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<TABLE>
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[X] Preliminary Information Statement [ ] Confidential, for Use of the Commission
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[ ] Definitive Information Statement
</TABLE>
Enterprise Accumulation Trust
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(ENTERPRISE ACCUMULATION TRUST LOGO)
December 3, 1999
Dear MONY Customer:
We are pleased to enclose an Information Statement relating to changes in
the Portfolio Managers for Enterprise Accumulation Trust's Enterprise Equity
Portfolio (the "Equity Portfolio"), Enterprise Capital Appreciation Portfolio
(the "Capital Appreciation Portfolio") and Enterprise Managed Portfolio (the
"Managed Portfolio"). Depending on which variable life policy or annuity
contract you own, one or more of these investment portfolios may not be
available to you.
The New Portfolio Managers
TCW Funds Management, Inc. ("TCW") was named Portfolio Manager of the
Equity Portfolio effective November 1, 1999, by the Board of Trustees of
Enterprise Accumulation Trust. TCW had assets under management in excess of $55
billion as of September 30, 1999.
Marsico Capital Management, LLC ("Marsico Capital") was named Portfolio
Manager of the Capital Appreciation Portfolio effective November 1, 1999, by the
Board of Trustees of Enterprise Accumulation Trust. Marsico Capital had assets
under management in excess of $9 billion as of September 30, 1999.
Sanford C. Bernstein & Co., Inc. ("Bernstein") was named Co-Portfolio
Manager of the Managed Portfolio effective November 1, 1999, by the Board of
Trustees of Enterprise Accumulation Trust. Bernstein had assets under management
in excess of $85 billion as of September 30, 1999. The current Portfolio
Manager, OpCap Advisors ("OpCap"), will continue to manage as Co-Portfolio
Manager.
TCW, Marsico Capital and Bernstein bring their investment management
expertise to the Equity, Capital Appreciation and Managed Portfolios of the
Enterprise family of 12 Portfolios. In selecting TCW, Marsico Capital and
Bernstein as Portfolio Managers, consideration was given to, among other
factors, the firms' investment management acumen and style in conjunction with
the investment objectives of the Equity, Capital Appreciation and Managed
Portfolios. There will be no change in the Equity, Capital Appreciation and
Managed Portfolios' investment objectives. However, TCW's, Marsico Capital's and
Bernstein's investment styles are distinct and will result in a modification of
investment strategies for their respective Portfolios.
Equity Portfolio
Using a bottom-up investment approach, TCW invests in large- and
medium-capitalization companies that have a long record of successful operations
in their core business. Looking for companies with a dominant position in a
niche business (e.g., technology, production or distribution), TCW also takes
the financial quality of the company into consideration. Prime candidates have
sound financial fundamentals and management that is committed to shareholder
interests.
The management fee paid by the Equity Portfolio to Enterprise Capital
Management, Inc. ("Enterprise Capital") will remain unchanged at 0.80% per year
of the first $400,000,000 of average
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daily assets under management, 0.75% per year of the next $400,000,000 of
average daily assets under management, and 0.70% per year of average daily
assets under management in excess of $800,000,000; and fees paid by Enterprise
Capital to TCW will be according to the following schedule: 0.40 of 1% per year
for the first $1,000,000,000 (one billion dollars) of assets under management
0.30% per year for assets under management in excess of $1,000,000,000 (one
billion dollars).
Capital Appreciation Portfolio
Marsico Capital's investment strategy blends top-down economic/industry
analysis with bottom-up stock selection and emphasizes large capitalization
growth companies. Marsico Capital specifically looks for those companies
exhibiting market expertise/dominance, above average unit growth or potential to
undergo positive change, a sustainable acceleration of revenues and earnings,
attractive valuation and excellent management.
The management fee paid by the Capital Appreciation Portfolio to
Enterprise Capital will remain unchanged at 0.75% of its average daily net
assets; however, fees paid by Enterprise Capital to Marsico Capital will be
revised to the following schedule: 0.45 of 1% per year for assets under
management.
Managed Portfolio
Using a bottom-up investment approach, Bernstein invests in large
capitalization companies that have a long record of successful operations in
their core business. In selecting stocks, Bernstein analyzes long-term expected
return and near-term stock performance in order to make adjustments to the
fund's mix as needed. In reviewing a company, analysts meet with management
and, if applicable, suppliers, clients, competitors and consultants. All this
is done to gain a deep understanding of their companies' future earnings and
cash flow prospects.
The management fee paid by the Managed Portfolio to Enterprise Capital
Management, Inc. ("Enterprise Capital") will remain unchanged at 0.80% per year
of the first $400,000,000 of average daily assets under management, 0.75% per
year of the next $400,000,000 of average daily assets under management, and
0.70% per year of average daily assets under management in excess of
$800,000,000; however, fees paid by Enterprise Capital to Bernstein will be
revised to the following schedule: 0.40 of 1% per year for the first $10,000,000
of assets under management; 0.30 of 1% per year for the next $40,000,000 of
assets under management; 0.20 of 1% per year for the next $50,000,000 of assets
under management; and 0.10% per year for assets in excess of $100,000,000; and
the fees paid by Enterprise Capital to OpCap will be according to the following
schedule: 0.40 of 1% per year for the first $1,000,000,000 (one billion dollars)
of assets under management; 0.30 of 1% per year for the next $1,000,000,000 (one
billion dollars) of assets under management up to $2,000,000,000 (two billion
dollars); and 0.25% of 1% per year for assets in excess of $2,000,000,000 (two
billion dollars).
We encourage you to read the attached Information Statement, which
more fully describes TCW, Marsico Capital and Bernstein, and the Board of
Trustees' approval of the new subadvisory agreements. The other material terms
of the subadvisory agreements are identical to the previous arrangements.
Enterprise Accumulation Trust looks forward to working with TCW, Marsico
Capital and Bernstein to assist you in working toward your investment goals.
Thank you for your continued support.
Sincerely,
/s/ VICTOR UGOLYN
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Victor Ugolyn,
Chairman, President, and Chief Executive Officer
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ENTERPRISE ACCUMULATION TRUST
EQUITY, CAPITAL APPRECIATION AND
MANAGED PORTFOLIOS
MONY LIFE INSURANCE COMPANY
MONY LIFE INSURANCE COMPANY OF AMERICA
MAIL DROP 9-34
1740 BROADWAY
NEW YORK, NEW YORK 10019
PRELIMINARY
INFORMATION STATEMENT
We are providing this information statement to the policyholders and
contractholders of Enterprise Accumulation Trust Enterprise Equity Portfolio
(the "Equity Portfolio"), Enterprise Capital Appreciation Portfolio (the
"Capital Appreciation Portfolio") and Enterprise Managed Portfolio (the
"Managed Portfolio") in lieu of a proxy statement, pursuant to the terms of an
exemptive order that Enterprise Accumulation Trust (the "Trust") has received
from the Securities and Exchange Commission. The order permits the Trust's
investment adviser, Enterprise Capital Management, Inc. ("Enterprise Capital"),
to hire new Portfolio Managers and to make changes to existing Portfolio
Manager contracts with the approval of the Trust's Board of Trustees, but
without obtaining policyholder or contractholder approval. WE ARE NOT ASKING
YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
Shares of beneficial interest ("Shares") of the Trust are presently
sold to MONY Life Insurance Company ("MONY") and its affiliate, MONY Life
Insurance Company of America ("MONY America") for allocation to variable
accounts established by MONY and MONY America (collectively the "Variable
Accounts") to provide benefits to holders ("Contractholders") of variable
annuity contracts and variable life insurance policies ("Contracts") issued by
those companies.
SHARE OWNERSHIP
The Equity, Capital Appreciation and Managed Portfolios are separate
series of shares of beneficial interest of the Trust. As of November 1, 1999,
there were 16,591,394 shares outstanding as to the Equity Portfolio, there were
3,249,079 shares outstanding as to the Capital Appreciation Portfolio, and there
were 68,758,267 shares outstanding as to the Managed Portfolio. The cost of this
information statement will be paid by the Trust.
As of November 1, 1999, MONY and MONY America owned all of the
outstanding shares of the Trust. Although shares held by the Variable Accounts
generally will be voted in accordance with instructions received from
Contractholders, if voting were required, the Trust might nevertheless be deemed
to be controlled by MONY and MONY America by virtue of the definition of
"control" contained in the Investment Company Act of 1940, as amended (the
"Investment Company Act"). MONY and MONY America disclaim such control.
To the knowledge of the Trust, as of November 1, 1999, no single person
or "group" (as such term is used in Section 13(d) of the Securities Exchange Act
of 1934), had the power to direct the vote of more than 5% of the Equity,
Capital Appreciation or Managed Portfolio's
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outstanding shares. As of November 1, 1999, Trustees and officers of the Trust
as a group beneficially owned none of the Trust's outstanding shares. This
information statement will be mailed on or about December 3, 1999.
THE TRUST
The Equity, Capital Appreciation, and Managed Portfolios are investment
portfolios of the Trust, a Massachusetts business trust. The Trust has entered
into an investment advisory agreement with Enterprise Capital dated July 1, 1999
(the "Adviser's Agreement"). Under the Adviser's Agreement, it is Enterprise
Capital's responsibility to select, subject to the review and approval by the
Board of Trustees, one or more subadvisers (the "Portfolio Managers") to manage
each investment portfolio of the Trust. The Adviser's Agreement also gives
Enterprise Capital the responsibility to review and monitor the performance of
the Portfolio Managers on an ongoing basis, and to recommend to the Board of
Trustees changes to the roster of Portfolio Managers as appropriate. Enterprise
Capital also is responsible for conducting all business operations of the Trust,
except those operations contracted to the Trust's custodian or transfer agent.
As compensation for these services, Enterprise Capital receives a fee from each
investment portfolio of the Trust, from which Enterprise Capital renders all
fees payable to the Portfolio Managers. The investment portfolios of the Trust,
therefore, pay no fees directly to the Portfolio Managers.
Enterprise Capital recommends Portfolio Managers for the portfolios to
the Board on the basis of its continuing quantitative and qualitative evaluation
of the Portfolio Manager's skills in managing assets pursuant to specific
investment styles and strategies in accordance with the objectives of each
portfolio. Short-term investment performance, by itself, is not a significant
factor in selecting or terminating a Portfolio Manager, and Enterprise Capital
does not expect to recommend frequent changes of Portfolio Managers.
The Portfolio Managers do not provide any services to the Portfolios
except portfolio investment management and related record-keeping services.
However, in accordance with the procedures adopted by the Board, the Portfolio
Managers, or their affiliated broker-dealers, may execute transactions for the
Equity, Capital Appreciation and Managed Portfolios and receive brokerage
commissions in connection therewith as permitted by Section 17(e) of the
Investment Company Act of 1940, as amended (the "1940 Act") and the rules
thereunder.
BOARD OF TRUSTEES' DECISION
At a meeting held on October 26, 1999, the Board, including a majority
of the non-interested Trustees, approved Enterprise Capital's recommendation to
replace OpCap Advisors ("OpCap") with a new Portfolio Manager for the Equity
Portfolio and to replace Provident Investment Counsel, Inc. ("Provident") with a
new Portfolio Manager for the Capital Appreciation Portfolio. The Board,
including a majority of the non-interested Trustees, also approved Enterprise
Capital's recommendation to add Sanford C. Bernstein & Co., Inc. ("Bernstein")
as a Co-Portfolio Manager of the Managed Portfolio along with OpCap.
Accordingly, the Board approved new Portfolio Manager Agreements (the "New
Agreements") with TCW Funds Management, Inc. ("TCW") for the Equity Portfolio,
Marsico Capital Management, LLC ("Marsico Capital") for the Capital Appreciation
Portfolio, and Bernstein along with OpCap for the Managed Portfolio. The Board's
decisions to replace OpCap and Provident on the Equity and Capital Appreciation
Portfolios, respectively, and to add Bernstein as a Co-Manager on the Managed
Portfolio along with OpCap were based on performance and divergent investment
strategies. In approving the New Agreements, the Board considered a
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number of factors, including, but not limited to: (i) the performance of the
Equity, Capital Appreciation and Managed Portfolios since they commenced
operations; (ii) the nature and quality of the services expected to be rendered
to the Equity, Capital Appreciation and Managed Portfolios by the Portfolio
Managers, (iii) that the material terms of the Portfolio Manager Agreements will
be unchanged under the New Agreements; (iv) the history, reputation,
qualification and background of the Portfolio Managers, as well as the
qualifications of their personnel. The Board considered these factors to be of
equal weight and importance.
Enterprise Capital made the recommendations to hire TCW, Marsico
Capital and Bernstein in the ordinary course of its ongoing evaluation of
Portfolio Manager performance and investment strategy. Enterprise Capital
conducted extensive research of numerous candidate firms and qualitative and
quantitative analysis of each candidate's organizational structure, investment
process and style, and long-term performance record. Enterprise Capital believes
that TCW's management style is appropriately suited to the Equity Portfolio,
that Marsico Capital's management style is appropriately suited to the Capital
Appreciation Portfolio and that Bernstein's management style is appropriately
suited to serving as the Co-Manager of the Managed Portfolio.
THE PORTFOLIO MANAGER AGREEMENTS
The Equity Portfolio
OpCap served as Portfolio Manager of the Equity Portfolio, pursuant to
a Portfolio Manager Agreement dated November 5, 1997 (the "Previous Agreement
for the Equity Portfolio"). Under the Adviser's Agreement, the Equity Portfolio
paid to Enterprise Capital a management fee at the rate of 0.80% of the average
of the daily closing net asset values of the Portfolio per year of assets up to
$400,000,000; at the rate of 0.75% of the average of the daily closing net asset
values of the Portfolio per year for assets from $400,000,000 to $800,000,000;
and at the rate of 0.70% of the average of the daily closing net asset values of
the Portfolio in excess of $800,000,000 per year, paid monthly, which at the
current asset level equaled 0.78% of its average daily net assets. From this
amount, under the Previous Agreement for the Equity Portfolio, Enterprise
Capital paid to OpCap fees equal to 0.40 of 1% of the Equity Portfolio's daily
net assets up to $1,000,000,000 (one billion dollars) and 0.30 of 1% thereafter
on the Equity Portfolio's average daily net assets. These fees will remain the
same under the New Agreement for the Equity Portfolio.
For the fiscal year ended December 31, 1998, the Equity Portfolio paid
to Enterprise Capital management fees in the amount of $4,523,391, of which
Enterprise Capital paid $2,305,888 to OpCap. If the New Agreement for the Equity
Portfolio had been in effect for 1998, the fee paid by Enterprise Capital to the
Portfolio Manager would have been the same.
The Capital Appreciation Portfolio
Provident served as Portfolio Manager of the Capital Appreciation
Portfolio, pursuant to a Portfolio Manager Agreement dated November 1998 (the
"Previous Agreement for the Capital Appreciation Portfolio"). Under the
Adviser's Agreement, the Capital Appreciation Portfolio paid to Enterprise
Capital a management fee equal to 0.75% of its average daily net assets. From
this amount, under the Previous Agreement for the Capital Appreciation
Portfolio, Enterprise Capital paid to Provident fees equal to 0.50 of 1% of the
Capital Appreciation Portfolio's daily net assets up to $100,000,000; 0.45% of
1% on the next $100,000,000; 0.35 of 1% on the next $100,000,000; and 0.30 of 1%
thereafter on the Capital Appreciation Portfolios' average daily net assets.
These fees will change under the New Agreement for the Capital Appreciation
Portfolio
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with Marsico Capital to: 0.45 of 1% per year of the average of the daily closing
net asset value of assets under management.
For the fiscal year ended December 31, 1998, the Capital Appreciation
Portfolio paid to Enterprise Capital management fees in the amount of $184, of
which Enterprise Capital paid $110 to Provident. If the New Agreement for the
Capital Appreciation Portfolio had been in effect for 1998, the fee paid by
Enterprise Capital to the Portfolio Manager would have been $110.
The Managed Portfolio
Under the New Agreements with Bernstein and OpCap, Bernstein and OpCap
are obligated to provide the same services to the Managed Portfolio as OpCap
alone provided under the Previous Agreement for the Managed Portfolio. In
addition, the New Agreements do not change the management fee paid by the
Managed Portfolio. Assets held in the Managed Portfolio as of November 1, 1999
were divided equally for management between OpCap and Bernstein. Net cash flows
into the Managed Portfolio/redemptions out of the Managed Portfolio will be
allocated on a 50/50 basis for management purposes going forward.
OpCap served as Portfolio Manager of the Managed Portfolio, pursuant to
a Portfolio Manager Agreement dated November 5, 1997 (the "Previous Agreement
for the Managed Portfolio"). Under the Adviser's Agreement, the Managed
Portfolio paid to Enterprise Capital a management fee at the rate of 0.80% of
the average of the daily closing net assets values of the Portfolio per year of
assets up to $400,000,000; at the rate of 0.75% of the average of the daily
closing net asset values of the Portfolio per year for assets from $400,000,000
to $800,000,000; and at the rate of 0.70% of the average of the daily closing
net asset values of the Portfolio in excess of $800,000,000 per year paid
monthly, which at the current asset level equaled 0.72% of its average daily net
assets.
From this amount, under the Previous Agreement for the Managed
Portfolio Enterprise Capital paid to OpCap fees equal to 0.40 of 1% of the
Managed Portfolio's daily net assets up to $1,000,000,000 (one billion dollars);
0.30 of 1% of the Managed Portfolio's daily net assets from $1,000,000,000 (one
billion dollars) up to $2,000,000,000 (two billion dollars); and 0.25 of 1%
thereafter on the Managed Portfolio's average daily net assets. These fees will
change under the New Agreement on the fifty-percent (50%) of the Managed
Portfolio that Bernstein manages to: 0.40 of 1% per year for the first
$10,000,000 of assets under management; 0.30 of 1% per year for the next
$40,000,000 of assets under management (up to $50,000,000); 0.20 of 1% per year
for the next $50,000,000 of assets under management (up to $100,000,000); and
0.10% per year for assets under management in excess of $100,000,000; and the
fees paid by Enterprise Capital to OpCap on the fifty-percent (50%) of the
Managed Portfolio that it manages will stay the same as under the previous
schedule: 0.40 of 1% per year for the first $1,000,000,000 (one billion dollars)
of assets under management; 0.30 of 1% per year for the next $1,000,000,000 (one
billion dollars) of assets under management up to $2,000,000,000 (two billion
dollars); and a sum equal to 0.25% per year for assets under management over
$2,000,000,000 (two billion dollars).
For the fiscal year ended December 31, 1998, the Managed Portfolio paid
to Enterprise Capital Management fees in the amount of $20,174,424, of which
Enterprise Capital paid $8,990,866 to OpCap. If the New Agreements for the
Managed Portfolio with Bernstein and OpCap had been in effect for 1998, the fee
paid by Enterprise Capital to Bernstein would have been $1,538,960, and the fee
paid by Enterprise Capital to OpCap would have been $5,136,879, for a total
sub-advisory fee of $6,675,839.
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The New Agreements with TCW, Marsico Capital, Bernstein and OpCap are
identical in form in all material respects to the Previous Agreements with the
exception of the revised Portfolio Manager fee schedules for Marsico Capital and
Bernstein. The form of the New Agreements with TCW, Marsico, Bernstein and OpCap
are attached to this Information Statement as Exhibits A, B, C and D,
respectively.
THE BOARD OF TRUSTEES' DECISION
In approving the New Agreements, the Board of Trustees considered a
number of material factors, including, but not limited to: that the terms and
conditions of the New Agreements are substantially identical to those of the
previous agreements for the Equity, Capital Appreciation and Managed
Portfolios, the performance of the Equity, Capital Appreciation and Managed
Portfolios, the quality of the services rendered by TCW, Marsico Capital and
Bernstein, and that the New Agreements will secure the continuity of such
services. The Board considered these factors to be of equal weight and
importance. On the basis of their review of the New Agreements and relevant
information, the Board concluded that the New Agreements are fair, reasonable
and in the best interests of the Contractholders of the Equity, Capital
Appreciation and Managed Portfolios. Accordingly, the Board of Trustees,
including the non-interested Trustees, unanimously approved the New Agreements.
INFORMATION ABOUT ENTERPRISE CAPITAL
Enterprise Capital, located at the Atlanta Financial Center, 3343
Peachtree Road, N.E., Suite 450, Atlanta, Georgia 30326-1022, serves as the
Investment Adviser and Administrator of the Trust. Enterprise Capital is a
second-tier subsidiary of The MONY Group Inc. and has more than $8 billion under
management as of October 31, 1999. Enterprise Fund Distributors, Inc. is the
Trust's principal underwriter, and its address is 3343 Peachtree Road N.E.,
Suite 450, Atlanta Georgia 30326-1022. Enterprise Capital also provides
investment advisory services to The Enterprise Group of Funds, Inc. The Equity
Fund has an identical investment objective to the Equity Portfolio, the Capital
Appreciation Fund has an identical investment objective to the Capital
Appreciation Portfolio and the Managed Fund has an identical investment
objective to the Managed Portfolio.
INFORMATION ON TCW, MARSICO CAPITAL AND BERNSTEIN
The following are descriptions of TCW, Marsico Capital and Bernstein,
which are based on information provided by TCW, Marsico Capital and Bernstein.
TCW, Marsico Capital and Bernstein are not affiliated with Enterprise Capital or
Enterprise Accumulation Trust other than by reason of serving as Portfolio
Managers to one or more Portfolios.
TCW
TCW's offices are located at 865 South Figueroa, Suite 1800, Los
Angeles, CA 90017. TCW has provided investment counseling since 1971. TCW's
assets under management for all clients were $55 billion as of September 30,
1999. Usual separate account investment minimum is $50 million. Glen E.
Bickerstaff is responsible for the day-to-day management of the Equity Portfolio
and is a Managing Director of TCW, which he joined in 1998. He has 19 years of
investment industry experience, and he previously served as Senior Portfolio
Manager and Vice President for Transamerica Investment Services.
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Marsico Capital
Marsico Capital's offices are located at 1200 17th Street, Suite 1300,
Denver, CO 80202. Marsico Capital has provided investment counseling since 1997.
Marsico Capital's assets under management for all clients were $9 billion as of
September 30, 1999. Usual separate account investment minimum is $100 million.
Thomas F. Marsico, Chairman and Chief Executive Officer, is responsible for the
day-to-day management of the Capital Appreciation Portfolio. Mr. Marsico founded
Marsico Capital in 1997. He previously served as Portfolio Manager for Janus
Capital Corp. from 1986-1997.
Bernstein
Bernstein's offices are located at 767 Fifth Avenue, New York, New York
10153-0185. Bernstein has provided investment counseling since 1967. Bernstein's
assets under management for all clients were $85 billion as of September 30,
1999. Usual separate account investment minimum is $5 million. A team led by
Steven Pisarkiewicz, Chief Investment Officer of Structured Equity Services is
responsible for the day-to-day management of Bernstein's portion of the Managed
Portfolio.
ADDITIONAL INFORMATION
To the knowledge of the Trust, as of November 1, 1999, no person
beneficially owned more than 5% of the outstanding shares of any of the Equity,
Capital Appreciation or Managed Portfolios. The Trust is not required to hold
annual meetings of Contractholders; therefore, it cannot be determined when the
next meeting of Contractholders will be held. Contractholder proposals intended
to be considered for inclusion in the proxy statement for the next meeting of
Contractholders must be received by the Trust a reasonable time before the proxy
statement is mailed. Whether a Contractholder proposal will be included in the
proxy statement will be determined in accordance with the applicable state and
federal laws.
Copies of the Trust's most recent annual and semi-annual reports are
available without charge. You may obtain a copy of these reports by calling
1-800-487-6669, or writing to The MONY Group Inc., 1740 Broadway, New York, New
York 10019.
By Order of the Board of Trustees,
Catherine R. McClellan, Secretary
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EXHIBIT A
EQUITY PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 26th day of October, 1999, 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 TCW Funds Management, Inc., a California Corporation,
(hereinafter referred to as the "Portfolio Manager").
BACKGROUND INFORMATION
(A) The Adviser has entered into an Investment Adviser's Agreement 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.
(B) The parties hereto wish to enter into an agreement whereby the
Portfolio Manager will provide to the Equity Portfolio of the Fund (the "Equity
Portfolio") securities investment advisory services for that Equity Portfolio.
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 Equity Portfolio, 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 Equity Portfolio
advice with respect to the investment and reinvestment of the assets of the
Equity Portfolio, or such portion of the assets of the Equity Portfolio as the
Adviser shall specify from time to time, in accordance with the investment
objectives, restrictions and limitations applicable to the Equity Portfolio
which are set forth in the Fund's most recent Registration Statement.
(3) The Portfolio Manager shall perform a monthly
reconciliation of the Equity 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
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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 Portfolios.
(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 (20) 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 Equity Portfolio managed by
the Portfolio Manager during such month (that is, 0.40 of 1% per year) for the
first $1 billion of assets under management; and a sum equal to 0.025 of 1% of
the average of the daily closing net asset value of the Equity Portfolio during
such month (that is, 0.30 of 1% per year) for assets under management over $1
billion.
(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 Equity Portfolio from taking, at any time, a short
position in any shares of any holdings of the Equity Portfolio 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 insider trading with respect to Equity 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 Equity 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
10
<PAGE> 12
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 Equity Portfolio and its shareholders, the Portfolio
Manager shall have the right, subject to the approval of the Board of Trustees
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 Equity
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.
(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 Trustees, 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 December 31,
2000 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 Trustees of the Fund, including a majority of those
Trustees 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 Trustees 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
11
<PAGE> 13
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 Paragraph 13.
(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) This Agreement is executed by the Trustees of the Fund,
not individually, but rather in their capacity as Trustees under the Declaration
of Trust made March 2, 1998. None of the Shareholders, Trustees, officers,
employees, or agents of the Fund shall be personally bound or liable under this
Agreement, nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder but only to the property of
the Fund and, if the obligation or claim relates to the property held by the
Fund for the benefit of one or more but fewer than all Portfolios, then only to
the property held for the benefit of the affected Portfolio.
(18) 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: TCW Funds Management, Inc.
865 South Figueroa Street, Suite 1800
Los Angeles, CA 90017
by the Adviser: Enterprise Capital Management, Inc.
3343 Peachtree Road, N.E., Suite 450
Atlanta, GA 30326-1022
by the Fund: The Enterprise Accumulation Trust c/o Enterprise
Capital Management, Inc.
3343 Peachtree Road, N.E., Suite 450
Atlanta, GA 30326-1022
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.
12
<PAGE> 14
(19) 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.
(20) This Agreement constitutes the entire agreement between
the Portfolio Manager, the Adviser and the Fund relating to the Equity
Portfolio.
13
<PAGE> 15
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 ACCUMULATION TRUST
(SEAL)
ATTEST: /s/CATHERINE R. MCCLELLAN By: /s/ VICTOR UGOLYN
------------------------- ----------------------------------
Secretary Victor Ugolyn, Chairman, President
and Chief Executive Officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
(SEAL)
ATTEST: /s/CATHERINE R. MCCLELLAN By: /s/ VICTOR UGOLYN
------------------------- ----------------------------------
Secretary Victor Ugolyn, Chairman, President
and Chief Executive Officer
TCW FUNDS MANAGEMENT, INC.
(SEAL)
ATTEST: /s/ By: /s/ MICHAEL E. CAHILL
------------------------------ ----------------------------------
Assistant Vice-President Michael E. Cahill, Vice President
(SEAL)
ATTEST: /s/ By: /s/ PATRICIA M. NAVIS
------------------------------ ----------------------------------
Assistant Vice-President Patricia M. Navis, Vice-President
14
<PAGE> 16
EXHIBIT B
CAPITAL APPRECIATION PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 1st day of November, 1999, 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 Marsico Capital Management, LLC, a Colorado LLC, (hereinafter
referred to as the "Portfolio Manager").
BACKGROUND INFORMATION
(A) The Adviser has entered into an Investment Adviser's Agreement 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.
(B) The parties hereto wish to enter into an agreement whereby the
Portfolio Manager will provide to the Capital Appreciation Portfolio of the Fund
(the "Capital Appreciation Portfolio") securities investment advisory services
for that Capital Appreciation Portfolio.
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 Capital Appreciation
Portfolio, 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 Capital
Appreciation Portfolio advice with respect to the investment and reinvestment of
the assets of the Capital Appreciation Portfolio, or such portion of the assets
of the Capital Appreciation Portfolio as the Adviser shall specify from time to
time, with full discretion in accordance with the investment objectives,
restrictions and limitations applicable to the Capital Appreciation Portfolio
which are set forth in the Fund's most recent Registration Statement.
(3) The Portfolio Manager shall perform a monthly
reconciliation of the Capital Appreciation 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
15
<PAGE> 17
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 portfolios.
(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 (20) day
after the close of each calendar month, a sum equal to 0.0375 of 1% of the
average of the daily closing net asset value of the Capital Appreciation
Portfolio managed by the Portfolio Manager during such month (that is, 0.45 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 Capital Appreciation Portfolio from taking, at any time,
a short position in any shares of any holdings of the Capital Appreciation
Portfolios 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 insider
trading with respect to Capital Appreciation 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 Capital Appreciation 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 Capital Appreciation
16
<PAGE> 18
Portfolio and its shareholders, the Portfolio Manager shall have the right,
subject to the approval of the Board of Trustees 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 Capital Appreciation 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.
(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 Trustees, 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 December 31,
2000 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 Trustees of the Fund, including a majority of those
Trustees 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 Trustees 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
17
<PAGE> 19
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
Paragraph 13.
(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.
(19) 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.
(20) This Agreement is executed by the Trustees of the Fund,
not individually, but rather in their capacity as Trustees under the Declaration
of Trust made March 2, 1998. None of the Shareholders, Trustees, officers,
employees, or agents of the Fund shall be personally bound or liable under this
Agreement, nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder but only to the property of
the Fund and, if the obligation or claim relates to the property held by the
Fund for the benefit of one or more but fewer than all Portfolios, then only to
the property held for the benefit of the affected Portfolio.
(21) 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: Marsico Capital Management, LLC
1200 17th Street, Suite 1300
Denver, CO 80202
by the Adviser: Enterprise Capital Management, Inc.
3343 Peachtree Road, N.E., Suite 450
Atlanta, GA 30326-1022
by the Fund: The Enterprise Accumulation Trust c/o Enterprise
Capital Management, Inc.
3343 Peachtree Road, N.E., Suite 450
Atlanta, GA 30326-1022
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.
(19) 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.
(20) This Agreement constitutes the entire agreement between
the Portfolio Manager, the Adviser and the Fund relating to the Capital
Appreciation Portfolio.
18
<PAGE> 20
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 ACCUMULATION TRUST
(SEAL)
ATTEST: /s/CATHERINE R. MCCLELLAN By: /s/VICTOR UGOLYN
------------------------- ----------------------------------
Secretary Victor Ugolyn, Chairman, President
and Chief Executive Officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
(SEAL)
ATTEST: /s/CATHERINE R. MCCLELLAN By: /s/VICTOR UGOLYN
------------------------- ----------------------------------
Secretary Victor Ugolyn, Chairman, President
and Chief Executive Officer
MARSICO CAPITAL MANAGEMENT, LLC
(SEAL)
ATTEST: /s/CHRISTOPHER J. MARSICO By: /s/BARBARA M. JAPHA
------------------------- ----------------------------------
Title:COO / Secretary Name: Barbara M. Japha
------------------- --------------------------------
Title: President
--------------------------------
19
<PAGE> 21
EXHIBIT C
MANAGED PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 26th day of October, 1999, 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 Sanford C. Bernstein & Co., Inc., a New York corporation,
(hereinafter referred to as the "Portfolio Manager").
BACKGROUND INFORMATION
(A) The Adviser has entered into an Investment Adviser's Agreement 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.
(B) The parties hereto wish to enter into an agreement whereby the
Portfolio Manager will provide to the Managed Portfolio of the Fund (the
"Managed Portfolio") securities investment advisory services for that Managed
Portfolio.
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 Managed Portfolio, 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 Managed Portfolio
advice with respect to the investment and reinvestment of the assets of the
Managed Portfolio, or such portion of the assets of the Managed Portfolio as the
Adviser shall specify from time to time, in accordance with the investment
objectives, restrictions and limitations applicable to the Managed Portfolio
which are set forth in the Fund's most recent Registration Statement.
(3) The Portfolio Manager shall perform a monthly
reconciliation of the Managed 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
20
<PAGE> 22
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 portfolios.
(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 (20) day
after the close of each calendar month, a sum equal to 0.03333 of 1% of the
average of the daily closing net asset value of the Managed Portfolio managed by
the Portfolio Manager during such month (that is, 0.40 of 1% per year) for the
first $10,000,000 of assets under management; and a sum equal to 0.025 of 1% of
the average of the daily closing net asset value of the Managed Portfolio during
such month (that is, 0.30 of 1% per year) for the next $40,000,000 of assets
under management (up to $50,000,000); and a sum equal to 0.0166667 of 1% of the
average of the daily closing net asset value of the Managed Portfolio during
such month (that is 0.20 of 1% per year) for the next $50,000,000 of assets
under management (up to $100,000,000); and a sum equal to 0.0083333 of 1% of the
average of the daily closing net asset value of the Managed Fund during such
month (that is 0.10% per year) for assets under management 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
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 Managed Portfolio from taking, at any time, a short
position in any shares of any holdings of the Managed Portfolio or 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
21
<PAGE> 23
prohibiting insider trading with respect to Managed 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 Managed 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 Managed Portfolio and its shareholders, the Portfolio Manager shall have the
right, subject to the approval of the Board of Trustees 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 Managed 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.
In lieu of selecting broker-dealers to execute
transactions for the Managed Portfolio, the Portfolio Manager may execute such
transactions for the Managed Portfolio provided that it "steps-out" such
transactions to the broker-dealers selected by the Portfolio Manager. A
step-out is a service provided by the New York Stock Exchange and other
markets which allows the Portfolio Manager to provide the Managed Portfolio
with the benefit of the Portfolio Manager's execution capabilities at no
additional charge and then transfer or step-out the confirmation and
settlement responsibilities of such transactions to the broker-dealer(s)
selected by the Portfolio Manager. In connection with a step-out, transaction
charges shall be paid by the Managed Portfolio to the broker-dealers selected
by the Portfolio Manager and not to the Portfolio Manager.
In addition to selecting brokers or dealers to execute
transactions for the Managed Portfolio, the Portfolio Manager may, subject to
obtaining best execution, also act as a broker for the Managed Portfolio from
time to time at rates not exceeding the usual and customary broker's commission.
Under Federal law, the Portfolio Manager must obtain the Fund's and the
Adviser's consent to effect agency cross transactions for the Managed Portfolio,
which consent is hereby granted. The Portfolio Manager represents, warrants and
covenants that all agency cross transactions for the Managed Portfolio will be
effected by the Portfolio Manager strictly in accordance with Rule 206(3)-2
under the Investment Advisers Act of 1940. An agency cross transaction is where
the Portfolio Manager purchases or sells securities from or to a non-managed
account on behalf of a client's managed account. Pursuant to this consent, the
Portfolio Manager will only effect an agency cross transaction for the Managed
Portfolio with a non-managed account. When the Portfolio Manager crosses
transactions in connection with a step-out, the Portfolio Manager will receive a
commission from the transaction only with respect to the non-managed account and
will not receive a commission from the transaction with respect to the Managed
Portfolio. In an agency cross transaction where the Portfolio Manager acts as
broker for the Managed Portfolio, the Portfolio Manager receives commissions
from both sides of the trade and there is a potentially conflicting division of
loyalties and responsibilities. However, as both sides to the trade want to
execute the transaction at the best price without moving the market price in
either direction, the Portfolio Manager believes that an agency cross
transaction will aid both sides to the trade in obtaining the best price for the
trade. THE FUND OR THE ADVISER MAY REVOKE THIS CONSENT BY WRITTEN NOTICE TO THE
PORTFOLIO MANAGER AT ANY TIME.
22
<PAGE> 24
(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 Trustees, 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 December 31,
2000 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 Trustees of the Fund, including a majority of those
Trustees 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 Trustees 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
23
<PAGE> 25
have the rights and duties given to the Portfolio Manager by the provisions of
subsection (i) and (ii) of this Paragraph 13.
This Agreement is executed by the Trustees of the Fund, not individually,
but rather in their capacity as Trustees under the Declaration of Trust made
March 2, 1998. None of the Shareholders, Trustees, officers, employees, or
agents of the Fund shall be personally bound or liable under this Agreement, nor
shall resort be had to their private property for the satisfaction of any
obligation or claim hereunder but only to the property of the Fund and, if the
obligation or claim relates to the property held by the Fund for the benefit of
one or more but fewer than all Portfolios, then only to the property held for
the benefit of the affected Portfolio.
(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 Fund Manager: Sanford C. Bernstein & Co., Inc.
767 Fifth Avenue
New York, New York 10153-0185
by the Adviser: Enterprise Capital Management, Inc.
3343 Peachtree Road, N.E., Suite 450
Atlanta, GA 30326-1022
by the Fund: The Enterprise Accumulation Trust c/o Enterprise
Capital Management, Inc.
3343 Peachtree Road, N.E., Suite 450
Atlanta, GA 30326-1022
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 Managed
Portfolio.
24
<PAGE> 26
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 ACCUMULATION TRUST
(SEAL)
ATTEST: /s/CATHERINE R. MCCLELLAN By:/s/VICTOR UGOLYN
------------------------- ----------------------------------
Secretary Victor Ugolyn, Chairman, President
and Chief Executive Officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
(SEAL)
ATTEST: /s/CATHERINE R. MCCLELLAN By:/s/VICTOR UGOLYN
------------------------- ----------------------------------
Secretary Victor Ugolyn, Chairman, President
and Chief Executive Officer
SANFORD C. BERNSTEIN & CO., INC.
(SEAL)
ATTEST: /s/ By:/s/ROGER HERTOG
------------------------- ----------------------------------
Title: Senior Vice Name: Roger Hertog
President & --------------------------------
Secretary Title: President
------------------- --------------------------------
25
<PAGE> 27
EXHIBIT D
MANAGED PORTFOLIO
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 1st day of November, 1999, 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 OpCap Advisors, a Delaware general partnership, (hereinafter
referred to as the "Portfolio Manager").
BACKGROUND INFORMATION
(A) The Adviser has entered into an Investment Adviser's Agreement 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.
(B) The parties hereto wish to enter into an agreement whereby the
Portfolio Manager will provide to the Managed Portfolio of the Fund (the
"Managed Portfolio") securities investment advisory services for that Managed
Portfolio.
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 Managed Portfolio, 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 Managed Portfolio
advice with respect to the investment and reinvestment of the assets of the
Managed Portfolio, or such portion of the assets of the Managed Portfolio as the
Adviser shall specify from time to time, in accordance with the investment
objectives, restrictions and limitations applicable to the Managed Portfolio
which are set forth in the Fund's most recent Registration Statement.
(3) The Portfolio Manager shall perform a monthly
reconciliation of the Managed 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.
26
<PAGE> 28
(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 portfolios.
(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 (20) day
after the close of each calendar month, a sum equal to 0.03333 of 1% of the
average of the daily closing net asset value of the Managed Portfolio managed by
the Portfolio Manager during such month (that is, 0.40 of 1% per year) for the
first $1,000,000,000 (one billion dollars) of assets under management; and a sum
equal to 0.025 of 1% of the average of the daily closing net asset value of the
Managed Portfolio during such month (that is, 0.30 of 1% per year) for the next
$1,000,000,000 (one billion dollars) of assets under management up to
$2,000,000,000 (two billion dollars); and a sum equal to 0.02083 of 1% of the
average of the daily closing net asset value of the Managed Portfolio during
such month (that is 0.25 of 1% per year) for assets under management over
$2,000,000,000 (two billion dollars).
(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 Managed Portfolio from taking, at any time, a short
position in any shares of any holdings of the Managed Portfolio or 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
27
<PAGE> 29
insider trading with respect to Managed 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 Managed 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 Managed Portfolio and its shareholders, the Portfolio Manager shall have the
right, subject to the approval of the Board of Trustees 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 Managed Portfolio, the Adviser,
or the Portfolio Manager and, subject to the Conduct Rules of the National
Association of Securities Dealers, Inc.
(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 Trustees, 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 December 31,
2000 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 Trustees of the Fund, including a majority of those
Trustees 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 Trustees 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.
28
<PAGE> 30
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 Paragraph 13.
(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) This Agreement is executed by the Trustees of the Fund,
not individually, but rather in their capacity as Trustees under the Declaration
of Trust made March 2, 1998. None of the Shareholders, Trustees, officers,
employees, or agents of the Fund shall be personally bound or liable under this
Agreement, nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder but only to the property of
the Fund and, if the obligation or claim relates to the property held by the
Fund for the benefit of one or more but fewer than all Portfolios, then only to
the property held for the benefit of the affected Portfolio.
(18) 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: OpCap Advisors
1345 Avenue of the Americas
47th Floor
New York, New York 10105-4800
by the Adviser: Enterprise Capital Management, Inc.
3343 Peachtree Road, N.E., Suite 450
Atlanta, GA 30326-1022
by the Fund: The Enterprise Accumulation Trust c/o Enterprise
Capital Management, Inc.
3343 Peachtree Road, N.E., Suite 450
Atlanta, GA 30326-1022
29
<PAGE> 31
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.
(19) 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.
(20) This Agreement constitutes the entire agreement between
the Portfolio Manager, the Adviser and the Fund relating to the Managed
Portfolio.
30
<PAGE> 32
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 ACCUMULATION TRUST
(SEAL)
ATTEST: /s/CATHERINE R. MCCLELLAN By: /s/VICTOR UGOLYN
------------------------- ----------------------------------
Secretary Victor Ugolyn, Chairman, President
and Chief Executive Officer
ENTERPRISE CAPITAL MANAGEMENT, INC.
(SEAL)
ATTEST: /s/CATHERINE R. MCCLELLAN By: /s/VICTOR UGOLYN
------------------------- ----------------------------------
Secretary Victor Ugolyn, Chairman, President
and Chief Executive Officer
OPCAP ADVISORS
(SEAL)
ATTEST: By:
------------------------- ----------------------------------
Title Name
-------------------- ----------------------------------
Title:
--------------------------------
31
