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INFORMATION STATEMENT PURSUANT TO SECTION 14(C)
OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. )
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<TABLE>
<S> <C>
[ ] Preliminary Information Statement [ ] Confidential, for Use of the Commission
Only (as permitted by Rule 14c-5(d)(2))
[X] Definitive Information Statement
</TABLE>
Enterprise Accumulation Trust
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(Name of Registrant As Specified in Charter)
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(ENTERPRISE LETTERHEAD)
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December 8, 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 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
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(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
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
---------------------
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 dated December 10, 1996 (the "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 outstanding shares. As of November 1, 1999,
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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 8, 1999.
THE TRUST
The Equity, Capital Appreciation, and Managed Portfolios are investment
portfolios of the Trust, a Massachusetts business trust. The Trust has an
investment advisory agreement with Enterprise Capital that was restated
according to its original terms on July 1, 1999 (the "Adviser's Agreement") at
the time of the addition of new portfolios to the Trust. 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 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
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rendered to the Equity, Capital Appreciation and Managed Portfolios by the
Portfolio Managers, (iii) 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"), which was approved by a special meeting of
Contractholders held on April 28, 1997. At the same meeting the Contractholders
approved a proposal to permit Enterprise Capital to enter into new or amended
contracts with Portfolio Managers without obtaining Contractholder approval.
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 effective December 1, 1998
(the "Previous Agreement for the Capital Appreciation Portfolio"). The date of
inception of the Capital Appreciation Portfolio was December 1, 1998, at which
time its sole shareholder approved the Advisor's Agreement. 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%
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thereafter on the Capital Appreciation Portfolios' average daily net assets.
These fees will change under the New Agreement for the Capital Appreciation
Portfolio 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"), which was approved by a special meeting of
Contractholders held on April 28, 1997. At the same meeting the Contractholders
approved a proposal to permit Enterprise Capital to enter into new or amended
contracts with Portfolio Managers without obtaining Contractholder approval.
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
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OpCap would have been $5,136,879, for a total sub-advisory fee of $6,675,839.
Furthermore, during the fiscal year ended December 31, 1998, the Trust executed
certain trades through Oppenheimer Capital, which was a Broker/Dealer affiliated
with OpCap. These trades resulted in Oppenheimer Capital receiving $511,849 in
commissions, of which $429,484 related to the Managed Portfolio and $82,365
related to the Equity Portfolio.
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 the fact 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 past performance of the Equity, Capital Appreciation and Managed Portfolios,
the quality of the services expected to be rendered by TCW, Marsico Capital and
Bernstein, and the fact 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. The President and Chief Executive
Officer of Enterprise Capital is Victor Ugolyn, who also serves as the Chairman
of its Board of Directors. The only other Director is Catherine R. McClellan who
also serves as the Senior Vice President and Secretary of Enterprise Capital.
Enterprise Capital is a second-tier subsidiary of The MONY Group Inc. and a
first-tier subsidiary of MONY. Enterprise Capital had 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. As of November 1, 1999, there were 2,903,140
shares of the Equity Fund outstanding, 4,068,686 shares of the Capital
Appreciation Fund outstanding, and there were 41,326,953 shares of the Managed
Fund outstanding. Enterprise Capital is compensated for serving as the
Investment adviser to these Funds by receiving 0.75% of the average daily
closing net assets of each Fund per year. Enterprise Capital has contractually
agreed to limit the combination of its advisory fees and the fund expenses for
the Equity Fund through May 1, 2000. Each Fund has the same Portfolio Manager as
its respective Portfolio, and the Portfolio Managers receive similar
compensation for providing services to such Funds. Additionally, Marsico Capital
and TCW manage similar funds for their direct clients. The Marsico Capital Focus
Fund carries a management fee of 0.85%, and the TCW Core Equity Fund carries a
management fee of 1.00%.
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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.
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 or the portfolios in any way
A-1
<PAGE> 11
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 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
A-2
<PAGE> 12
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 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.
A-3
<PAGE> 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:
<TABLE>
<S> <C>
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
</TABLE>
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 Equity
Portfolio.
A-4
<PAGE> 14
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.
<TABLE>
<S> <C>
(SEAL) ENTERPRISE ACCUMULATION TRUST
ATTEST: /s/ CATHERINE R. MCCLELLAN By: /s/ VICTOR UGOLYN
---------------------------------------- -------------------------------------------
Secretary Victor Ugolyn, Chairman, President and
Chief Executive Officer
(SEAL) ENTERPRISE CAPITAL MANAGEMENT, INC.
ATTEST: /s/ CATHERINE R. MCCLELLAN By: /s/ VICTOR UGOLYN
---------------------------------------- -------------------------------------------
Secretary Victor Ugolyn, Chairman, President and
Chief Executive Officer
(SEAL) TCW FUNDS MANAGEMENT, INC.
ATTEST: /s/ MARK GLANCY By: /s/ MICHAEL E. CAHILL
---------------------------------------- -------------------------------------------
Assistant Vice-President Michael E. Cahill, Vice President
(SEAL)
ATTEST: /s/ MARK GLANCY By: /s/ PATRICIA M. NAVIS
---------------------------------------- -------------------------------------------
Assistant Vice-President Patricia M. Navis, Vice-President
</TABLE>
A-5
<PAGE> 15
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 or the portfolios in any way
B-1
<PAGE> 16
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 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
B-2
<PAGE> 17
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 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.
B-3
<PAGE> 18
(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:
<TABLE>
<S> <C>
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
</TABLE>
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.
B-4
<PAGE> 19
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.
<TABLE>
<S> <C>
(SEAL) ENTERPRISE ACCUMULATION TRUST
ATTEST: /s/ CATHERINE R. MCCLELLAN By: /s/ VICTOR UGOLYN
---------------------------------------- -------------------------------------------
Secretary Victor Ugolyn, Chairman, President and
Chief Executive Officer
(SEAL) ENTERPRISE CAPITAL MANAGEMENT, INC.
ATTEST: /s/ CATHERINE R. MCCLELLAN By: /s/ VICTOR UGOLYN
---------------------------------------- -------------------------------------------
Secretary Victor Ugolyn, Chairman, President and
Chief Executive Officer
(SEAL) MARSICO CAPITAL MANAGEMENT, LLC
ATTEST: /s/ CHRISTOPHER J. MARSICO By: /s/ BARBARA M. JAPHA
---------------------------------------- --------------------------------------------
Title: COO/Secretary Name: Barbara M. Japha
Title: President
</TABLE>
B-5
<PAGE> 20
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 or the portfolios in any way
C-1
<PAGE> 21
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 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
C-2
<PAGE> 22
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.
(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
C-3
<PAGE> 23
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
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.
C-4
<PAGE> 24
(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:
<TABLE>
<S> <C>
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
</TABLE>
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.
C-5
<PAGE> 25
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.
<TABLE>
<S> <C>
(SEAL) ENTERPRISE ACCUMULATION TRUST
ATTEST: /s/ CATHERINE R. MCCLELLAN By: /s/ VICTOR UGOLYN
---------------------------------------- -------------------------------------------
Secretary Victor Ugolyn, Chairman, President and
Chief Executive Officer
(SEAL) ENTERPRISE CAPITAL MANAGEMENT, INC.
ATTEST: /s/ CATHERINE R. MCCLELLAN By: /s/ VICTOR UGOLYN
---------------------------------------- -------------------------------------------
Secretary Victor Ugolyn, Chairman, President and
Chief Executive Officer
(SEAL) SANFORD C. BERNSTEIN & CO., INC.
ATTEST: /s/ JEAN MARGO REID By: /s/ ROGER HERTOG
---------------------------------------- -------------------------------------------
Title: Senior Vice President & Secretary Name: Roger Hertog
Title: President
</TABLE>
C-6
<PAGE> 26
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.
(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
D-1
<PAGE> 27
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 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
D-2
<PAGE> 28
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.
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
D-3
<PAGE> 29
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:
<TABLE>
<S> <C>
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
</TABLE>
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.
D-4
<PAGE> 30
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.
<TABLE>
<S> <C>
(SEAL) ENTERPRISE ACCUMULATION TRUST
ATTEST: /s/ CATHERINE R. MCCLELLAN By: /s/ VICTOR UGOLYN
---------------------------------------- -------------------------------------------
Secretary Victor Ugolyn, Chairman, President and
Chief Executive Officer
(SEAL) ENTERPRISE CAPITAL MANAGEMENT, INC.
ATTEST: /s/ CATHERINE R. MCCLELLAN By: /s/ VICTOR UGOLYN
---------------------------------------- -------------------------------------------
Secretary Victor Ugolyn, Chairman, President and
Chief Executive Officer
(SEAL) OPCAP ADVISORS
ATTEST: By:
---------------------------------------- -------------------------------------------
Title: Name:
Title:
</TABLE>
D-5
