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EXHIBIT (d)(xvii)
MANAGED PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 28th day of December, 2000, 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 Wellington Management Company, LLP, a Massachusetts
limited liability 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.
(B) The parties hereto wish to enter into an agreement whereby the
Portfolio Manager will provide to the Managed Portfolio, a series of the Fund
(the "Managed Portfolio") securities investment advisory services for that
Managed 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 Managed 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 manage the investments of
the Managed Portfolio and the composition of the Managed Portfolio, including
the purchase, retention, and disposition thereof, or such portion of the assets
of the Managed Portfolio as the Adviser shall specify from time to time, in
accordance with the investment objectives, restrictions and limitations
applicable to the Managed Portfolio which are set forth in the Fund's most
recent Registration Statement or any supplements thereto.
(3) The Portfolio Manager shall provide supervision of
the Managed Portfolio's investments and determine from time to time what
investments and securities will be purchased, retained or sold by the Managed
Portfolio and what portion of the assets will be invested or held uninvested in
cash, in accordance with the investment objectives, restrictions and limitations
applicable to the Managed Portfolio which are set forth in the Fund's most
recent Registration Statement or any supplements thereto.
(4) The Portfolio Manager shall maintain all books and
records with respect to the Managed Portfolio's 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 ("the 1940 Act") and shall render
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to the Fund's Board of Directors such periodic and special reports as the Fund's
Board of Directors 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 Managed Portfolio required by Rule 31a-1 under the 1940 Act. The
Portfolio Manager agrees that all records that it maintains on behalf of the
Managed Portfolio are property of the Managed Portfolio and the Portfolio
Manager will surrender promptly to the Managed Portfolio any of such records
upon the Managed 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 Managed
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 portfolios in any way except
to establish brokerage accounts with one or more brokers, dealers or other
financial intermediaries as the Portfolio Manager may select and to direct
securities transactions pursuant to its investment advice hereunder. The
Portfolio Manager is not an agent of the Fund or the Managed 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 Managed 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 0.03333 of 1% of the
average of the daily closing net asset value of the Managed Portfolio managed by
the Portfolio Manager during such month (that is, 0.40 of 1% per year) for the
first $500,000,000 (five hundred million dollars) of assets under management; a
sum equal to 0.029166 of 1% of the average daily closing net asset value of the
Managed Portfolio managed by the Portfolio Manager during such month (that is,
0.35 of 1% per year) for the next $500,000,000; a sum equal to 0.025 of 1% of
the average of the daily closing net asset value of the Managed Portfolio
managed by the Portfolio Manager during such month (that is, 0.30 of 1% per
year) for the next $1,000,000,000 (one billion dollars) of assets under
management up to $2,000,000,000 (two billion dollars); and a sum equal to
0.02083 of 1% of the average of the daily closing net asset value of the Managed
Portfolio managed by the Portfolio Manager during such month (that is 0.25 of 1%
per year) for assets under management thereafter.
(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. Services to be furnished by the Portfolio
Manager under this agreement may be furnished through the medium of any of the
Portfolio Manager's partners, officers, or employees. However, day-to-day
management of the Managed Portfolio shall be the
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responsibility of the individual specified in the Fund's Registration Statement,
or any supplements thereto. 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 Managed Portfolio from taking, at any
time, a short position in any shares of any holdings of the Managed Portfolio or
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 has adopted a written policy
prohibiting xxxxxxx xxxxxxx, a copy of which has been provided to the Adviser.
(10) In connection with the management of the investment
and reinvestment of the assets of the Managed Portfolio, the Portfolio Manager
is authorized to select the brokers or dealers that will execute purchase and
sale transactions for the Managed Portfolio, including those which from time to
time may furnish to the Portfolio Manager or its affiliates statistical and
investment research information and other services 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 Managed
Portfolio. Subject to this primary requirement, and maintaining as its first
consideration the benefits for the Managed Portfolio and its shareholders, the
Portfolio Manager shall have the right, subject to the direction of the Board of
Trustees of the Fund to select certain brokers and dealers who furnish
statistical research and other services to the Managed 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 the Funds.
(11) The Adviser has delivered to the Portfolio Manager
copies of each of the following documents and will deliver to it all future
amendments and supplements, if any:
(11) (a) By-Laws of the Fund (such By-Laws, as in effect
on the date of this Agreement and as amended from time to time, are herein
called the "By-Laws")
(11) (b) Certified resolutions of the Fund's Board of
Trustees authorizing the appointment of the Adviser and Portfolio Manager with
respect to the Managed Portfolio, and approving the form of this Agreement;
(11) (c) Registration Statement under the 1940 Act and the
Securities Act of 1933, as amended, on Form N-1A (the "Registration Statement"),
as filed with the Securities and Exchange Commission (the "Commission") relating
to the Fund and shares of the Fund's beneficial shares, and all amendments
thereto;
(11) (d) Prospectus of the Fund.
(12) During the term of this Agreement, the Adviser agrees
to furnish the Portfolio Manager at its principal office all sales literature
prepared for distribution to shareholders of the Managed
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Portfolio, the Fund or the public that refer to the Portfolio Manager in any
way, prior to the use thereof, and the Adviser shall not use any such materials
if the Portfolio Manager reasonably objects in writing within five business days
(or such other period as may be mutually agreed) after receipt thereof. The
Portfolio Manager's right to object to such materials is limited to the portions
of such materials that expressly relate to the Portfolio Manager, its services
and its clients. The Adviser agrees to use its reasonable best efforts to ensure
that materials prepared by its employees or agents or its affiliates that refer
to the Portfolio Manager or its clients in any way are consistent with those
materials previously approved by the Portfolio Manager as referenced in the
first sentence of this paragraph. Sales literature may be furnished to the
Portfolio Manager by first class or overnight mail, facsimile transmission
equipment or hand delivery.
(13) On occasions when the Portfolio Manager deems the
purchase or sale of a security to be in the best interest of the Managed
Portfolio as well as other clients of the Portfolio Manager, it may allocate
such transactions in the manner it considers to be the most equitable and
consistent with its fiduciary obligation to the Managed Portfolio and to such
other clients.
(14) 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.
(15) Subject to prior termination as provided above, this
Agreement shall continue in force from the date of execution until December 31,
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.
(16) The Adviser shall indemnify and hold harmless the
Portfolio Manager, its officers and partners 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.
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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 16.
(17) Except as otherwise provided in Paragraph 16 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.
(18) The Portfolio Manager agrees to notify the parties
within a reasonable period of time regarding a material change in the
partnership of the Portfolio Manager.
(19) 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.
(20) 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.
(21) 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: Wellington Management Company, LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
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.
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(22) No provisions of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought, and no amendment of this Agreement shall be effective
until approved by the Board of Trustees of the Fund in the manner required by
the 1940 Act.
(23) Should any part of this Agreement be held invalid by
a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
(24) Where the effect of a requirement of the 1940 Act
reflected in any provision of this Agreement is altered by a rule, regulation or
order of the Commission, whether of special or general application, such
provision shall be deemed to incorporate the effect of such rule, regulation or
order.
(25) 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.
(23) This Agreement constitutes the entire agreement between
the Portfolio Manager, the Adviser and the Fund relating to the Managed
Portfolio.
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, if applicable, 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
WELLINGTON MANAGEMENT COMPANY, LLP
By: /s/ XXXXXXXX X XXXXXX
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President
---------------------------------
