EXHIBIT (d)(xxii)
SHORT DURATION BOND FUND
OF
THE ENTERPRISE GROUP OF FUNDS, INC.
FUND MANAGER'S AGREEMENT
THIS AGREEMENT, made this 29th day of November, 2002, is among The
Enterprise Group of Funds, Inc., a Maryland corporation (the "Fund"), Enterprise
- Capital Management, Inc., a Georgia corporation (hereinafter referred to as
the "Adviser"), and MONY Capital Management, Inc., a Delaware corporation
(hereinafter referred to as the "Fund Manager").
BACKGROUND INFORMATION
(A) The Adviser has entered into an Investment Adviser's Agreement with
the Fund ("Investment Adviser's Agreement"). Pursuant to the Investment
Adviser's Agreement, the Adviser has agreed to render investment advisory and
certain other management services to all of the funds of the Fund, and the Fund
has agreed to employ the Adviser to render such services and to pay to the
Adviser certain fees therefore. The Investment Adviser's Agreement recognizes
that the Adviser may enter into agreements with other investment advisers who
will serve as Fund Managers to the funds.
(B) The parties hereto wish to enter into an agreement whereby the Fund
Manager will provide to the Short Duration Bond Fund, a series of the Fund (the
"Short Duration Bond Fund"), securities investment advisory services for the
Short Duration Bond Fund.
WITNESSETH THAT:
In consideration of the mutual covenants herein contained, the Fund, the
Adviser and the Fund Manager agree as follows:
(1) The Fund and the Adviser hereby employ the Fund Manager to
render certain investment advisory services to the Short Duration Bond
Fund, as set forth herein. The Fund Manager hereby accepts such
employment and agrees to perform such services on the terms herein set
forth, and for the compensation herein provided.
(2) The Fund Manager shall furnish the Short Duration Bond Fund
advice with respect to the investment and reinvestment of the assets of
the Short Duration Bond Fund, or such portion of the assets of the Short
Duration Bond Fund as the Adviser shall specify from time to time, in
accordance with the investment objectives, restrictions and limitations
of the Short Duration Bond Fund which are in the Fund's most recent
Registration Statement.
(3) The Fund Manager shall perform a monthly reconciliation of
the Short Duration Bond Fund to the holdings report provided by the
Fund's custodian and bring any material or significant variances
regarding holdings or valuations to the attention of the Adviser.
(4) The Fund Manager shall maintain all books and records with
respect to the Short Duration Bond Fund's portfolio transactions required
by subparagraphs (b)(5), (6), (7), (9), (10) and (11) and paragraph (f)
of Rule 31a-1 under the Investment Company Act of 1940 ("xxx 0000 Xxx")
and shall render to the Fund's Board of Directors such periodic and
special reports as the Fund's
Board of Directors may reasonably request. The Fund Manager shall timely
furnish to the Adviser all information relating to the Fund Manager's
services under this Agreement needed by the Adviser to keep the other
books and records of the Short Duration Bond Fund required by Rule 31a-1
under the 1940 Act. The Fund Manager agrees that all records that it
maintains on behalf of the Short Duration Bond Fund are property of the
Short Duration Bond Fund and the Fund Manager will surrender promptly to
the Short Duration Bond Fund any of such records upon the Short Duration
Bond Fund's request; provided, however, that the Fund Manager may retain
a copy of such records. The Fund Manager further agrees to preserve for
the periods prescribed by Rule 31a-2 under the 1940 Act any such records
as are required to be maintained by it pursuant to this Agreement. The
Fund Manager shall perform a monthly reconciliation of the Short Duration
Bond Fund to the holdings report provided by the Fund's custodian and
bring any material or significant variances regarding holdings or
valuations to the attention of the Adviser.
(5) The Fund Manager shall for all purposes herein be deemed to
be an independent contractor. The Fund Manager has no authority to act
for or represent the Fund or the Short Duration Bond Fund in any way
except to direct securities transactions pursuant to its investment
advice hereunder. The Fund Manager is not an agent of the Fund or the
Short Duration Bond Fund.
(6) It is understood that the Fund Manager does not, by this
Agreement, undertake to assume or pay any costs or expenses of the Fund
or the Short Duration Bond Fund.
(6)(a) The Adviser agrees to pay the Fund Manager for its
services to be furnished under this Agreement, with respect to each
calendar month after the effective date of this Agreement, on the
twentieth (20th) day after the close of each calendar month, a sum equal
to 0.0083 of 1% of the average of the daily closing net asset values of
the Short Duration Bond Fund managed by the Fund Manager during such
month (that is, 0.10 of 1% per year).
(6)(b) The payment of all fees provided for hereunder shall be
prorated and reduced for sums payable for a period less than a full month
in the event of termination of this Agreement on a day that is not the
end of a calendar month.
(6)(c) For the purposes of this Paragraph 6, the daily closing
net asset values of the Short Duration Bond Fund shall be computed in the
manner specified in the Registration Statement for the computation of the
value of such net assets in connection with the determination of the net
asset value of the Short Duration Bond Fund's shares.
(7) The services of the Fund Manager hereunder are not to be
deemed to be exclusive, and the Fund Manager is free to render services
to others and to engage in other activities so long as its services
hereunder are not impaired thereby. Without in any way relieving the Fund
Manager of its responsibilities hereunder, it is agreed that the Fund
Manager may employ others to furnish factual information economic advice
and/or research, and investment recommendations, upon which its
investment advice and service is furnished hereunder. The Fund Manager,
may, from time to time hereafter, act as investment adviser to one or
more other investment companies and fiduciary or other managed accounts,
provided that when the Fund Manager purchases or sells securities of the
same issuer on behalf of two or more advisory clients, the available
securities will be allocated in a manner believed by the Fund Manager to
be equitable to each client.
(8) In the absence of willful misfeasance, bad faith or gross
negligence in the performance of its duties hereunder, or reckless
disregard of its obligations and duties hereunder, the Fund
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Manager shall not be liable to the Fund, the Short Duration Bond Fund or
the Adviser or to any shareholder or shareholders of the Fund, the Short
Duration Bond Fund or the Adviser for any mistake of judgment, act or
omission in the course of, or connected with, the services to be rendered
by the Fund Manager hereunder; except that the Fund Manager shall be held
liable for any losses resulting from its negligent management which
result in transactional errors or omissions including, but not limited
to, incorrect, delayed or omitted trade advices arising from the Fund
Manager's negligence which result in mispricing the Short Duration Bond
Fund; and the Fund Manager shall be obligated to make the Short Duration
Bond Fund whole and absorb related transfer agent costs which result from
the transaction.
(9) The Fund Manager will not take, and it will take necessary
steps to prevent its officers and directors from taking, at any time, a
short position in any shares of any holdings of any portfolio of the
Short Duration Bond Fund. The Fund Manager also will cooperate with the
Fund in adopting a written policy prohibiting xxxxxxx xxxxxxx with
respect to Short Duration Bond Fund transactions insofar as such
transactions may relate to the Fund Manager.
(10) In connection with the management of the investment and
reinvestment of the assets of the Short Duration Bond Fund, the Fund
Manager is authorized to select the brokers or dealers that will execute
purchase and sale transactions for the Short Duration Bond Fund, and is
directed to use its best efforts to obtain the best available price and
most favorable execution with respect to such purchases and sales of
Short Duration Bond Fund securities for the Fund. Subject to this primary
requirement, and maintaining as its first consideration the benefits for
the Short Duration Bond Fund and its shareholders, the Fund Manager shall
have the right, subject to the approval of the Board of Directors of the
Fund and of the Adviser, to follow a policy of selecting brokers and
dealers who furnish statistical research and other services to the Short
Duration Bond Fund, the Adviser or the Fund Manager and, subject to the
Rules of Fair Practice of the National Association of Securities Dealers,
Inc., to select brokers and dealers who sell shares of funds of the Fund.
(11) The Fund may terminate this Agreement by thirty (30) days
written notice to the Adviser and the Fund Manager at any time, without
the payment of any penalty, by vote of the Fund's Board of Directors, or
by vote of a majority of its outstanding voting securities. The Adviser
may terminate this Agreement by thirty (30) days written notice to the
Fund Manager and the Short Duration Bond Fund Manager may terminate this
Agreement by thirty (30) days written notice to the Adviser, without the
payment of any penalty. This Agreement shall immediately terminate in the
event of its assignment, unless an order is issued by the Securities and
Exchange Commission conditionally or unconditionally exempting such
assignment from the provisions of Section 15(a) of the 1940 Act, in which
event this Agreement shall remain in full force and effect.
(12) Subject to prior termination as provided above, this
Agreement shall continue in force from the date of execution until
November 29, 2004 and from year to year thereafter if its continuance
after said date: (1) is specifically approved on or before said date and
at least annually thereafter by vote of the Board of Directors of the
Fund, including a majority of those Directors who are not parties to this
Agreement or interested persons of any such party, or by vote of a
majority of the outstanding voting securities of the Short Duration Bond
Fund, and (2) is specifically approved at least annually by the vote of a
majority of Directors of the Fund who are not parties to this 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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(13) The Adviser shall indemnify and hold harmless the Fund
Manager, its officers and directors and each person, if any, who
controls the Fund Manager within the meaning of Section 15 of the
Securities Act of 1933 (any and all such persons shall be referred to as
"Indemnified Party"), against any loss, liability, damage or expense
(including the reasonable cost of investigating or defending any alleged
loss, liability, damages or expense and reasonable counsel fees incurred
in connection therewith), arising by reason of any matter to which this
Fund Manager's Agreement relates. However, in no case (i) is this
indemnity to be deemed to protect any particular Indemnified Party
against any liability to which such Indemnified Party would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence
in the performance of its duties or by reason of reckless disregard of
its obligations and duties under this Fund Manager's Agreement or (ii)
is the Adviser to be liable under this indemnity with respect to any
claim made against any particular Indemnified Party unless such
Indemnified Party shall have notified the Adviser in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon the
Fund Manager or such controlling persons.
The Fund Manager shall indemnify and hold harmless the Adviser
and each of its directors and officers and each person if any who
controls the Adviser within the meaning of Section 15 of the Securities
Act of 1933, against any loss, liability, damage or expense described in
the foregoing indemnity, but only with respect to the Fund Manager's
willful misfeasance, bad faith or gross negligence in the performance of
its duties under this Fund Manager's Agreement. In case any action shall
be brought against the Adviser or any person so indemnified, in respect
of which indemnity may be sought against the Fund Manager, the Fund
Manager shall have the rights and duties given to the Adviser, and the
Adviser and each person so indemnified shall have the rights and duties
given to the Fund Manager by the provisions of subsection (i) and (ii)
of this Paragraph 13.
(14) Except as otherwise provided in Paragraph 13 hereof and as
may be required under applicable federal law, this Fund Manager's
Agreement shall be governed by the laws of the State of Georgia.
(15) The Fund Manager agrees to notify the parties within a
reasonable period of time regarding a material change in the ownership
of the Fund Manager.
(16) 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 Investment Company
Act of 1940 as now in effect or as hereafter amended.
(17) Unless otherwise permitted, all notices, instructions and
advice with respect to security transactions or any other matters
contemplated by this Agreement shall be deemed duly given when received
in writing:
by the Fund Manager: MONY Capital Management, Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, President
by the Adviser: Enterprise Capital Management, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, XX 00000-0000
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by the Fund: The Enterprise Group of Funds, Inc. c/o Enterprise
Capital Management, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, XX 00000-0000
or by such other person or persons at such address or addresses
as shall be specified by the applicable party, in each case, in a notice
similarly given. Each party may rely upon any notice or other
communication from the other reasonably believed by it to be genuine.
(18) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original and all of which, when
taken together, shall constitute one and the same agreement.
(19) This Agreement constitutes the entire agreement between the
Fund Manager, the Adviser and the Fund relating to the Short Duration
Bond Fund.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their duly authorized officers and attested, as of the date first above
written.
THE ENTERPRISE GROUP OF FUNDS, INC.
ATTEST:/s/XXXXXXXXX X XXXXXXXXX By:/s/ XXXXXX XXXXXX
------------------------ -------------------------------------------
Secretary Xxxxxx Xxxxxx, Chairman, President
and Chief Executive officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
ATTEST:/s/XXXXXXXXX X XXXXXXXXX By:/s/ XXXXXX XXXXXX
------------------------ -------------------------------------------
Secretary Xxxxxx Xxxxxx, Chairman, President
and Chief Executive Officer
MONY CAPITAL MANAGEMENT, INC.
ATTEST:/s/ XXXX X XXXXXXX By: /s/ WILL X XXXXXXX
------------------------ -------------------------------------------
Secretary
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------------
Title: President & CEO
---------------------------------------
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