EXHIBIT (d)(xv)
MANAGED PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 23rd day of August, 2002, 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 ("▇▇▇ ▇▇▇▇ ▇▇▇") and shall render 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 (20th) day
after the close of each calendar month, a sum equal to 0.0225 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, 0.27 of 1% per year) for the
first $200,000,000 of assets under management; a sum equal to 0.020833 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 the next $200,000,000 of assets under management, and a sum equal to
0.019166 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,
0.23 of 1% per year) 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 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 ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, 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 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 August 23, 2004 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 or 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.
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
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
by the Adviser: Enterprise Capital Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
by the Fund: Enterprise Accumulation Trust c/o Enterprise Capital
Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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.
(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.
(26) 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 attested, as of the date first above written.
ENTERPRISE ACCUMULATION TRUST
ATTEST: By:
------------------------- ------------------------------------
Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
ATTEST: By:
------------------------- ------------------------------------
Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
WELLINGTON MANAGEMENT COMPANY, LLP
By:
-------------------------------------
ATTEST:
------------------------- Name
------------------------------------
Title:
----------------------------------
