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EXHIBIT (D)(X)
GLOBAL FINANCIAL SERVICES PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 23rd day of September, 1998, 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 X. Xxxxxxxxx & Co., 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
dated as of May 1, 1995 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 (the "Portfolios"), 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 Global Financial Services Portfolio of the
Fund (the "Global Portfolio") securities investment advisory services for the
Global 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 Global 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 Global
Portfolio advice with respect to the investment and reinvestment of the assets
of the Global Portfolio, or such portion of the assets of the Global Portfolio
as the Adviser shall specify from time to time, in accordance with the
investment objectives, restrictions and limitations applicable to the Global
Portfolio which are set forth in the Fund's most recent Registration Statement.
(3) The Portfolio Manager shall perform a monthly
reconciliation of the Global 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 Portfolios.
(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 0.042 of 1% of the
average of the daily closing net asset value of the Global Portfolio managed by
the Portfolio Manager during such month (that is, 0.50 of 1% per year) for the
first $100,000,000 of assets under management; a sum equal to 0.033 of 1% of the
average of the daily closing net asset value of the Global Portfolio during such
month (that is, 0.40% per year) for assets from $100,000,000 to $300,000,000;
and a sum equal to 0.025 of 1% of the average of the daily closing net asset
value of the Global Portfolio during such month (that is, 0.30 of 1% per year)
for assets over $300,000,000.
(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
Global 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 Global Portfolio or the Adviser or to any
shareholder or shareholders of the Fund, the Global 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 Global Portfolio from taking, at any
time, a short position in any shares of any holdings of the Global Portfolio 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
Global 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 Global Portfolio, the Portfolio Manager is
authorized to select the brokers or dealers that will execute purchase and sale
transactions for the Global 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 Global Portfolio.
Subject to this primary requirement, and maintaining as its first consideration
the benefits for the Global Portfolio and its shareholders, the Portfolio
Manager shall have the right, subject to the approval of the Board of Directors
of the Portfolio and of the Adviser,
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to follow a policy of selecting brokers and dealers who furnish statistical
research and other services to the Global 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 Portfolios.
In lieu of selecting broker-dealers to execute
transactions in domestic equities for the Global Portfolio, the Portfolio
Manager may execute such transactions for the Global Portfolio provided that it
"steps-out" such transactions to the broker-dealers selected by the Portfolio
Manager. A step-out is a service provided by the New York Stock Exchange and
other markets which allows the Portfolio Manager to provide the Global Portfolio
with the benefit of the Portfolio Manager's execution capabilities at no
additional charge and then transfer or "step-out" the confirmation and
settlement responsibilities of such transactions to the broker-dealer(s)
selected by the Portfolio Manager. In connection with a step-out, transaction
charges shall be paid by the Global Portfolio to the broker-dealers selected by
the Portfolio Manager and not to the Portfolio Manager.
In addition to selecting brokers or dealers to
execute transactions for the Global Portfolio, the Portfolio Manager may,
subject to obtaining best execution, also act as a broker for the Global
Portfolio from time to time at rates not exceeding the usual and customary
broker's commission. Under Federal law, the Portfolio Manager must obtain the
Fund's and the Adviser's consent to effect agency cross transactions for the
Global Portfolio, which consent is hereby granted. The Portfolio Manager
represents, warrants and covenants that all agency cross transactions for the
Global Portfolio will be effected by the Portfolio Manager strictly in
accordance with Rule 206(3)-2 under the Investment Advisers Act of 1940. An
agency cross transaction is where the Portfolio Manager purchases or sells
securities from or to a non-managed account on behalf of a client's managed
account. Pursuant to this consent, the Portfolio Manager will not effect agency
cross transactions between two managed accounts, that is, the Portfolio Manager
will only effect an agency cross transaction for the Global Portfolio with a
non-managed account. When the Portfolio Manager crosses transactions in
connection with a step-out, the Portfolio Manager will receive a commission from
the transaction only with respect to the non-managed account and will not
receive a commission from the transaction with respect to the Global Portfolio.
In an agency cross transaction where the Portfolio Manager acts as broker for
Global Portfolio, the Portfolio Manager receives commissions from both sides of
the trade and there is a potentially conflicting division of loyalties and
responsibilities. However, as both sides to the trade want to execute the
transaction at the best price without moving the market price in either
direction, the Portfolio Manager believes that an agency cross transaction will
aid both sides to the trade in obtaining the best price for the trade. THE FUND
OR THE ADVISER MAY REVOKE THIS CONSENT BY WRITTEN NOTICE TO THE PORTFOLIO
MANAGER AT ANY TIME.
(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
Directors, 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 January 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 Directors of the Fund, including a majority of those
Directors who are not parties to this
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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, 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 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, 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.
(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:
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by the Portfolio Manager: Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxxx & Co., Inc.
Xxxxxxxx Point - West Tower
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000-0000
with a copy to: Managing Director - Institutional Asset Advisors
Xxxxxxx X. Xxxxxxxxx & Co., Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
by the Adviser:
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by the Fund:
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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 Global
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 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 X. XXXXXXXXX & CO., INC.
(SEAL)
ATTEST: /s/ XXXX XXXXX XXXX By: /s/ J. XXXXXX XXXXX
--------------------------- --------------------------------
Secretary J. Xxxxxx Xxxxx, Vice President and
Managing Director
