EXHIBIT (D) (IX)
INTERNATIONAL GROWTH FUND
OF
THE ENTERPRISE GROUP OF FUNDS, INC.
FUND MANAGER'S AGREEMENT
THIS AGREEMENT, made the 17th day of June, 2002, 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 SSgA Funds Management, Inc., a Massachusetts corporation
(hereinafter referred to as the "Fund Manager").
BACKGROUND INFORMATION
(A) The Adviser has entered into an Investment Adviser's
Agreement dated as of May 1, 1993, 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 series 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
series of the Fund.
(B) The parties hereto wish to enter into an agreement
(the "Agreement") whereby the Fund Manager will provide to the International
Growth Fund of the Fund (the "Series") securities investment advisory services
for that Fund, subject to requisite approvals under the Investment Company Act
of 1940. The Fund is registered under the Investment Company Act of 1940 (the
"1940 Act"); the Adviser and the Fund Manager are registered under the
Investment Advisers Act of 1940.
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 Series, 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 Series advice with
respect to the investment and reinvestment of the assets of the Series, 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 series as set forth in the Fund's most recent Registration Statement and
the Fund's governing documents which have been provided to the Fund Manager.
(3) The Fund Manager shall perform a monthly
reconciliation of the 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. Except as provided herein, the Fund
Manager has no authority to act for or represent the Fund or the Series in any
way except to direct securities transactions pursuant to its investment advice
hereunder. The Fund Manager is not an agent of the Fund or the Series.
Nevertheless, the Fund Manager may, in accordance with Section 10 hereof, open
such accounts and complete such documentation on behalf of the Series with those
brokers, dealers and other financial intermediaries selected as provided herein
as may be necessary to carry out the intent of this Agreement.
(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 Series.
(6)(a) The Adviser agrees to pay as compensation to 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 0.033 of 1% of
the average of the daily closing net asset value of the Series managed by the
Fund Manager during such month (that is, 0.40 of 1% per year) for the first
$100,000,000 of assets under management; a sum equal to 0.029 of 1% of the
average of the daily closing net asset value of the Series during such month
(that is, 0.35 of 1% per year) for assets between $100,000,000 to $200,000,000
under management; and a sum equal to 0.025 of 1% of the average of the daily
closing net asset value of the Series during such month (that is, 0.30 of 1% per
year) for assets between $200,000,000 and $500,000,000; and a sum equal to
0.0208 of 1% (that is, 0.25% per year) for assets in excess of $500,000,000.
(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 Series 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
Series' 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. The Fund Manager may, from time to time hereafter, act as
investment adviser to one or more other investment companies and fiduciary or
other managed accounts, provided that when the Fund Manager purchases or sells
securities of the same issuer on behalf of two or more advisory clients, the
available securities will be allocated in a manner believed by the Fund Manager
to be equitable to each client.
(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 Series or the Adviser or to any shareholder or
shareholders of the Fund, the Series 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 Fund from taking, at any time, a short position in any
shares of any holdings of the Series managed by the Fund Manager 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 has adopted a code of ethics
complying with the requirements of Rule 17j-1 of the Securities and Exchange
Commission under the 1940 Act and has provided true and complete copies of such
code to the Series and to the Adviser, and has adopted procedures designed to
prevent violations of such code.
(10) In connection with the management of the investment
and reinvestment of the assets of the Fund, the Fund Manager is authorized to
select the brokers or dealers (including affiliates of the Fund Manager in
accordance with requirements of the ▇▇▇▇ ▇▇▇) that will execute purchase and
sale transactions for the 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 Fund securities for the Fund. Subject to this
primary requirement, and maintaining as its first consideration the benefits for
the Funds 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 Fund, the Adviser, or the Fund Manager and,
subject to applicable law and regulation, to select brokers and dealers who sell
shares of series of the Fund.
(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 1940 Act, 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 June 17, 2003
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 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 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, each of 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, 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 from the Indemnified Party's performance or non-performance of any
duties under this Agreement. 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, claim, 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 section.
(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 1940 Act 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: SSgA Funds Management, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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) Each of the Fund and the Adviser represents and
warrants that (a) it has received a copy of Part II of the Fund Manager's Form
ADV; (b) it has full corporate power and authority to enter into this Agreement
(including the power and authority to appoint the Fund Manager hereunder) and to
carry out its terms; and (c) the Fund is either (i) excluded from the definition
of the term "pool" under Section 4.5 of the General Regulations under the
Commodity Exchange Act ("Rule 4.5"), or (ii) a qualifying entity under Rule
4.5(b) for which a notice of eligibility has been filed.
(20) The Fund Manager shall vote all proxies appurtenant
to securities which are a part of the assets of the Series which the Fund
Manager manages in accordance with the Fund Manager's proxy voting guidelines
previously provided to the Adviser.
(21) This Agreement constitutes the entire agreement
between the Fund Manager, the Adviser and the Fund relating to the Series.
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.
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- -----------------------------------
Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- -----------------------------------
Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
SSGA FUNDS MANAGEMENT, INC.
ATTEST: By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------- -----------------------------------
Secretary ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President