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EXHIBIT (d)(vi)
CAPITAL APPRECIATION PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 3rd day of January 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 Xxxxxxx Capital Management, LLC, a Colorado LLC, (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 Capital Appreciation Portfolio of the Fund
(the "Capital Appreciation Portfolio") securities investment advisory services
for that Capital Appreciation 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 Capital
Appreciation 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 Capital
Appreciation Portfolio advice with respect to the investment and reinvestment of
the assets of the Capital Appreciation Portfolio, or such portion of the assets
of the Capital Appreciation Portfolio as the Adviser shall specify from time to
time, with full discretion in accordance with the investment objectives,
restrictions and limitations applicable to the Capital Appreciation Portfolio
which are set forth in the Fund's most recent Registration Statement.
(3) The Portfolio Manager shall perform a monthly
reconciliation of the Capital Appreciation 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 pursuant to its investment advice hereunder.
The Portfolio Manager is not an agent of the Fund or the portfolios.
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(5) 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 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 (20)
day after the close of each calendar month, a sum equal to 0.0375 of 1% of the
average of the daily closing net asset value of the Capital Appreciation
Portfolio managed by the Portfolio Manager during such month (that is, 0.45 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 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
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.
(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 Portfolio or the Adviser or to any shareholder or
shareholders of the Fund, the 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.
(9) The Portfolio Manager will take necessary steps to
prevent the investment professionals of the Portfolio Manager who are
responsible for investing assets of the Capital Appreciation Portfolio from
taking, at any time, a short position in any shares of any holdings of the
Capital Appreciation Portfolios 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. The Portfolio Manager
also will cooperate with the Fund in adopting a written policy prohibiting
xxxxxxx xxxxxxx with respect to Capital Appreciation 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 Capital Appreciation Portfolio, the
Portfolio Manager is authorized to select the brokers or dealers that will
execute purchase and sale transactions for the 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 portfolio securities for the Fund.
Subject to this primary requirement, and maintaining as its first consideration
the benefits for the Capital Appreciation 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 Capital
Appreciation Portfolio, 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.
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(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 Fund'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 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 1/3/2002 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 directors 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 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 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, 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 Paragraph 13.
(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.
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(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) This Agreement is executed by the Trustees of the
Fund, not individually, but rather in their capacity as Trustees under the
Declaration of Trust made March 2, 1998. None of the Shareholders, Trustees,
officers, employees, or agents of the Fund shall be personally bound or liable
under this Agreement, nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder but only to the property of
the Fund and, if the obligation or claim relates to the property held by the
Fund for the benefit of one or more but fewer than all Portfolios, then only to
the property held for the benefit of the affected Portfolio.
(18) 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:
Xxxxxxx Capital Management, LLC
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, 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.
(19) 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.
(20) This Agreement constitutes the entire agreement
between the Portfolio Manager, the Adviser and the Fund relating to the Capital
Appreciation Portfolio.
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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
(SEAL)
ATTEST: /s/ XXXXXXXXX X XXXXXXXXX By: /s/ XXXXXX XXXXXX
------------------------- ------------------------------------
Secretary Xxxxxx Xxxxxx, Chairman, President
and Chief Executive Officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
(SEAL)
ATTEST: /s/ XXXXXXXXX X XXXXXXXXX By: /s/ XXXXXX XXXXXX
------------------------- ------------------------------------
Secretary Xxxxxx Xxxxxx, Chairman, President
and Chief Executive Officer
XXXXXXX CAPITAL MANAGEMENT, LLC
(SEAL)
ATTEST: /s/ XXXXX XXXXXXX By: /s/ XXXXXXX X XXXXX
------------------------- ------------------------------------
Title V.P. Name: Xxxxxxx X. Xxxxx
----------------------------------
Title: President
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