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EXHIBIT (D)(VIII)
SMALL CAP PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the first day of June, 1996 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 GAMCO Investors, Inc., New York corporation, (hereinafter
referred to as the "Portfolio Manager").
BACKGROUND INFORMATION
(A) The Adviser has entered into an Investment Adviser's Agreement
dated as of May 1, 1993 with the Fund, a copy of which agreement is attached
hereto as Exhibit A (the "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 Portfolio 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 Portfolio of the Fund.
(B) The parties hereto wish to enter into an agreement whereby the
Portfolio Manager will provide to the Small Cap Portfolio of the Fund (the
"Portfolio") securities investment advisory services for that 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 employs the Portfolio
Manager to render certain investment advisory services to the
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 Portfolio
advice with respect to the investment and reinvestment of the assets of
the Portfolio, or such portion of the assets of the Portfolio as the
Adviser shall specify from time to time, in accordance with the
investment objectives, restrictions and limitations of the Portfolio as
set forth in the Fund's most recent Registration Statement.
(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 holding or valuation 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 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 Portfolio.
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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 (20th) day after the close of each calendar month, a sum
equal to 0.033 of 1% of the average of the daily closing net asset
value of the Portfolio managed by the Portfolio Manager during such
month (that is, .40 of 1% per year) for the first $1,000,000,000 of
assets under management and a sum equal to 0.025 of 1% of the average
of the daily closing net asset value of the Portfolio during such month
(that is, 0.30 of 1% per year) for assets in excess of $1,000,000,000
under management.
(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' 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 Portfolio from taking, at any
time, a short position in any shares of any holdings of any Portfolio
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.
The Portfolio Manager also will cooperate with the Fund in adopting a
written policy prohibiting xxxxxxx xxxxxxx with respect to Fund
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 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
Portfolio and its shareholders, the Portfolio 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 Portfolio,
the Adviser, or the Portfolio Manager and, subject to the Rules of
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Fair Practice of the National Association of Securities Dealers, Inc.,
to select brokers and dealers who sell shares of Portfolio of the Fund.
(11) The Fund may terminate this Agreement by sixty 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
Directors, or by vote of a majority of its outstanding voting
securities. The Adviser may terminate this Agreement by sixty days
written notice to the Portfolio Manager and the Portfolio Manager may
terminate this Agreement by sixty 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
31, 1998 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 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
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.
(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 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.
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(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.
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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 CAPITAL
MANAGEMENT, INC.
(SEAL)
By: /s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Chairman, President and CEO
ATTEST: /s/ XXXXXXXXX X. XXXXXXXXX
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GAMCO INVESTORS, INC.
(SEAL)
By: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
ATTEST: /s/ X.X. XXXXX Executive Vice President and COO
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Secretary
ENTERPRISE ACCUMULATION
TRUST
By: /s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Chairman, President and CEO
ATTEST: /s/ XXXXXXXXX X. XXXXXXXXX
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Secretary
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