U.S. Equity Fund, Centurion International Equity Fund, Centurion U.S.
Protection Fund and Centurion International Protection Fund (collectively, the
"Funds"); and
WHEREAS, the Company, on behalf of each Fund, wishes to obtain certain
services of the Consultant as more particularly described below, and the
Consultant is willing to provide such services on the terms and for the
consideration set forth below; and
WHEREAS, the Company and the Consultant intend for the consulting
services to be provided under this Agreement to be limited such that the
Consultant will not be treated as an "investment adviser" of the Company or any
Fund under the 1940 Act.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, it is hereby agreed as follows:
SECTION 1. Appointment. The Company hereby appoints the Consultant
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and the Consultant hereby agrees to serve the Company in the capacity described
herein and for the compensation set forth below.
SECTION 2. Services.
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(a) For the period and on the terms and conditions of this Agreement,
the Consultant agrees to provide the Company, at such reasonable times as the
latter may request, with (i) certain statistical and other factual information,
and (ii) advice regarding economic factors and trends (the "Consulting
Services"). The Company shall not request and the Consultant shall not provide
any advice or make any recommendations regarding the purchase or sale of
securities on behalf of the Funds, or provide any other services to the Company,
that would cause the Consultant to be an "investment adviser" within the
meaning of that term not entitled to rely on exclusions from the term, as used
in the 1940 Act.
(b) The Consultant shall perform faithfully and efficiently to the
best of its ability the responsibilities and duties assigned to it under this
Agreement to the satisfaction of the Company and shall in all respects conform
to and comply with the directions and instructions given to it by the Company.
SECTION 3. Relationship; Authority.
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(a) The Consultant shall be an independent contractor and not an
employee, officer or agent of the Company within the meaning of all applicable
federal, state and local laws and regulations.
(b) The Consultant shall have no authority or discretion whatsoever to
make commitments or enter into contracts on behalf of, bind or otherwise
obligate the Company, its employees, officers or agents in any manner
whatsoever.
SECTION 4. Fees.
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(a) In consideration for and as compensation for all Consulting
Services provided under this Agreement, the Company agrees to pay the Consultant
a quarterly fee at an annual rate equal to .05% of the average daily nets assets
of each Fund ("Consulting Fee").
(b) The Consultant shall be reimbursed for reasonable out-of-pocket
expenses incurred related to the Consultant's attendance at meetings requested
by the Company's Board of Directors ("Consulting Expenses"); provided, however,
that such expenses shall not exceed $1,000 per month without the prior written
approval of an officer of the Company. Expenses shall be reimbursed within
thirty (30) days following receipt by the Company of expense reports with
accompanying supporting documentation in detail reasonably acceptable to the
Company.
(c) Except as expressly provided herein, the Consultant shall not be
entitled to receive any other compensation or benefits from the Company. The
Company may withhold from any amounts payable to the Consultant under this
Agreement such federal, state or local taxes or other amounts as shall be
required to be withheld pursuant to any applicable law or regulation.
SECTION 5. Confidential Information. Each party hereto agrees to
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hold in a fiduciary capacity for the benefit of the other and not to disclose to
third parties, other than as expressly authorized in order to perform this
Agreement or as required by law or judicial process, all confidential
information, knowledge or data which it or any of its affiliates obtained during
the term of this Agreement and which is not
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public knowledge or which becomes public knowledge solely by its actions in
violation of this Agreement. After termination of this Agreement, neither party
shall, without the prior written consent of the other, communicate or divulge
any such confidential information, knowledge or data to anyone other than the
other party and those designated by the other party.
SECTION 6. Right to Engage in Other Activities. The Consulting
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Services provided by the Consultant under this Agreement are not exclusive. The
Company understands that the Consultant may act in the future in a similar
capacity with other investment companies, entities or individuals, and the
Company has no objection to the Consultant so acting. The Company understands
that the persons employed by the Consultant to assist in the performance of the
Consulting Services hereunder will not devote their full time to such service
and nothing contained herein shall be deemed to limit or restrict the right of
the Consultant or any of its affiliates to engage in and devote time and
attention to other businesses or to render services of whatever kind or nature.
SECTION 7. Term.
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(a) Either party may terminate this Agreement at any time and for any
reason by giving not less than thirty (30) calendar days' written notice to the
other party.
(b) Any termination of this Agreement in accordance with the
provisions hereunder shall be without penalty or liability to the other party,
and neither party shall have any further obligations under this Agreement
thereafter, except: (i) the Company shall pay the Consultant any unpaid
Consulting Fee earned and accrued through the date of termination; (ii) the
Company shall reimburse the Consultant for reasonable Consulting Expenses
incurred prior to the date of termination; and (iii) as otherwise provided in
Section 5 of this Agreement.
(c) The Consultant shall not be entitled to any other payments upon
termination of this Agreement.
SECTION 8. Representations and Warranties. Each party hereto
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represents and warrants to the other that:
(a) It is duly organized, validly existing and in good standing under
the laws of its state of organization and has full power and authority to enter
into this Agreement;
(b) It will not, by entering into this Agreement, breach or cause to
be breached any undertaking, agreement, contract, statute, rule or regulation to
which it is a party or by which it is bound; and
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(c) This Agreement has been duly and validly authorized, executed and
delivered and is a valid and binding agreement enforceable in accordance with
its terms.
SECTION 9. Disputes; Arbitration.
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(a) The parties shall use their best efforts to resolve any disputes
between them within a thirty (30) day period, and with respect to any disputed
amount of payment due hereunder, payment in full of such amount within ninety
(90) days shall be deemed to satisfactorily resolve such dispute.
(b) The parties hereto expressly agree that arbitration shall be the
sole and exclusive means of determining any controversy or question arising
under this Agreement which shall not have been determined to the satisfaction of
the party (or his legal representatives) considering arbitration. Such
arbitration shall be conducted in Phoenix, Arizona pursuant to the rules of the
American Arbitration Association ("AAA") before a panel of at least three (3)
arbitrators. Each party shall select one arbitrator and the two arbitrators so
selected shall select the third arbitrator; provided that if the two arbitrators
so selected are unable to agree on the third arbitrator within fifteen (15)
calendar days after the date of their appointment, the third arbitrator shall be
selected by the AAA in accordance with its rules. The written decision of a
majority of said arbitrators shall be binding, final and conclusive upon the
parties, and judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction, upon application of any party thereto.
SECTION 10. Miscellaneous.
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(a) This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter hereof, and no representation, promise,
inducement or statement of intention relating to the relationship contemplated
by this Agreement has been made by either party which is not set forth in this
Agreement.
(b) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same agreement.
(c) This Agreement may not be assigned, transferred, sold or in any
manner hypothecated or pledged by either party without the written consent of
the other party.
(d) This Agreement, including any exhibits that may be attached
hereto, may be amended, superseded, canceled, renewed or extended, and the terms
hereof may be waived, only by a written instrument signed by the parties or, in
the case of a waiver, by the party waiving compliance.
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(e) In the event that any term or condition contained in this
Agreement shall for any reason be held by a court of competent jurisdiction to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other term or condition of this
Agreement, but this Agreement shall be construed as if such invalid or illegal
or unenforceable term or condition had never been contained herein.
(f) All notices, demands, requests or other communications required or
permitted under this Agreement shall be in writing and delivered personally,
sent by facsimile transmission or sent by registered, certified or express mail,
postage prepaid, to the addresses below or to such other addresses as may be
designated by the party entitled to receive the same by notice similarly given:
If to the Company:
CENTURION FUNDS, INC.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Xx.
If to the Consultant:
XXXXXXX XXXXX XXXXXX INC.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
(g) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Arizona without giving effect to the
conflicts of laws principles thereof. In interpreting the provisions of this
Agreement, no presumption shall attach against the party responsible for
preparing and drafting this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the day and year first above written.
CENTURION FUNDS, INC.
By: _____________________________
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
XXXXXXX XXXXX XXXXXX INC.
By: _____________________________
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
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