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EXHIBIT (D)(IV)
EQUITY AND MANAGED PORTFOLIOS
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 5th day of November, 1997, 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 OpCap Advisors, a Delaware general partnership (hereinafter
referred to as the "Portfolio Manager").
BACKGROUND INFORMATION
(A) The Adviser has entered into an Investment Adviser's Agreement
dated as of September 9, 1994 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 whereby the
Portfolio Manager will provide to the Equity and Managed Portfolios of the Fund
(the "Portfolios") securities investment advisory services for those Portfolios.
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 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.
(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 Portfolios 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.
(3) The Portfolio Manager shall perform a monthly reconciliation of
the Portfolios 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 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.
(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 Portfolios.
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(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 0.03333 of 1% of the average of the daily closing net asset
value of the Portfolios managed by the Portfolio Manager during such
month (that is, .40 of 1% per year) for assets under management up to
$1,000,000,000 (one billion dollars) per Portfolio; a sum equal to
0.025 of 1% of the average of the daily closing net asset values of the
Portfolios during such month (that is, 0.30 of 1% per year) for assets
under management in excess of $1,000,000,000 (one billion dollars) per
Portfolio; and as to the Managed Portfolio, a sum equal to 0.02083% of
the average daily closing net asset value of the Portfolio during such
month (that is 0.25 of 1% per year) for assets under management in
excess of $2,000,000,00 (two billion dollars).
(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 Portfolios' 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 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 necessary steps to prevent the
investment professionals of the Portfolio Manager who are responsible
for investing assets of the Portfolios from taking, at any 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. 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 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 Fund. 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 Portfolios, 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 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 Trustees, or
by vote of a majority of its outstanding voting securities. The Adviser
may terminate this Agreement by sixty
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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 November 1,
1999 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 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 New York.
(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) 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, 1988. 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
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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.
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)
ATTEST: /s/ XXXXXXXXX X. XXXXXXXXX By: /s/ XXXXXXX X. XXXX
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Secretary Xxxxxxx X. Xxxx, Vice President
ENTERPRISE ACCUMULATION TRUST
(SEAL)
ATTEST: /s/ XXXXXXXXX X. XXXXXXXXX By: /s/ XXXXXXX X. XXXX
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Secretary Xxxxxxx X. Xxxx, Vice President
(SEAL) OPCAP ADVISORS
ATTEST: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXX
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Secretary
