EXHIBIT D
INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT
BETWEEN CONSECO STOCKCAR STOCKS MUTUAL FUND, INC.
AND
CONSECO CAPITAL MANAGEMENT, INC.
THIS INVESTMENT ADVISORY AGREEMENT is entered into as of this 28th day
of April, 2000, by and between Conseco StockCar Stocks Mutual Fund, Inc. (the
"Company"), a Maryland corporation, and Conseco Capital Management, Inc. (the
"Adviser"), a Delaware corporation.
WITNESSETH:
WHEREAS, the Company is registered under the Investment Company Act of
1940, as amended (the " 1940 Act"), as an open-end diversified management
investment company;
WHEREAS, the Company is authorized to issue various series of shares,
each of which represents a separate diversified portfolio of investments, and
may establish additional series of shares (each series now or hereafter listed
on Schedule A hereto, as such schedule may be amended from time to time, shall
be referred to herein as a "Fund");
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940;
WHEREAS, the Company desires to retain the Adviser to render investment
advice and furnish portfolio management services to each Fund; and
WHEREAS, the Adviser is willing to render such advice and furnish such
services pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties mutually agree as follows:
1. EMPLOYMENT; DUTIES OF THE ADVISER. (a) The Company hereby employs
the Adviser as investment adviser of each Fund. The Adviser hereby accepts such
employment and agrees to provide the services set forth herein in return for the
compensation under Paragraph 8.
(b) Subject to the supervision and direction of the Board of
Directors of the Company (the "Directors"), the Adviser shall provide a
continuous investment program for each Fund and shall, as part of its duties
hereunder, (i) furnish investment research and management with respect to the
investment of the assets of each Fund, (ii) determine from time to time
securities or other investments to be purchased, sold, retained or lent by each
Fund, (iii) furnish, without cost to each Fund, such office space, equipment,
facilities and personnel as needed for servicing the investments of the Fund to
the extent not provided by the Company's administrator under a separate
agreement with the Company, (iv) maintain all books and records with respect to
portfolio transactions of each Fund, and (v) permit its directors, officers and
employees to serve, without compensation from the Company or each Fund, as
Directors or officers of the Company. The Adviser shall carry out its duties
under this Agreement in accordance with each Fund's stated investment objective,
policies, and restrictions, the 1940 Act and other applicable laws and
regulations, and such other guidelines as the Directors may reasonably establish
from time to time.
(c) The Adviser will place orders for each Fund either directly with
the issuer or with any broker or dealer. In placing orders with brokers and
dealers, the Adviser will attempt to obtain the best net results in terms of
price and execution. Consistent with this obligation, the Adviser may, in its
discretion, purchase and sell portfolio securities to and from brokers and
dealers that provide brokerage and research services. The Adviser may pay such
brokers and dealers a higher commission than may be charged by other brokers and
dealers if the Adviser determines in good faith that such commission is
reasonable in relation to the value of the brokerage and research services
provided. This determination may be viewed in terms either of the particular
transaction or of the overall responsibility of the Adviser to the Funds and its
other clients.
2. RETENTION OF A SUB-ADVISER. Subject to such approval as may be
required under the 1940 Act, the Adviser may retain a sub-adviser, at the
Adviser's own cost and expense, for the purpose of making investment
recommendations and research available to the Adviser. Retention of a
sub-adviser with respect to any or all Funds shall in no way reduce the
responsibilities or obligations of the Adviser under this Agreement, and the
Adviser shall be responsible to the Company and each such Fund for all acts or
omissions of the sub-adviser in connection with the performance of the Adviser's
duties hereunder.
3. INDEPENDENT CONTRACTOR STATUS; SERVICES NOT EXCLUSIVE. The Adviser
shall, for all purposes herein, be deemed to be an independent contractor. The
services to be rendered by the Adviser pursuant to the provisions of this
Agreement are not to be deemed exclusive and the Adviser shall therefore be free
to render similar or different services to others, provided that, its ability to
render the services described herein shall not be impaired thereby.
4. FURNISHING OF INFORMATION. (a) Each Fund shall from time to time
furnish or make available to the Adviser detailed statements of the investments
and assets of the Fund, information pertaining to the investment objectives and
needs of the Fund, financial reports, proxy statements, and such legal or other
information as the Adviser may reasonably request in connection with the
performance of its obligations hereunder.
(b) The Adviser will furnish the Directors with such periodic and
special reports (including data on securities, economic conditions and other
pertinent subjects) as the Directors may reasonably request.
5. FUND RECORDS. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Adviser agrees that all records which it maintains for
the Company shall be the property of the Company and shall be surrendered
promptly to the Company upon request. The Adviser further agrees to preserve all
such records for the periods prescribed by Rule 3la-2 under the 1940 Act. The
Adviser agrees that it will maintain all records and accounts regarding the
investment activities of each Fund in a confidential manner. All such accounts
or records shall be made available within five (5) business days of request to
the accountants or auditors of each Fund during regular business hours at the
Adviser's offices. In addition, the Adviser will provide any materials
reasonably related to the investment advisory services provided hereunder as may
be reasonably requested in writing by the designated officers of the Company or
as may be required by any duly constituted authority.
6. ALLOCATION OF COSTS AND EXPENSES.
(a) The Adviser shall pay the costs of rendering its services
pursuant to the terms of this Agreement, other than the costs of securities
(including brokerage commissions, if any) purchased by the Funds.
(b) Each Fund shall bear all expenses of its operation (including
its proportionate share of the general expenses of the Company) not specifically
assumed by the Adviser. Expenses borne by each Fund shall include, but are not
limited to, (i) organizational and offering expenses of the Fund and expenses
incurred in connection with the issuance of shares of the Fund; (ii) fees of the
Company's custodian and transfer agent; (iii) costs and expenses of pricing and
calculating the net asset value per share for each class of the Fund and of
maintaining the books and records required by the 1940 Act; (iv) expenditures in
connection with meetings of shareholders and Directors, other than those called
solely to accommodate the Adviser; (v) compensation and expenses of Directors
who are not interested persons of the Company or the Adviser ("Disinterested
Directors"); (vi) the costs of any liability, uncollectible items of deposit and
other insurance or fidelity bond; (vii) the cost of preparing, printing, and
distributing prospectuses and statements of additional information, any
supplements thereto, proxy statements, and reports for existing shareholders;
(viii) legal, auditing, and accounting fees; (ix) trade association dues; (x)
filing fees and expenses of registering and maintaining registration of shares
of the Fund under applicable federal and state securities laws; (xi) brokerage
commissions; (xii) taxes and governmental fees; and (xiii) extraordinary and
non-recurring expenses.
(c) To the extent the Adviser incurs any costs which are an
obligation of a Fund as set forth herein and to the extent such costs have been
reasonably rendered, the Fund shall promptly reimburse the Adviser for such
costs.
7. INVESTMENT ADVISORY FEES.
(a) As compensation for the advice and services rendered and the
expenses assumed by the Adviser pursuant hereto, each Fund shall pay to the
Adviser a fee computed at the annual rate set forth on Schedule A hereto, as
such schedule may be amended from time to time.
(b) The investment advisory fee shall be accrued daily by each Fund
and paid to the Adviser at the end of each calendar month.
(c) In the case this Agreement becomes effective or terminates with
respect to any Fund before the end of any month, the investment advisory fee for
that month shall be calculated on the basis of the number of business days
during which it is in effect for that month.
8. ADDITIONAL FUNDS. In the event that the Company establishes one or
more series of shares with respect to which it desires to have the Adviser
render services under this Agreement, it shall so notify the Adviser in writing.
If the Adviser agrees in writing to provide said services, such series of shares
shall become a Fund hereunder upon execution of a new Schedule A and the
approval of the Directors and the shareholders of the series as required by the
1940 Act.
9. COMPLIANCE WITH APPLICABLE LAW. Nothing contained herein shall be
deemed to require the Funds to take any action contrary to (a) the Agreement and
Declaration of Company of the Company, (b) the By-laws of the Company, or (c)
any applicable statute or regulation. Nothing contained herein shall be deemed
to relieve or deprive the Directors of their responsibility for and control of
the conduct of the affairs of the Company or the Funds.
10. LIABILITY. (a) In the absence of willful misfeasance, bad faith or
gross negligence on the part of the Adviser, or reckless disregard by the
Adviser of its obligations or duties hereunder, the Adviser shall not be subject
to liability to the Company or any Fund or its shareholders for any act or
omission in the course of or in connection with rendering services hereunder or
for any losses that may be sustained in the purchase, holding or sale of any
security.
(b) No provision of this Agreement shall be construed to protect any
Director or officer of the Company, or any director or officer of the Adviser,
from liability to which such person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence on the part of such person,
or reckless disregard by such person of obligations or duties hereunder.
(c) A copy of the Company's Amended and Restated Articles of
Incorporation is on file with the Secretary of Maryland, and notice is hereby
given that this Agreement is executed on behalf of the Directors as Directors
and not individually. The Adviser acknowledges and agrees that the obligations
of a Fund hereunder are not personally binding upon any of the Directors or
shareholders of the Fund but are binding only upon property of that Fund and no
other.
11. TERM OF AGREEMENT. This Agreement shall become effective on the
date above written with respect to each Fund listed on Schedule A hereto on such
date and shall continue in effect for two years from such date unless sooner
terminated as hereinafter provided. With respect to each series added by
execution of a new Schedule A, this Agreement shall become effective on the date
of such execution and shall remain in effect for two years after such execution
unless sooner terminated as hereinafter provided. Thereafter, this Agreement
shall continue in effect with respect to each Fund from year to year so long as
such continuation is approved at least annually for each Fund by (i) the
Directors or by the vote of a majority of the outstanding voting securities of
the Fund, and (ii) the vote of a majority of the Disinterested Directors, with
such vote being cast in person at a meeting called for the purpose of voting on
such approval.
12. TERMINATION. This Agreement may be terminated with respect to any
Fund at any time without payment of any penalty (a) by the Directors or by vote
of a majority of the outstanding voting securities of the Fund, upon delivery of
sixty (60) days' written notice to the Adviser, or (b) by the Adviser upon sixty
(60) days' written notice to the Fund. Termination of this Agreement with
respect to one Fund shall not affect the continued effectiveness of this
Agreement with respect to any other Fund. This Agreement shall terminate
automatically in the event of its assignment.
13. AMENDMENT OF AGREEMENT. This Agreement may only be modified or
amended by mutual written agreement of the parties hereto.
14. NO WAIVER. The waiver by any party of any breach of or default
under any provision or portion of this Agreement shall not operate as or be
construed to be a waiver of any subsequent breach or default.
15. USE OF NAME. In consideration of the execution of this Agreement,
the Adviser hereby grants to the Company the right to use the name "Conseco" as
part of its name and the names of the Funds. The Company agrees that in the
event this Agreement is terminated, it shall immediately take such steps as are
necessary to amend its name to remove the reference to "Conseco."
16. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Indiana, except insofar as the 1940
Act may be controlling.
17. DEFINITIONS. For purposes of application and operation of the
provisions of this Agreement, the terms "majority of the outstanding voting
securities, "interested persons," and "assignment" shall have the meaning as set
forth in the 1940 Act. In addition, when the effect of a requirement of the 1940
Act reflected in any provision of this Agreement is modified, interpreted or
relaxed by a rule, regulation or order of the Securities and Exchange
Commission, whether of special or of general application, such provision shall
be deemed to incorporate the effect of such rule, regulation or order.
18. SEVERABILITY. The provisions of this Agreement shall be considered
severable and if any provision of this Agreement is deemed to be invalid or
contrary to any existing or future law, such invalidity shall not impair the
operation of or affect any other provision of this Agreement which is valid.
19. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested by their duly authorized officers on the day and year
first above written.
ATTEST: CONSECO STOCKCAR STOCKS
MUTUAL FUND, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. ----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
ATTEST: CONSECO CAPITAL MANAGEMENT, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. ----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
INVESTMENT ADVISORY AGREEMENT
SCHEDULE A
Series Annual Rate
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Conseco StockCar Stocks Index Fund 0.65%