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EXHIBIT (D)(XVIII)
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 1st day of May, 2001, is among Enterprise
Accumulation Trust (the "Fund"), a Massachusetts business trust, Enterprise
Capital Management, Inc., a Georgia corporation (hereinafter referred to as the
"Adviser"), and Xxxxxxxx-Xxxxxxxxx Capital Management, a California limited
partnership (hereinafter referred to as the "Portfolio 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 Portfolios 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 Portfolio Managers to the Portfolios of the Fund.
(B) The parties hereto wish to enter into an agreement (the
"Agreement") whereby the Portfolio Manager will provide to portfolios of the
Fund set forth in Exhibit A (the "Portfolios") securities investment advisory
services for the Portfolios, subject to requisite approvals under the Investment
Company Act of 1940. The Fund, the Adviser, and the Portfolio Manager are
registered under the 1940 Act.
WITNESSETH THAT:
In consideration of the mutual covenants herein contained, the Fund,
Adviser and the Portfolio Manager agree as follows:
(1) (a) The Fund and Adviser hereby employ the Portfolio Manager to
render certain investment advisory services to the Portfolios, as set forth
herein. The Portfolio Manager hereby accepts such employment and agrees to
perform such services on the terms herein set forth, and for the compensation
herein provided.
(1) (b) The Fund acknowledges that initial funding of less than $5
million dollars in any portfolio may result in performance dispersion with any
other portfolios similarly managed by Xxxxxxxx-Xxxxxxxxx. This dispersion may
continue until the fund reaches sufficient size that it may invest in all of the
same issues held by other portfolios.
(2) The Portfolio Manager shall furnish the Portfolios advice with
respect to the investment and reinvestment of the assets of the Portfolios, or
such portion of the assets of the Fund as the Adviser shall specify from time to
time, in accordance with the investment objectives, restrictions and limitations
of the Portfolios, as set forth in the Fund's most recent Registration
Statement.
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(3) The Portfolio Manager shall perform a monthly reconciliation of the
Portfolio 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 Portfolio Manager shall for all purposes herein be deemed to be
an independent contractor. The Portfolio Manager has no authority to act for or
represent the Fund or the Portfolios in any way except to direct securities
transactions for the Portfolios pursuant to their investment advice hereunder.
The Portfolio Manager is not an agent of the Fund or the Portfolios.
(5) Unless otherwise notified in writing, Xxxxxxxx-Xxxxxxxxx will vote
all proxies and take any other actions relating to the securities in the account
including exercise of rights and acceptance of tender offers, etc. subject to
any investment guidelines provided by the client.
(6) It is understood that the Portfolio Manager does not, by this
Agreement, undertake to assume or pay any costs or expenses of the Fund or the
Portfolios.
(6) (a) The Adviser agrees to pay as compensation to the Portfolio
Manager as set forth in Exhibit A 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.
(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 Portfolios 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 shares of the
respective Portfolios.
(7) The services of the Portfolio Manager hereunder are not to be
deemed to be exclusive, and the Portfolio 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 Portfolio Manager of its
responsibilities hereunder, it is agreed that the Portfolio 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 Portfolio 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 purchase or sale of securities of
the same issuer is suitable for the investment objectives of two or more
companies or accounts managed by the Portfolio Manager which have available
funds for investment, the available securities will be allocated in a manner
believed by the Portfolio Manager to be equitable to each company or account.
(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 Portfolio Manager shall not be liable
to the Fund, the Portfolios or the Adviser or to any shareholder or shareholders
of the Fund, the Portfolios 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
Portfolio Manager hereunder.
(9) The Portfolio Manager will take reasonable steps to prevent the
investment professionals of the Portfolio Manager who are responsible for
investing assets of each of the Portfolios from taking, at any
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time, a short position in any shares of any holdings of any Portfolios of the
Fund for any accounts in which such individuals have a beneficial interest,
excluding short positions, including without limitation, short against-the-box
positions, effected for tax reasons, short positions held by investment
companies in which the investment professional may hold a beneficial interest,
and short positions of other investment products over which the investment
professional has no investment control. The Portfolio Manager also will
cooperate with the Fund in adopting a written policy prohibiting xxxxxxx xxxxxxx
with respect to the Portfolios transactions insofar as such transactions may
relate to the Portfolio Manager.
(10) In connection with the management of the investment and
reinvestment of the assets of the Portfolios, the Portfolio Manager is
authorized to select the brokers or dealers that will execute purchase and sale
transactions for the Portfolios, 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 Portfolio securities for the Portfolios. Subject to
this primary requirement, and maintaining as its first consideration the
benefits for the Portfolios and its shareholders, the Portfolio Manager shall
have the right, subject to the approval of the Board of Trustees 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 Fund, the Portfolios, the
Adviser, or the Portfolio Manager and, subject to the Conduct Rules of the
National Association of Securities Dealers, Inc., to select brokers and dealers
who sell shares of Portfolios.
(11) The Fund may terminate this Agreement as to any or all of the
Portfolios by thirty (30) days written notice to the Adviser and the Portfolio
Manager at any time, without the payment of any penalty, by vote of the Fund's
Board of Trustees, or by vote of a majority of its outstanding voting securities
of the applicable Portfolio(s). The Adviser may terminate this Agreement by
thirty (30) days' written notice to the Portfolio Manager and the Portfolio
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 provision of Section 15 (a) of the Investment Company
Act of 1940, 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 May 1, 2003, 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 Trustees of the Fund, including a majority of those Trustees who are
not parties to this Agreement of interested persons of any such party, or by
vote of a majority of the outstanding voting securities of the Fund, and (2) is
specifically approved at least annually by the vote of a majority of Trustees 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.
(13) The Adviser shall indemnify and hold harmless the Portfolio
Manager, its officers and Trustees and each person, if any, who controls the
Portfolio 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, claim, damage or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damages or
expense and reasonable counsel fees incurred in connection therewith), arising
from the Indemnified Party's performance or non-performance of any duties under
this Agreement. 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 Portfolio Manager's
Agreement or (ii) is the Adviser to be
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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 Portfolio Manager or such controlling persons.
The Portfolio Manager shall indemnify and hold harmless the Adviser and
each of its Trustees 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, claim, damage or expense described in the foregoing
indemnity, but only with respect to the Portfolio Manager's willful misfeasance,
bad faith or gross negligence in the performance of its duties under this
Portfolio 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 Portfolio Manager, the Portfolio 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 Portfolio Manager by
the provisions of subsection (i) and (ii) of this section.
(14) Except as otherwise provided in paragraph 13 hereof and as may be
required under applicable federal law, this Portfolio Manager's Agreement shall
be governed by the laws of the State of Georgia.
(15) The Portfolio Manager agrees to notify the parties within a
reasonable period of time regarding a change in its General Partner(s).
(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 other matters contemplated by this
Agreement shall be deemed duly given when received in writing:
by the Portfolio Manager: Xxxxxxxx-Xxxxxxxxx Capital Management
000 Xxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attn: Director, Portfolios Service/Marketing
Copy to: Xxxxxxx X. Field, Deputy General Counsel
by the Adviser: Enterprise Capital Management, Inc.
0000 Xxxxxxxxx Xxxx XX, Xxxxx 000
Xxxxxxx, XX 00000 1022
Attn: Xxxxxx Xxxxxx, Chairman, President and CEO
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by the Fund: Enterprise Accumulation Trust
c/o Enterprise Capital Management, Inc.
0000 Xxxxxxxxx Xxxx XX, Xxxxx 000
Xxxxxxx, XX 00000 1022
Attn: Xxxxxx Xxxxxx, Chairman, President and CEO
(18) If any provision of this Agreement shall be held or made invalid
by a count decision, statute or rule, or shall be otherwise rendered invalid,
the remainder of this Agreement shall not be affected thereby.
(19) The Portfolio hereby consents to the reasonable use of its name in
marketing materials developed and distributed by or on behalf of Portfolio
Manager. In addition, it is understood that the name "Xxxxxxxx-Xxxxxxxxx" or the
name of any of its affiliates, or any derivative associated with those names,
are the valuable property of the Portfolio Manager and its affiliates and that
the Fund and/or the Fund's distributor have the right to use such name(s) or
derivative(s) in offering materials and sales literature of the Fund so long as
this Agreement is in effect. Upon termination of the Agreement, the Fund shall
forthwith cease to use such name(s) or derivative(s).
(20) The Fund has received from Portfolio Manager and reviewed the
disclosure statement or "brochure" required to be delivered pursuant to Rule
204-3 of the Act (the "Brochure"), which Brochure was received and reviewed by
the Fund more than 48 hours prior to entering into this Agreement.
(21) 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.
(22) This Agreement constitutes the entire agreement between the
Portfolio Manager, the Fund and the Fund relating to the Portfolios.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their duly authorized officers and their corporate seals hereunder duly
affixed and attested, as of the date first above written.
ENTERPRISE ACCUMULATION TRUST
/s/ XXXXXXXXX X. XXXXXXXXX /s/ XXXXXX XXXXXX
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ATTEST: By: Xxxxxx Xxxxxx
Secretary Chairman, President, and Chief Executive Officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
/s/ XXXXXXXXX X. XXXXXXXXX /s/ XXXXXX XXXXXX
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ATTEST: By: Xxxxxx Xxxxxx
Secretary Chairman, President, and Chief Executive Officer
XXXXXXXX-XXXXXXXXX CAPITAL
MANAGEMENT
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ATTEST: XXXXXX X. XXXXX By: E. XXXXX XXXXX, JR.
Contracts Manager General Counsel
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EXHIBIT A
NAME OF PORTFOLIO FEE
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Emerging Countries .6875% on the first $50 million; .6250% thereafter
Worldwide Growth .5375 on the first $50 million; .50% on the next $450
million; .45% on the next $500; .425% thereafter
Mid-Cap Growth .4375% on the first $50 million; .375% on the next $450
million; .3375% on the next $500 million; .325% thereafter
Global Health Care .60% on the first $50 million; .50% on the next $450
million; .45% on the next $500 million; .425% thereafter
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