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EXHIBIT (d)(ii)
GROWTH PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 1st day of February, 2001, 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. 025 of 1%
of the average of the daily closing net asset values of the Portfolio managed by
the Portfolio Manager during such month (that is, .30 of 1% per year) for the
first $1,000,000,000.00 under management and a sum equal to .0167 of 1% of the
average of daily closing net asset values for assets in excess of
$1,000,000,000.00 managed by the Portfolio Manager during such month (that is
.20 of 1% per year).
(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 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
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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 February 1,
2002 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.
(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:
by the Portfolio Manager: Montag & ▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
by the Adviser: Enterprise Capital Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
by the Portfolio: The Enterprise Group of Funds, Inc. 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.
(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 Growth
Portfolio.
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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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------- --------------------------------------
Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
ENTERPRISE ACCUMULATION TRUST
(SEAL)
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------- -------------------------------------
Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
MONTAG & ▇▇▇▇▇▇▇▇, INC.
(SEAL)
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
-------------------------- --------------------------------------
Secretary
