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EXHIBIT (D)(II)
GROWTH PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 1st day of November, 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 Montag & ▇▇▇▇▇▇▇▇, Inc., a Georgia corporation (hereinafter
referred to as "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 Growth Portfolio of the Fund (the "Growth
Portfolio") securities investment advisory services for that Fund.
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 Fund, 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 Growth Portfolio
advice with respect to the investment and reinvestment of the assets of the
Growth Portfolio, or such portion of the assets of the Fund 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 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 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 0.042 of 1% of the
average of the daily closing net asset value of the Fund 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 0.33 of 1% of the
average of the daily closing net asset value of the 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 0.25 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 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
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. 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 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
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benefits for the Portfolios 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 Conduct Rules 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 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 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 October 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 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.
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(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.
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/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
ENTERPRISE ACCUMULATION TRUST
(SEAL)
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
MONTAG & ▇▇▇▇▇▇▇▇, INC.
(SEAL)
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Secretary
