Exhibit (5)(b)
RESTATED ADVISORY AGREEMENT
ADVISORY AGREEMENT made as of this 10th day of August, 1992, by and
between STATE STREET RESEARCH & MANAGEMENT COMPANY, a corporation organized
under the laws of Delaware having its principal place of business in Boston,
Massachusetts (the "Manager"), and STATE STREET CAPITAL TRUST, a Massachusetts
business trust having its principal place of business in Boston, Massachusetts
(the "Trust").
WHEREAS, the Trust is engaged in business as an open-end management
investment company and is registered as such under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Manager is engaged principally in the business of rendering
investment management services and is registered as an investment adviser under
the Investment Advisers Act of 1940, as amended; and
WHEREAS, the Trust is authorized to issue shares of beneficial interest in
separate series with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, on or about November 8, 1988, the Trust established an original
series known as State Street Capital Fund to which this Agreement does not
apply; and
WHEREAS, the Trust subsequently established a second series known as State
Street Research Small Capitalization Growth Fund (formerly State Street Small
Capitalization Growth Fund) ("Second Fund"), together with all other series
established by the Trust after the date of this Agreement with respect to which
the Manager renders management and investment advisory services pursuant to the
terms of this Agreement, being herein collectively referred to as the "Funds"
and individually as a "Fund."
NOW, THEREFORE, WITNESSETH: That it is hereby agreed between the
parties hereto as follows:
1. APPOINTMENT OF MANAGER.
(a) Second Fund. The Trust hereby appoints the Manager to act as
manager and investment adviser to the Second Fund for the period and on
the terms herein set forth. The Manager accepts such appointment and
agrees to render the services herein set forth, for the compensation
herein provided.
(b) Additional Funds. In the event that the Trust establishes
one or more series of shares other than the
Second Fund with respect to which it desires to retain the Manager to
render management and investment advisory services hereunder, it shall so
notify the Manager in writing, indicating the advisory fee to be payable
with respect to the additional series of shares. If the Manager is willing
to render such services, it shall so notify the Trust in writing,
whereupon such series of shares shall become a Fund hereunder. In such
event a writing signed by both the Trust and the Manager shall be annexed
hereto as a part hereof indicating that such additional series of shares
has become a Fund hereunder and reflecting the agreed-upon fee schedule
for such Fund to the extent the provisions of Section 4 shall not apply
with respect thereto.
2. DUTIES OF MANAGER.
The Manager, at its own expense, shall furnish the following
services and facilities to the Trust:
(a) Investment Program. The Manager shall (i) furnish continuously
an investment program for each Fund, (ii) determine (subject to the
overall supervision and review of the Board of Trustees of the Trust) what
investments shall be purchased, held, sold or exchanged by each Fund and
what portion, if any, of the assets of each Fund shall be held uninvested,
and (iii) make changes on behalf of the Trust in the investments of each
Fund. The Manager shall also manage, supervise and conduct the other
affairs and business of the Trust and each Fund thereof and matters
incidental thereto, subject always to the control of the Board of Trustees
of the Trust and to the provisions of the Master Trust Agreement and
By-Laws of the Trust, as amended, and the Prospectuses of the Trust as
from time to time amended and in effect and the 1940 Act. Subject to the
foregoing, the Manager shall have the authority to engage one or more
sub-advisers in connection with the management of the Funds, which
sub-advisers may be affiliates of the Manager.
(b) Regulatory Reports. The Manager shall furnish to the Trust
necessary assistance in:
(i) the preparation of all reports now or hereafter
required by federal or other laws; and
(ii) the preparation of prospectuses, registration statements
and amendments thereto that may be required by federal or other laws
or by the rules or regulations of any duly authorized commission or
administrative body.
(c) Office Space and Facilities. The Manager shall furnish the Trust
office space in the offices of the Manager, or in such other place or
places as may be agreed upon from time to time, and all necessary office
facilities,
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business equipment, supplies, utilities, and telephone service for
managing the affairs and investments of the Trust.
(d) Services of Personnel. The Manager shall provide all necessary
executive and administrative personnel for managing the affairs of the
Trust, including personnel to perform clerical, bookkeeping, accounting
and other office functions. These services are exclusive of the
bookkeeping and accounting services of any dividend disbursing agent,
transfer agent, registrar or custodian. The Manager shall compensate all
personnel, officers and Trustees of the Trust if such persons are also
employees of the Manager or its affiliates.
(e) Fidelity Bond. The Manager shall arrange for providing and
maintaining a bond issued by a reputable insurance company authorized to
do business in the place where the bond is issued against larceny and
embezzlement covering each officer and employee of the Trust and/or the
Manager who may singly or jointly with others have access to funds or
securities of the Trust, with direct or indirect authority to draw upon
such funds or to direct generally the disposition of such funds. The bond
shall be in such reasonable amount as a majority of the Trustees who are
not "interested persons" of the Trust, as defined in the 1940 Act, shall
determine, with due consideration given to the aggregate assets of the
Trust to which any such officer or employee may have access. The premium
for the bond shall be payable by the Trust in accordance with paragraph
3(o).
(f) Portfolio Transactions. The Manager shall place all orders for
the purchase and sale of portfolio securities for the account of each Fund
with brokers or dealers selected by the Manager, although the Trust will
pay the actual brokerage commissions on portfolio transactions in
accordance with paragraph 3(d).
3. ALLOCATION OF EXPENSE.
Except for the services and facilities to be provided by the Manager
as set forth in paragraph 2 above, the Trust assumes and shall pay all
expenses for all other Trust operations and activities and shall reimburse
the Manager for any such expenses incurred by the Manager (it being
understood that the Trust shall allocate such expenses between or among
its Funds to the extent contemplated by its Master Trust Agreement). The
expenses to be borne by the Trust shall include, without limitation:
(a) all expenses of organizing the Trust or forming any Fund
thereof;
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(b) the charges and expenses of any registrar, share transfer or
dividend disbursing agent, shareholder servicing agent, custodian, or
depository appointed by the Trust for the safekeeping of its cash,
portfolio securities and other property, including the costs of servicing
shareholder investment accounts and bookkeeping, accounting and pricing
services;
(c) the charges and expenses of auditors;
(d) brokerage commissions and other costs incurred in connection
with transactions in the portfolio securities of the Trust, including any
portion of such commissions attributable to brokerage and research
services as defined in Section 28(e) of the Exchange Act;
(e) taxes, including issuance and transfer taxes and registration,
filing or other fees payable by the Trust to federal, state or other
governmental agencies;
(f) expenses, including the cost of printing certificates,
relating to the issuance of shares of the Trust;
(g) expenses involved in registering and maintaining registrations
of the Trust and of its shares with the Securities and Exchange Commission
and various states and other jurisdictions, including reimbursement of
actual expenses incurred by the Manager in performing such functions for
the Trust, which may include compensation of persons who are employees of
the Manager, in proportion to the relative time spent on such matters;
(h) expenses related to the redemption of shares of the Trust,
including expenses attributable to any program of periodic redemption;
(i) expenses of shareholders' and Trustees' meetings, including
meetings of committees, and of preparing, printing and mailing proxy
statements, quarterly reports, semiannual reports, annual reports and
other communications to existing shareholders;
(j) expenses of preparing and setting in type prospectuses, and
expenses of printing and mailing the same to existing shareholders (but
not expenses of printing and mailing of prospectuses and literature used
for promotional purposes);
(k) compensation and expenses of Trustees who are not
"interested persons" within the meaning of the 1940 Act;
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(l) expense of maintaining shareholder accounts and furnishing, or
causing to be furnished, to each shareholder a statement of his account,
including the expense of mailing;
(m) charges and expenses of legal counsel in connection with matters
relating to the Trust, including, without limitation, legal services
rendered in connection with the Trust's legal and financial structure and
relations with its shareholders, issuance of shares of the Trust, and
registration and qualification of securities under federal, state and
other laws;
(n) the cost and expense of maintaining the books and records
of the Trust, including general ledger accounting;
(o) insurance premiums on fidelity, errors and omissions and other
coverages including the expense of obtaining and maintaining a fidelity
bond as required by Section 17(g) of the 1940 Act;
(p) interest payable on Trust borrowings; and
(q) such other nonrecurring expenses of the Trust as may arise,
including expenses of actions, suits, or proceedings to which the Trust is
a party and expenses resulting from the legal obligation which the Trust
may have to provide indemnity with respect thereto.
4. ADVISORY FEE.
For the services and facilities to be provided by the Manager as set
forth in paragraph 2 hereof, the Trust agrees that each Fund shall pay to
the Manager a monthly fee as soon as practical after the last day of each
calendar month, which fee shall be paid at a rate equal to seventy-five
one hundredths of one percent (0.75%) on an annual basis of the average
daily net asset value of such Fund for such calendar month, commencing as
of the date on which this Agreement becomes effective with respect to such
Fund.
In the case of commencement or termination of this Agreement with
respect to any Fund during any calendar month, the fee with respect to
such Fund for that month shall be reduced proportionately based upon the
number of calendar days during which this Agreement is in effect with
respect to such Fund, and the fee shall be computed based upon the average
daily net asset value of such Fund during such period.
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5. EXPENSE LIMITATION.
The Manager agrees that if the total expenses of any Fund (exclusive
of interest, taxes, payments to fund certain distribution expenses
pursuant to the Trust's Plan of Distribution Pursuant to Rule 12b-1
applicable to the Fund, if any, brokerage expenses and extraordinary items
such as litigation expenses) for any fiscal year of the Trust exceed the
lowest expense limitation imposed in any jurisdiction in which that Fund
is then making sales of its shares or in which its shares are then
qualified for sale, if any, the Manager will pay or reimburse such Fund
for that excess up to the amount of its advisory fees payable with respect
to that Fund during that fiscal year. The amount of the monthly advisory
fee under paragraph 4 hereof shall be reduced to the extent that the
monthly expenses of that Fund, on an annualized basis, would exceed the
foregoing limitation. At the end of each fiscal year of the Trust, if the
aggregate annual expenses chargeable to any Fund for that year exceed the
foregoing limitation based upon the average of the monthly average net
asset value of that Fund for the year, the Manager will promptly reimburse
that Fund for the amount of such excess to the extent not already
reimbursed by reduction of the monthly advisory fee, but if such expenses
are within the foregoing limitation, any excess amount previously withheld
from the monthly advisory fee during that fiscal year will be promptly
paid over to the Manager.
In the event that this Agreement (i) is terminated with respect to
any one or more Funds as of a date other than the last day of the fiscal
year of the Trust or (ii) commences with respect to one or more Funds as
of a date other than the first day of the fiscal year of the Trust, then
the expenses of such Fund or Funds shall be annualized and the Manager
shall pay to, or receive from, the applicable Fund or Funds a pro rata
portion of the amount that the Manager would have been required to pay or
would have been entitled to receive, if any, had this Agreement been in
effect with respect to such Fund or Funds for the full fiscal year.
6. RELATIONS WITH TRUST.
Subject to and in accordance with the Master Trust Agreement and
By-laws of the Trust and the Certificate of Incorporation and By-laws of
the Manager, it is understood that Trustees, officers, agents and
shareholders of the Trust are or may be interested in the Manager (or any
successor thereof) as directors, officers or otherwise, that directors,
officers, agents and shareholders of the Manager (or any successor
thereof) are or may be interested in the Trust as Trustees, officers,
agents, shareholders or otherwise, that the Manager (or any such successor
thereof) is or may be interested in the Trust as a shareholder or
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otherwise and that the effect of any such adverse interests shall be
governed by said Master Trust Agreement, Certificate of Incorporation and
By-laws.
7. LIABILITY OF MANAGER.
The Manager shall not be liable to the Trust for any error of
judgment or mistake of law or for any loss suffered by the Trust in
connection with the matters to which this Agreement relates; provided,
however, that no provision of this Agreement shall be deemed to protect
the Manager against any liability to the Trust or its shareholders to
which it might otherwise be subject by reason of any willful misfeasance,
bad faith or gross negligence in the performance of its duties or the
reckless disregard of its obligations and duties under this Agreement, nor
shall any provision hereof be deemed to protect any Trustee or officer of
the Trust against any such liability to which he might otherwise be
subject by reason of any willful misfeasance, bad faith or gross
negligence in the performance of his duties or the reckless disregard of
his obligations and duties. 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.
8. DURATION AND TERMINATION OF THIS AGREEMENT.
(a) Duration. This Agreement shall become effective with respect to
the Second Fund on the later of (i) the date on which a Registration
Statement with respect to its shares under the Securities Act of 1933, as
amended, is first declared effective by the Securities and Exchange
Commission or (ii) the date on which such Second Fund commences offering
its shares to the public, and, with respect to any additional Fund, on the
date of receipt by the Trust of notice from the Manager in accordance with
paragraph 1(b) hereof that the Manager is willing to serve as Manager with
respect to such Fund. Unless terminated as herein provided, this Agreement
shall remain in full force and effect with respect to the Second Fund
until the date which is two years after the effective date of this
Agreement, and with respect to each additional Fund, for two years from
the date on which such Fund becomes a Fund hereunder. Subsequent to such
initial periods of effectiveness this Agreement shall continue in full
force and effect, subject to Section 8(c), for successive one-year periods
with respect to each Fund so long as such continuance with respect to such
Fund is approved at least annually (a) by either the Trustees of the Trust
or by vote of a majority of the outstanding voting securities (as defined
in the ▇▇▇▇ ▇▇▇) of such Fund, and (b) in either event, by the vote of a
majority of the Trustees of the Trust who are not parties to this
Agreement or "interested persons" (as defined in the ▇▇▇▇ ▇▇▇) of any
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such party, cast in person at a meeting called for the purpose of voting
on such approval.
(b) Amendment. 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, and no amendments of this
Agreement shall be effective with respect to any Fund until approved by
vote of the holders of a majority of that Fund's outstanding voting
securities (as defined in the 1940 Act).
(c) Termination. This Agreement may be terminated with respect to
any Fund at any time, without payment of any penalty, by vote of the
Trustees or by vote of a majority of the outstanding voting securities (as
defined in the ▇▇▇▇ ▇▇▇) of that Fund, or by the Manager, in each case on
sixty (60) days' prior written notice to the other party.
(d) Automatic Termination. This Agreement shall automatically and
immediately terminate in the event of its assignment (as defined in the
1940 Act).
(e) Approval, Amendment or Termination by Individual Fund. Any
approval, amendment or termination of this Agreement shall be effective to
continue, amend or terminate this Agreement with respect to such Fund
notwithstanding (i) that such action has not been approved by the holders
of a majority of the outstanding voting securities of any other Fund
affected thereby, and (ii) that such action has not been approved by the
vote of a majority of the outstanding voting securities of the Trust,
unless such action shall be required by any applicable law or otherwise.
9. SERVICES NOT EXCLUSIVE.
The services of the Manager to the Trust hereunder are not to be
deemed exclusive, and the Manager shall be free to render similar services
to others so long as its services hereunder are not impaired thereby.
10. NAME OF TRUST.
It is understood that the name "State Street" and any logos
associated with that name are the valuable property of State Street
Research & Management Company, the Manager, and that the Trust has the
right to include such name as a part of its name and the names of its
Funds only so long as this Agreement shall continue. Upon termination of
this Agreement the Trust shall forthwith cease to use the State Street
name and logos.
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11. PRIOR AGREEMENTS SUPERSEDED.
This Agreement supersedes any prior agreement relating to the
subject matter hereof between the parties hereto.
12. NOTICES.
Notices under this Agreement shall be in writing and shall be
addressed, and delivered or mailed postage prepaid, to the other party at
such address as such other party may designate from time to time for the
receipt of such notices. Until further notice to the other party, the
address of each party to this Agreement for this purpose shall be ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
13. GOVERNING LAW; COUNTERPARTS.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original,
but such counterparts shall, together, constitute only one instrument.
14. LIMITATION OF LIABILITY.
The term "State Street Capital Trust" means and refers to the
Trustees from time to time serving under the First Amended and Restated
Master Trust Agreement ("Master Trust Agreement") of the Trust dated
February 5, 1993 as the same may subsequently hereto have been, or
subsequently hereto may be, amended. It is expressly agreed that the
obligations of the Trust hereunder shall not be binding upon any of the
Trustees, shareholders, nominees, officers, agents or employees of the
Trust as individuals or personally, but shall bind only the trust property
of the Trust, as provided in the Master Trust Agreement of the Trust. The
execution and delivery of this Agreement have been authorized by the
Trustees of the Trust and signed by a duly authorized officer of the
Trust, acting as such, and neither such authorization nor such execution
and delivery shall be deemed to have been made individually or to impose
any personal liability, but shall bind only the trust property of the
Trust as provided in its Master Trust Agreement. The Master Trust
Agreement of the Trust provides, and it is expressly agreed, that each
Fund of the Trust shall be solely and exclusively responsible for the
payment of its debts, liabilities and obligations, and that no other Fund
shall be responsible for the same.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
STATE STREET RESEARCH & STATE STREET CAPITAL TRUST
MANAGEMENT COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
President Secretary
Restated as of: June 28, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CAPITAL TRUST
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
February 1, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
Management Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Gentlemen:
This letter is to confirm to you that State Street Research Capital Trust
(the "Trust") has created a new series of shares to be known as State Street
Research Small Capitalization Value Fund (the "Fund") and that pursuant to
Section 1(b) of the Advisory Agreement dated as of August 10, 1992 (the
"Agreement"), the Trust desires to retain you to render management and
investment advisory services under the Agreement to the Fund as a "Series"
thereunder for a fee equal to 0.85% on an annual basis of the average daily net
asset value of the Fund. Nothing in the Agreement shall be construed as
requiring that the initial public shareholders of the Fund approve of the
Agreement in respect of the Fund. Notwithstanding paragraph 8(b) of the
Agreement, no shareholder vote shall be required for any amendments to the
Agreement for which the Securities and Exchange Commission has indicated that no
shareholder vote is necessary, as for example, in the case of a decrease in the
advisory fee under the Agreement.
Please indicate your acceptance of this responsibility in accordance with
the terms of the Agreement by signing this letter as indicated below.
The term "State Street Research Capital Trust" means and refers to the
Trustees from time to time serving under the First Amended and Restated Master
Trust Agreement dated February 5, 1993 ("Master Trust Agreement"), as the same
may subsequently thereto have been, or subsequently hereto may be, amended. It
is expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents or
employees of the Trust as individuals or personally, but shall bind only the
trust property of the Trust, as provided in the Master Trust Agreement of the
Trust. The execution and delivery of this Agreement have been authorized by the
Trustees of the Trust and signed by a duly
authorized officer of the Trust, acting as such, and neither such authorization
nor such execution and delivery shall be deemed to have been made individually
or to impose any personal liability, but shall bind only the trust property of
the Trust as provided in its Master Trust Agreement. The Master Trust Agreement
of the Trust provides, and it is expressly agreed, that each Fund of the Trust
shall be solely and exclusively responsible for the payment of its debts,
liabilities and obligations, and that no other fund shall be responsible for the
same.
STATE STREET RESEARCH CAPITAL TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
ACCEPTED AND AGREED TO:
STATE STREET RESEARCH &
MANAGEMENT COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇