INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of December 28, 2004, by and between Enterprise Capital
Management, Inc., a Georgia corporation (the "Manager"), and UBS Global Asset
Management (Americas) Inc., a Delaware corporation ("Adviser").
WHEREAS, the Manager is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Manager has entered into an Investment Management Agreement
dated December 28, 2004 with The Enterprise Group of Funds II, Inc.
("Corporation"), an investment company registered under the Investment Company
Act of 1940, as amended ("Investment Company Act");
WHEREAS, the Adviser is registered as an investment adviser under the
Advisers Act;
WHEREAS, the Board of Directors of the Corporation and the Manager desire
to retain the Adviser to render investment advisory and other services to the
portfolio(s) specified in Appendix A hereto, each a series of the Corporation
(each a "Portfolio" and collectively, the "Portfolios"), in the manner and on
the terms hereinafter set forth;
WHEREAS, the Manager has the authority under the Investment Management
Agreement with the Corporation to select advisers for each Portfolio of the
Corporation; and
WHEREAS, the Adviser is willing to furnish such services to the Manager and
each Portfolio;
NOW, THEREFORE, the Manager and the Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as an investment adviser for
each Portfolio, subject to the supervision and oversight of the Manager and the
Directors of the Corporation, and in accordance with the terms and conditions of
this Agreement. The Adviser will be an independent contractor and will have no
authority to act for or represent the Corporation or the Manager in any way or
otherwise be deemed an agent of the Corporation or the Manager except as
expressly authorized in this Agreement or another writing by the Corporation,
the Manager and the Adviser.
2. ACCEPTANCE OF APPOINTMENT
The Adviser accepts that appointment and agrees to render the services
herein set forth, for the compensation herein provided.
The assets of each Portfolio will be maintained in the custody of a
custodian (who shall be identified by the Manager in writing). The Adviser will
not have custody of any securities, cash or other assets of the Portfolio and
will not be liable for any loss resulting from any act or omission of the
custodian other than acts or omissions arising in reliance on instructions of
the Adviser.
3. SERVICES TO BE RENDERED BY THE ADVISER TO THE CORPORATION
A. As investment adviser to each Portfolio, the Adviser will coordinate the
investment and reinvestment of the assets of the Portfolio and determine the
composition of the assets of the Portfolio, subject always to the supervision
and control of the Manager and the Directors of the Corporation.
B. As part of the services it will provide hereunder, the Adviser will:
(i) obtain and evaluate, to the extent deemed necessary and advisable
by the Adviser in its discretion, pertinent economic, statistical,
financial, and other information affecting the economy generally and
individual companies or industries, the securities of which are included in
the Portfolio or are under consideration for inclusion in the Portfolio;
(ii) formulate and implement a continuous investment program for the
Portfolio;
(iii) take whatever steps are necessary to implement the investment
program for the Portfolio by arranging for the purchase and sale of
securities and other investments, including issuing directives to the
administrator of the Corporation as necessary for the appropriate
implementation of the investment program of the Portfolio;
(iv) keep the Directors of the Corporation and the Manager fully
informed in writing on an ongoing basis as agreed by the Manager and
Adviser of all material facts concerning the investment and reinvestment of
the assets in the Portfolio, the Adviser and its key investment personnel
and operations, make regular and periodic special written reports of such
additional information concerning the same as may reasonably be requested
from time to time by the Manager or the Directors of the Corporation and
the Adviser will attend meetings with the Manager and/or the Directors, as
reasonably requested, to discuss the foregoing;
(v) in accordance with procedures and methods established by the
Directors of the Corporation, which may be amended from time to time,
provide assistance to the Manager and/or any pricing service designated by
the Manager with respect to determining the fair value of all securities
and other investments/assets in the Portfolio, as necessary;
(vi) provide any and all material composite performance information,
records and supporting documentation about accounts the Adviser manages, if
appropriate, which are relevant to the Portfolio and that have investment
objectives, policies, and strategies substantially similar to those
employed by the Adviser in managing the Portfolio that may be reasonably
necessary, under applicable laws, to allow the Portfolio or its agent to
present information concerning Adviser's prior performance in the
Corporation's Prospectus and SAI (as hereinafter defined) and any
permissible reports and materials prepared by the Portfolio or its agent;
and
(vii) cooperate with and provide reasonable assistance to the Manager,
the Corporation's administrator, the Corporation's custodian and foreign
custodians, the Corporation's transfer agent and pricing agents and all
other agents and representatives of the Corporation and the Manager, keep
all such persons fully informed as to such matters
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as they may reasonably deem necessary to the performance of their
obligations to the Corporation and the Manager, provide prompt responses to
reasonable requests made by such persons and maintain any appropriate
interfaces with each so as to promote the efficient exchange of
information.
C. In furnishing services hereunder, the Adviser shall be subject to, and
shall perform in accordance with the following: (i) the Articles of
Incorporation of the Corporation, as the same may be hereafter modified and/or
amended from time to time ("Articles"); (ii) the By-Laws of the Corporation, as
the same may be hereafter modified and/or amended from time to time ("By-Laws");
(iii) the currently effective Prospectus and Statement of Additional Information
of the Corporation filed with the SEC and delivered to the Adviser, as the same
may be hereafter modified, amended and/or supplemented ("Prospectus and SAI");
(iv) the Investment Company Act and the Advisers Act and the rules under each,
and all other federal and state laws or regulations applicable to the
Corporation and the Portfolio(s); (v) the Corporation's policies and procedures
adopted from time to time by the Board of Directors of the Corporation; and (vi)
the written instructions of the Manager. Prior to the commencement of the
Adviser's services hereunder, the Manager shall provide the Adviser with current
copies of the Corporation's Articles, By-Laws, Prospectus, SAI and other
relevant policies and procedures that are adopted by the Board of Directors. The
Manager undertakes to provide the Adviser with copies or other written notice of
any amendments, modifications or supplements to any such above-mentioned
document.
D. In furnishing services hereunder, the Adviser will not consult with any
other adviser to (i) the Portfolio, (ii) any other Portfolio of the Corporation
or (iii) any other investment company under common control with the Corporation
concerning transactions of the Portfolio in securities or other assets. (This
shall not be deemed to prohibit the Adviser from consulting with any of its
affiliated persons concerning transactions in securities or other assets. This
shall also not be deemed to prohibit the Adviser from consulting with any of the
other covered advisers concerning compliance with paragraphs a and b of rule
12d3-1.)
E. The Adviser, at its expense, will furnish: (i) all necessary facilities
and personnel, including salaries, expenses and fees of any personnel required
for them to faithfully perform their duties under this Agreement; and (ii)
administrative facilities, including bookkeeping, and all equipment necessary
for the efficient conduct of the Adviser's duties under this Agreement.
F. The Adviser will select brokers and dealers to effect all portfolio
transactions subject to the conditions set forth herein. The Adviser will place
all necessary orders with brokers, dealers, or issuers, and will negotiate
brokerage commissions, if applicable. The Adviser is directed at all times to
seek to execute transactions for each Portfolio (i) in accordance with any
written policies, practices or procedures that may be established by the Board
of Directors or the Manager from time to time and which have been provided to
the Adviser or (ii) as described in the Corporation's Prospectus and SAI. In
placing any orders for the purchase or sale of investments for each Portfolio,
in the name of the Portfolio or its nominees, the Adviser shall use its best
efforts to obtain for the Portfolio "best execution", considering all of the
circumstances, and shall maintain records adequate to demonstrate compliance
with this requirement. In no instance will portfolio securities be purchased
from or sold to the Adviser, or any affiliated person thereof, except in
accordance with the Investment Company Act, the Advisers Act and the rules under
each, and all other federal and state laws or regulations applicable to the
Corporation and the Portfolio.
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G. Subject to the appropriate policies and procedures approved by the Board
of Directors, Adviser may, to the extent authorized by Section 28(e) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") cause each
Portfolio to pay a broker or dealer that provides brokerage or research services
to the Adviser and the Portfolio an amount of commission for effecting a
portfolio transaction in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if the Adviser
determines, in good faith, that such amount of commission is reasonable in
relationship to the value of such brokerage or research services provided viewed
in terms of that particular transaction or the Adviser's overall
responsibilities to the Portfolio or its other advisory clients. To the extent
authorized by Section 28(e) and the Corporation's Board of Directors, the
Adviser shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason of such action. In
addition, subject to seeking "best execution", the Manager or the Adviser may
also consider sales of shares of the Corporation as a factor in the selection of
brokers and dealers. Subject to seeking best execution, the Board of Directors
or the Manager may direct the Adviser to effect transactions in portfolio
securities through broker-dealers in a manner that will help generate resources
to pay the cost of certain expenses that the Corporation is required to pay or
for which the Corporation is required to arrange payment.
H. On occasions when the Adviser deems the purchase or sale of a security
to be in the best interest of the Portfolio(s) as well as other clients of the
Adviser, the Adviser to the extent permitted by applicable laws and regulations,
may, but shall be under no obligation to, aggregate the securities to be
purchased or sold to attempt to obtain a more favorable price or lower brokerage
commissions and efficient execution. Allocation of the securities so purchased
or sold, as well as the expenses incurred in the transaction, will be made by
the Adviser in the manner which the Adviser considers to be the most equitable
and consistent with its fiduciary obligations to each Portfolio and to its other
clients over time. The Manager agrees that Adviser and its affiliates may give
advice and take action in the performance of their duties with respect to any of
their other clients that may differ from advice given, or the timing or nature
of actions taken, with respect to the Portfolio. The Manager also acknowledges
that Adviser and its affiliates are fiduciaries to other entities, some of which
have the same or similar investment objectives (and will hold the same or
similar investments) as the Portfolio, and that Adviser will carry out its
duties hereunder together with its duties under such relationships. Nothing in
this Agreement shall be deemed to confer upon Adviser any obligation to purchase
or to sell or to recommend for purchase or sale for the Portfolio any investment
that Adviser, its affiliates, officers or employees may purchase or sell for its
or their own account or for the account of any client, if in the sole and
absolute discretion of Adviser it is for any reason impractical or undesirable
to take such action or make such recommendation for the Portfolio.
I. The Adviser will maintain all accounts, books and records with respect
to each Portfolio as are required of an investment adviser of a registered
investment company pursuant to the Investment Company Act and Advisers Act and
the rules thereunder and shall file with the SEC all forms pursuant to Section
13 of the Exchange Act, with respect to its duties as are set forth herein.
J. The Adviser will, unless and until otherwise directed by the Manager or
the Board of Directors, exercise all rights of security holders with respect to
securities held by each Portfolio, including, but not limited to: voting
proxies, converting, tendering, exchanging or redeeming securities; acting as a
claimant in class action litigation (including litigation with respect to
securities previously held); and exercising rights in the context of a
bankruptcy or other reorganization.
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4. COMPENSATION OF ADVISER
The Manager will pay the Adviser an advisory fee with respect to each
Portfolio as specified in Appendix A to this Agreement. Payments shall be made
to the Adviser on or about the fifth day of each month; however, this advisory
fee will be calculated daily for the Portfolio based on the net assets of the
Portfolio on each day and accrued on a daily basis.
5. LIABILITY AND INDEMNIFICATION
A. Except as may otherwise be provided by the Investment Company Act or any
other federal securities law, neither the Adviser nor any of its officers,
members or employees (its "Affiliates") shall be liable for any losses, claims,
damages, liabilities or litigation (including legal and other expenses) incurred
or suffered by the Manager or the Corporation as a result of any error of
judgment or mistake of law by the Adviser or its Affiliates with respect to each
Portfolio, except that nothing in this Agreement shall operate or purport to
operate in any way to exculpate, waive or limit the liability of the Adviser or
its Affiliates for, and the Adviser shall indemnify and hold harmless the
Corporation, the Manager, all affiliated persons thereof (within the meaning of
Section 2(a)(3) of the Investment Company Act) and all controlling persons (as
described in Section 15 of the Securities Act of 1933, as amended ("1933 Act"))
(collectively, "Manager Indemnitees") against any and all losses, claims,
damages, liabilities or litigation (including reasonable legal and other
expenses) to which any of the Manager Indemnitees may become subject under the
1933 Act, the Investment Company Act, the Advisers Act, or under any other
statute, or common law or otherwise arising out of or based on (i) any willful
misconduct, bad faith, reckless disregard or gross negligence of the Adviser in
the performance of any of its duties or obligations hereunder or (ii) any untrue
statement of a material fact contained in the Prospectus and SAI, proxy
materials, reports, advertisements, sales literature, or other materials
pertaining to the Portfolio or the omission to state therein a material fact
known to the Adviser which was required to be stated therein or necessary to
make the statements therein not misleading, if such statement or omission was
made in reliance upon information furnished to the Manager or the Corporation by
the Adviser Indemnitees (as defined below) for use therein and was reproduced
without material change in the Corporation's materials.
B. Except as may otherwise be provided by the Investment Company Act or any
other federal securities law, the Manager and the Corporation shall not be
liable for any losses, claims, damages, liabilities or litigation (including
legal and other expenses) incurred or suffered by the Adviser as a result of any
error of judgment or mistake of law by the Manager with respect to each
Portfolio, except that nothing in this Agreement shall operate or purport to
operate in any way to exculpate, waive or limit the liability of the Manager
for, and the Manager shall indemnify and hold harmless the Adviser, all
affiliated persons thereof (within the meaning of Section 2(a)(3) of the
Investment Company Act) and all controlling persons (as described in Section 15
of the 1933 Act) (collectively, "Adviser Indemnitees") against any and all
losses, claims, damages, liabilities or litigation (including reasonable legal
and other expenses) to which any of the Adviser Indemnitees may become subject
under the 1933 Act, the Investment Company Act, the Advisers Act, or under any
other statute, at common law or otherwise arising out of or based on (i) any
willful misconduct, bad faith, reckless disregard or gross negligence of the
Manager in the performance of any of its duties or obligations hereunder or (ii)
any untrue statement of a material fact contained in the Prospectus and SAI,
proxy materials, reports, advertisements, sales literature, or other materials
pertaining to the Portfolio(s) or the omission to state therein a material fact
known to the Manager that was required to be stated therein or necessary to make
the statements therein not misleading, unless such statement or omission was
made in reliance
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upon information furnished to the Manager or the Corporation by the Adviser
Indemnitees as provided in this section.
6. REPRESENTATIONS OF MANAGER
The Manager represents, warrants and agrees that:
A. The Manager has been duly authorized by the Board of Directors of the
Corporation to delegate to the Adviser the provision of investment services to
each Portfolio as contemplated hereby.
B. The Manager has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Adviser with a copy of such code of ethics.
C. The Manager is currently in compliance and shall at all times continue
to comply with the requirements imposed upon the Manager by applicable law and
regulations.
D. The Manager (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) to the best or its knowledge, has met and
will seek to continue to meet for so long as this Agreement is in effect, any
other applicable federal or state requirements, or the applicable requirements
of any regulatory or industry self-regulatory agency necessary to be met in
order to perform the services contemplated by this Agreement; and (v) will
promptly notify Adviser of the occurrence of any event that would disqualify
Manager from serving as investment manager of an investment company pursuant to
Section 9(a) of the Investment Company Act or otherwise. The Manager will also
promptly notify the Adviser if it is served or otherwise receives notice of any
action, suit, proceeding, inquiry or investigation, at law or in equity, before
or by any court, public board or body, involving the affairs of the
Portfolio(s), provided, however, that routine regulatory examinations shall not
be required to be reported by this provision.
7. REPRESENTATIONS OF ADVISER
The Adviser represents, warrants and agrees as follows:
A. The Adviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) has met and will seek to continue to meet
for so long as this Agreement remains in effect, any other applicable federal or
state requirements, or the applicable requirements of any regulatory or industry
self-regulatory agency necessary to be met in order to perform the services
contemplated by this Agreement; (iv) has the authority to enter into and perform
the services contemplated by this Agreement; and (v) will promptly notify
Manager of the occurrence of any event that would disqualify the Adviser from
serving as an investment adviser of an investment company pursuant to Section
9(a) of the Investment Company Act or otherwise. The Adviser will also promptly
notify each Portfolio and the Manager if it is served or otherwise receives
notice of any action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, public board or body, involving the affairs of
the Portfolio(s), provided, however, that routine regulatory examinations shall
not be required to be reported by this provision.
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B. The Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Manager and the Board with a copy of such code of ethics, together with evidence
of its adoption. Within forty-five days of the end of the last calendar quarter
of each year that this Agreement is in effect, and as otherwise requested, the
president, Chief Operating Officer or a vice-president of the Adviser shall
certify to the Manager that the Adviser has complied with the requirements of
Rule 17j-1 during the previous year and that there has been no material
violation of the Adviser's code of ethics or, if such a material violation has
occurred, that appropriate action was taken in response to such violation. Upon
the written request of the Manager, the Adviser shall permit the Manager, its
employees or its agents to examine the reports required to be made to the
Adviser by Rule 17j-1(c)(1) and all other records relevant to the Adviser's code
of ethics.
C. The Adviser has provided the Corporation and the Manager with a copy of
its Form ADV, which as of the date of this Agreement is its Form ADV as most
recently filed with the Securities and Exchange Commission and promptly will
furnish a copy of all amendments to the Corporation and the Manager at least
annually. Such amendments shall reflect all changes in the Adviser's
organizational structure, professional staff or other significant developments
affecting the Adviser, as required by the Advisers Act.
D. The Adviser will notify the Corporation and the Manager of any
assignment of this Agreement or change of control of the Adviser, as applicable,
and any changes in the key personnel who are either the portfolio manager(s) of
the Portfolio(s) or senior management of the Adviser, in each case prior to or
promptly after, such change. The Adviser agrees to bear all reasonable expenses
of the Corporation, if any, arising out of an assignment or change in control.
E. The Adviser agrees to maintain a reasonable level of errors and
omissions or professional liability insurance coverage.
F. The Adviser agrees that neither it, nor any of its affiliates, will
knowingly in any way refer directly or indirectly to its relationship with the
Corporation, the Portfolio(s), the Manager or any of their respective affiliates
in offering, marketing or other promotional materials without the express
written consent of the Manager, except as required by rule, regulation or upon
the request of a governmental authority. However, the Adviser may use the
performance of the Portfolio in its composite performance.
8. NON-EXCLUSIVITY
The services of the Adviser to the Manager, the Portfolio(s) and the
Corporation are not to be deemed to be exclusive, and the Adviser shall be free
to render investment advisory or other services to others and to engage in other
activities. It is understood and agreed that the directors, officers, and
employees of the Adviser are not prohibited from engaging in any other business
activity or from rendering services to any other person, or from serving as
partners, officers, directors, trustees, or employees of any other firm or
corporation.
9. SUPPLEMENTAL ARRANGEMENTS
The Adviser may from time to time employ or associate itself with any
person it believes to be particularly suited to assist it in providing the
services to be performed by such Adviser hereunder, provided that no such person
shall perform any services with respect to the Portfolio(s) that would
constitute an assignment or require a written advisory agreement pursuant to the
Investment Company Act. Any compensation payable to such persons shall be the
sole
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responsibility of the Adviser, and neither the Manager nor the Corporation shall
have any obligations with respect thereto or otherwise arising under the
Agreement.
10. REGULATION
The Adviser shall submit to all regulatory and administrative bodies having
jurisdiction over the services provided pursuant to this Agreement any
information, reports, or other material which any such body by reason of this
Agreement may request or require pursuant to applicable laws and regulations.
11. RECORDS
The records relating to the services provided under this Agreement shall be
the property of the Corporation and shall be under its control; however, the
Corporation shall furnish to the Adviser such records and permit it to retain
such records (either in original or in duplicate form) as it shall reasonably
require in order to carry out its business. In the event of the termination of
this Agreement, such other records shall promptly be returned to the Corporation
by the Adviser free from any claim or retention of rights therein, provided that
the Adviser may retain any such records that are required by law or regulation.
The Manager and the Adviser shall keep confidential any information obtained in
connection with its duties hereunder and disclose such information only if the
Corporation has authorized such disclosure or if such disclosure is expressly
required or requested by applicable federal or state regulatory authorities, or
otherwise required by law.
12. DURATION OF AGREEMENT
This Agreement shall continue in effect for a period more than one year
from the date of its execution only so long as such continuance is specifically
approved at least annually by the Board of Directors provided that in such event
such continuance shall also be approved by the vote of a majority of the
Independent Directors cast in person at a meeting called for the purpose of
voting on such approval.
13. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of any
penalty, by the Board of Directors, including a majority of the Independent
Directors, by the vote of a majority of the outstanding voting securities of the
Portfolio, on sixty (60) days' written notice to the Manager and the Adviser, or
by the Manager or Adviser on sixty (60) days' written notice to the Corporation
and the other party. This Agreement will automatically terminate, without the
payment of any penalty, (i) in the event of its assignment (as defined in the
Investment Company Act), or (ii) in the event the Investment Management
Agreement between the Manager and the Corporation is assigned (as defined in the
Investment Company Act) or terminates for any other reason. This Agreement will
also terminate upon written notice to the other party that the other party is in
material breach of this Agreement, unless the other party in material breach of
this Agreement cures such breach to the reasonable satisfaction of the party
alleging the breach within thirty (30) days after written notice.
14. USE OF ADVISER'S NAME
The parties agree that the name of the Adviser, the names of any affiliates
of the Adviser and any derivative or logo or trademark or service ▇▇▇▇ or trade
name are the valuable property
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of the Adviser and its affiliates. The Manager and the Corporation shall have
the right to use such name(s), derivatives, logos, trademarks or service marks
or trade names only with the prior written approval of the Adviser, which
approval shall not be unreasonably withheld or delayed so long as this Agreement
is in effect.
Upon termination of this Agreement, the Manager and the Corporation shall
forthwith cease to use such name(s), derivatives, logos, trademarks or service
marks or trade names. The Manager and the Corporation agree that they will
review with the Adviser any advertisement, sales literature, or notice prior to
its use that makes reference to the Adviser or its affiliates or any such
name(s), derivatives, logos, trademarks, service marks or trade names so that
the Adviser may review the context in which it is referred to, it being agreed
that the Adviser shall have no responsibility to ensure the adequacy of the form
or content of such materials for purposes of the Investment Company Act or other
applicable laws and regulations. If the Manager or the Corporation makes any
unauthorized use of the Adviser's names, derivatives, logos, trademarks or
service marks or trade names, the parties acknowledge that the Adviser shall
suffer irreparable harm for which monetary damages may be inadequate and thus,
the Adviser shall be entitled to injunctive relief, as well as any other remedy
available under law.
15. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the rules
or regulations thereunder or pursuant to exemptive relief granted by the SEC,
this Agreement may be amended by the parties only if such amendment, if
material, is specifically approved by the vote of a majority of the outstanding
voting securities of the Portfolio (unless such approval is not required by
Section 15 of the Investment Company Act as interpreted by the SEC or its staff
or unless the SEC has granted an exemption from such approval requirement) and
by the vote of a majority of the Independent Directors cast in person at a
meeting called for the purpose of voting on such approval. The required
shareholder approval shall be effective with respect to the Portfolio if a
majority of the outstanding voting securities of the Portfolio vote to approve
the amendment, notwithstanding that the amendment may not have been approved by
a majority of the outstanding voting securities of any other Portfolio affected
by the amendment or all the Portfolios of the Corporation.
16. ASSIGNMENT
Any assignment (as that term is defined in the Investment Company Act) of
the Agreement made by the Adviser without the prior written consent of the
Corporation and the Manager shall result in the automatic termination of this
Agreement, as provided in Section 13 hereof. Notwithstanding the foregoing, no
assignment shall be deemed to result from any changes in the directors, officers
or employees of such Adviser except as may be provided to the contrary in the
Investment Company Act or the rules or regulations thereunder. The Adviser
agrees that it will notify the Corporation and the Manager of any changes in its
key employees within a reasonable time thereafter.
17. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to each Portfolio.
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18. HEADINGS
The headings in the sections of this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof.
19. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the address listed below of each applicable party in
person or by registered or certified mail or a private mail or delivery service
providing the sender with notice of receipt or such other address as specified
in a notice duly given to the other parties. Notice shall be deemed given on the
date delivered or mailed in accordance with this paragraph.
For: Enterprise Capital Management, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
1290 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
For: The Enterprise Group of Funds II, Inc.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President and Secretary
1290 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
For: UBS Global Asset Management
▇▇▇▇ ▇▇▇▇, Esq.
Director and Associate General Counsel
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
20. SEVERABILITY
Should any portion of this Agreement for any reason be held to be void in
law or in equity, the Agreement shall be construed, insofar as is possible, as
if such portion had never been contained herein.
21. CORPORATION AND SHAREHOLDER LIABILITY
The Manager and Adviser are hereby expressly put on notice of the
limitation of shareholder liability as set forth in the Articles and agree that
obligations assumed by the Corporation pursuant to this Agreement shall be
limited in all cases to the Corporation and its assets, and if the liability
relates to one or more series, the obligations hereunder shall be limited to the
respective assets of the Portfolio. The Manager and Adviser further agree that
they shall not seek satisfaction of any such obligation from the shareholders or
any individual shareholder of the Portfolio(s), nor from the Directors or any
individual Director of the Corporation.
22. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, or any of the applicable
provisions of the Investment Company Act. To the extent that the laws of the
State of New York, or any of the provisions in
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this Agreement, conflict with applicable provisions of the Investment Company
Act, the latter shall control.
23. INTERPRETATION
Any question of interpretation of any term or provision of this Agreement
having a counterpart in or otherwise derived from a term or provision of the
Investment Company Act shall be resolved by reference to such term or provision
of the Investment Company Act and to interpretations thereof, if any, by the
United States courts or, in the absence of any controlling decision of any such
court, by rules, regulations or orders of the SEC validly issued pursuant to the
Investment Company Act. Specifically, the terms "vote of a majority of the
outstanding voting securities," "interested persons," "assignment," and
"affiliated persons," as used herein shall have the meanings assigned to them by
Section 2(a) of the Investment Company Act. In addition, where the effect of a
requirement of the Investment Company Act reflected in any provision of this
Agreement is relaxed by a rule, regulation or order of the SEC, whether of
special or of general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first mentioned above.
ENTERPRISE CAPITAL MANAGEMENT, INC. UBS GLOBAL ASSET MANAGEMENT
(AMERICAS) INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- -----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President Managing Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
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APPENDIX A
TO
INVESTMENT ADVISORY AGREEMENT
The Manager shall pay the Adviser monthly compensation computed daily at an
annual rate equal to the following:
Portfolio Annual Advisory Fee
--------- -------------------
Enterprise Growth and Income Fund 0.30% of the Portfolio's average daily net
assets up to and including $100 million;
0.25% of the Portfolio's average daily net
assets over $100 million and up to and
including $200 million; and 0.20% of the
Portfolio's average daily net assets in
excess of $200 million.
Enterprise Strategic Allocation 0.40% of the Portfolio's average daily net
Fund assets up to and including $100 million; and
0.35% of the Portfolio's average daily net
assets in excess of $100 million.
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