Exhibit (d)(v)
EQUITY INCOME PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 29th day of November, 2002, 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 Boston Advisors, Inc., a New York corporation (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.
(B) The parties hereto wish to enter into an agreement whereby the
Portfolio Manager will provide to the Equity Income Portfolio, a series of the
Fund (the "Equity Income Portfolio") securities investment advisory services for
the Equity Income Portfolio.
WITNESSETH THAT:
In consideration of the mutual covenants herein contained, the Fund,
Adviser and the Portfolio Manager agree as follows:
(1) The Fund and Adviser hereby employ the Portfolio Manager to
render certain investment advisory services to the Equity Income
Portfolio, 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.
(2) The Portfolio Manager shall furnish the Equity Income Portfolio
advice with respect to the investment and reinvestment of the assets of
the Equity Income Portfolio, or such portion of the assets of the Equity
Income Portfolio as the Adviser shall specify from time to time, in
accordance with the investment objectives, restrictions and limitations of
the Equity Income Portfolio which are in the Fund's most recent
Registration Statement.
(3) The Portfolio Manager shall perform a monthly reconciliation of
the Equity Income 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 maintain all books and records with
respect to the Equity Income Portfolio'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 Trustees such periodic and special
reports as the Fund's Board of Trustees may reasonably request. The
Portfolio Manager shall timely furnish to the Adviser all information
relating to the Portfolio Manager's services under this
Agreement needed by the Adviser to keep the other books and records of the
Equity Income Portfolio required by Rule 31a-1 under the 1940 Act. The
Portfolio Manager agrees that all records that it maintains on behalf of
the Equity Income Portfolio are property of the Equity Income Portfolio
and the Portfolio Manager will surrender promptly to the Equity Income
Portfolio any of such records upon the Equity Income Portfolio's request;
provided, however, that the Portfolio Manager may retain a copy of such
records. The Portfolio 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 Portfolio
Manager shall perform a monthly reconciliation of the Equity Income
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.
(5) 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 Equity Income Portfolio in any way
except to direct securities transactions pursuant to its investment advice
hereunder. The Portfolio Manager is not an agent of the Fund or the Equity
Income Portfolio.
(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 Equity Income Portfolio.
(6) (a) The Adviser agrees to pay the Portfolio 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 0.025 of 1% of the average of the daily closing net asset value of the
Equity Income Portfolio managed by the Portfolio Manager during such month
(that is, 0.30 of 1% per year) for the first $100,000,000 under management
and a sum equal to 0.0208 of 1% of the average of the daily closing net
asset value for the next $100,000,000 to $200,000,000 (that is, 0.25 of 1%
per year); and a sum equal to 0.0167 of 1% of the average of daily closing
net asset value for assets in excess of $200,000,000 managed by the
Portfolio Manager during such month (that is, 0.20 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 Equity Income Portfolio 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 Equity Income Portfolio's shares.
(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, as investment
adviser to one or more other investment companies and fiduciary or other
managed accounts, provided that when the Portfolio 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 Portfolio 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 Portfolio Manager
shall not be liable to the Fund, the Equity Income Portfolio or the
Adviser or to any shareholder or shareholders of the Fund, the Equity
Income Portfolio 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; except that the Portfolio 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 Portfolio manager's negligence which result in mispricing the
Equity Income Portfolio; and the Portfolio Manager shall be obligated to
make the Equity Income Portfolio whole and absorb related transfer agent
costs which result from the transaction.
(9) The Portfolio Manager will not take, and will take necessary
steps to prevent its officers and trustees from taking, at any time, a
short position in any shares of any holdings of any Portfolios of the
Fund. The Portfolio Manager also will cooperate with the Fund in adopting
a written policy prohibiting xxxxxxx xxxxxxx with respect to Equity Income
Portfolio 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 Fund, the Portfolio Manager is
authorized to select the brokers or dealers that will execute purchase and
sale transactions for the Equity Income Portfolio, 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 Equity Income
securities for the Fund. Subject to this primary requirement, and
maintaining as its first consideration the benefits for the Equity Income
Portfolio 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 Equity Income
Portfolio, the Adviser or the Portfolio 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 portfolios of the Fund.
(11) The Fund may terminate this Agreement 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 Portfolio's Board of
Trustees, 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 Portfolio Manager and the Equity Income 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 provisions 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 November 29,
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 or
interested persons of any such party, or by vote
of a majority of the outstanding voting securities of the Equity Income
Portfolio, 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, damages or expense and reasonable counsel fees incurred in
connection therewith), arising by reason of any matter to which this
Portfolio 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 Portfolio 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 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, 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 material change in the membership of
the Portfolio 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 Portfolio Manager: Boston Advisors, Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
by the Adviser: Enterprise Capital Management, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, XX 00000-0000
by the Fund: Enterprise Accumulation Trust 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
Portfolio Manager, the Adviser and the Fund relating to the Equity Income
Portfolio.
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.
ENTERPRISE ACCUMULATION TRUST
ATTEST: By:
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Secretary Xxxxxx Xxxxxx, Chairman, President
and Chief Executive Officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
ATTEST: By:
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Secretary Xxxxxx Xxxxxx, Chairman, President
and Chief Executive Officer
BOSTON ADVISORS, INC.
ATTEST: By:
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Secretary Name:
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Title:
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