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EXHIBIT (D)(XII)
HIGH YIELD BOND FUND
OF
THE ENTERPRISE GROUP OF FUNDS, INC.
FUND MANAGER'S AGREEMENT
THIS AGREEMENT, made the 11th day of November, 1998, is among The
Enterprise Group of Funds, Inc. (the "Fund"), a Maryland corporation,
Enterprise Capital Management, Inc., a Georgia corporation (hereinafter
referred to as the "Adviser"), and ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Capital Management, a
California corporation, Dresdner RCM Global Investors LLC Company (hereinafter
referred to as the "Fund Manager").
BACKGROUND INFORMATION
(A) The Adviser has entered into an Investment Adviser's Agreement
dated as of September 14, 1987, 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 fund
managers to the Portfolios.
(B) The parties hereto wish to enter into an agreement whereby the
Fund Manager will provide to the High Yield Bond Fund of the Fund (the "High
Yield Fund") securities investment advisory services for the High Yield Fund.
WITNESSETH THAT:
In consideration of the mutual covenants herein contained, the Fund,
Adviser and the Fund Manager agree as follows:
(1) The Fund and Adviser hereby employ the Fund Manager
to render certain investment advisory services to the High Yield Fund, as set
forth herein. The Fund 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 Fund Manager shall furnish the High Yield Fund
advice with respect to the investment and reinvestment of the assets of the
High Yield Fund, or such portion of the assets of the High Yield Fund as the
Adviser shall specify from time to time, in accordance with the investment
objectives, restrictions and limitations applicable to the High Yield Fund
which are set forth in the Fund's most recent Registration Statement.
(3) The Fund Manager shall perform a monthly
reconciliation of the High Yield Fund 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 Fund Manager shall for all purposes herein be
deemed to be an independent contractor. The Fund Manager has no authority to
act for or represent the Fund or the Portfolios in any
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way except to direct securities transactions pursuant to its investment advice
hereunder. The Fund Manager is not an agent of the Fund or the Portfolios.
(5) It is understood that the Fund 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 Fund 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 value of the High Yield Fund managed by
the Fund Manager during such month (that is, 0.30 of 1% per year) for the first
$100,000,000 of assets under management; and a sum equal to 0.0208 of 1% of the
average of the daily closing net asset value of the High Yield Fund during such
month (that is, 0.25 of 1% per year) for assets over $100,000,000.
(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 High Yield Fund shares.
(7) The services of the Fund Manager hereunder are not
to be deemed to be exclusive, and the Fund 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 Fund Manager of its
responsibilities hereunder, it is agreed that the Fund 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 Fund Manager shall not
be liable to the Fund, the High Yield Fund or the Adviser or to any shareholder
or shareholders of the Fund, the High Yield Fund 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 Fund Manager hereunder.
(9) The Fund Manager will take necessary steps to prevent
the investment professionals of the Fund Manager who are responsible for
investing assets of the High Yield Fund from taking, at any time, a short
position in any shares of any holdings of the High Yield 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 Fund Manager also will cooperate with the Fund in
adopting a written policy prohibiting ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ with respect to High
Yield Fund transactions insofar as such transactions may relate to the Fund
Manager.
(10) In connection with the management of the investment
and reinvestment of the assets of the High Yield Fund, the Fund Manager is
authorized to select the brokers or dealers that will execute purchase and sale
transactions for the High Yield Fund, 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 High Yield Fund.
Subject to this primary requirement, and maintaining as its
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first consideration the benefits for the High Yield Fund and its shareholders,
the Fund 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
High Yield Fund, the Adviser, or the Fund 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.
(11) The Fund may terminate this Agreement by thirty (30)
days written notice to the Adviser and the Fund 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 Fund Manager
and the Fund 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 December 31,
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
Fund Manager, its officers and directors and each person, if any, who controls
the Fund 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 Fund 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 Fund 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 Fund Manager or such controlling persons.
The Fund 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 Fund Manager's willful misfeasance, bad
faith or gross negligence in the performance of its duties under this Fund
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 Fund Manager, the Fund 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 Fund Manager by the provisions of subsection (i)
and (ii) of this Paragraph 13.
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(14) Except as otherwise provided in Paragraph 13 hereof
and as may be required under applicable federal law, this Fund Manager's
Agreement shall be governed by the laws of the State of Georgia.
(15) The Fund Manager agrees to notify the parties within
a reasonable period of time regarding a material change in the membership of
the Fund 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 Fund Manager: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director and Chief Executive Officer
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Capital Management, Dresdner RCM Global Investors LLC
Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
by the Adviser: Enterprise Capital Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
by the Fund: 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 Fund Manager, the Adviser and the Fund relating to the High Yield
Fund.
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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.
THE ENTERPRISE GROUP OF FUNDS, INC.
(SEAL)
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
(SEAL)
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
▇▇▇▇▇▇▇-▇▇▇▇▇▇ CAPITAL MANAGEMENT,
DRESDNER RCM GLOBAL INVESTORS LLC
COMPANY
(SEAL)
ATTEST: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Secretary ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Managing Director
