AMENDED AND RESTATED
PRINCIPAL UNDERWRITING AGREEMENT
BETWEEN CONSECO FUND GROUP
AND
CONSECO EQUITY SALES, INC.
THIS PRINCIPAL UNDERWRITING AGREEMENT is entered into as of this 2nd day
of January, 1997, by and between Conseco Fund Group (the "Trust"), a
Massachusetts business trust, and Conseco (formerly GARCO) Equity Sales, Inc., a
Texas corporation (the "Underwriter"), and is amended as of December 31, 1997.
WITNESSETH:
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end diversified management investment
company, and its shares are registered pursuant to the Securities Act of 1933
(the "1933 Act");
WHEREAS, the Trust has established several separate 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 Trust has issued shares of each Fund in one or more classes
(each a "Class"), and has adopted Plans of Distribution and Service (the
"Plans") pursuant to Rule 12b-1 under the 1940 Act with respect to certain of
those Classes (each a "12b-1 Class");
WHEREAS, the Underwriter is registered as a broker-dealer under the
Securities Exchange Act of 1934 (the "1934 Act"), and is a member in good
standing of the National Association of Securities Dealers, Inc. ("NASD");
WHEREAS, the Trust desires to retain the Underwriter to act as the Trust's
principal underwriter in connection with the offering and sale of shares of each
Fund and to furnish certain other services; and
WHEREAS, the Underwriter is willing to act as principal underwriter and to
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 Underwriter.
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(a) The Trust hereby employs the Underwriter, and the Underwriter
hereby accepts employment, as the principal underwriter and exclusive sales
agent in connection with the offering and sale of the shares of each Fund. It is
understood, however, that such employment does not preclude sales made directly
by the Trust or through its transfer agent as set forth in the Trust's
Registration Statement. As used herein, the term "Registration Statement" shall
mean the registration statement most recently filed by the Trust under the 1933
Act and the 1940 Act, including any amendments or supplements thereto. The
Underwriter agrees to use its best efforts to promote the sale of the Funds'
shares. The Underwriter is not obligated to sell any specific number of shares.
(b) The Underwriter shall hold itself available to receive
purchase and redemption orders for shares of each Fund and to accept such orders
on behalf of the Trust. The Underwriter shall promptly notify the Trust or its
transfer agent of all orders received. Orders shall be deemed effective at the
time and in the manner set forth in the Registration Statement.
(c) The Trust reserves the right at all times to suspend or limit
the public offering of the shares of any or all Funds (or of any or all Classes
thereof) upon written notice to the Underwriter. The Trust and the Underwriter
each has the right to reject any order in whole or in part.
(d) The Underwriter shall provide or obtain certain shareholder
services, including, but not limited to, maintaining account records for
shareholders; answering inquiries relating to shareholders' accounts, the
policies of the Funds and the performance of their investments; providing
assistance and handling transmission of funds in connection with purchase,
redemption and exchange orders for shares; providing assistance in connection
with changing account setups and enrolling in various optional services; and
producing and disseminating shareholder communications or servicing materials.
The Underwriter may pay compensation and expenses, including overhead, salaries,
and telephone and other communications expenses, to Authorized Dealers (as
defined below) and employees who provide such services.
(e) The Underwriter in its discretion may enter into agreements
with such brokers, dealers or other financial intermediaries ("Authorized
Dealers") as it may select regarding the distribution of Fund shares and/or the
servicing of shareholder accounts. To the extent required by applicable law,
each Authorized Dealer shall be appropriately registered and qualified to carry
out its duties under its agreement with the Underwriter.
2. INDEPENDENT CONTRACTOR STATUS; SERVICES NOT EXCLUSIVE. The Underwriter
shall, for all purposes herein, be deemed to be an independent contractor. The
services to be rendered by the Underwriter pursuant to the provisions of this
Agreement are not to be deemed exclusive, and the Underwriter 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.
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3. FURNISHING OF INFORMATION. Each Fund shall keep the Underwriter fully
informed with regard to its affairs. Each Fund shall furnish the Underwriter at
least annually with audited financial statements of its books and accounts
certified by its independent public accountants. In addition, from time to time,
each Fund shall furnish such additional financial or other information as the
Underwriter may reasonably request.
4. OFFERING PRICE. Each Class of Fund shares shall be offered at a price
equivalent to its net asset value per share (determined in the manner and at the
time or times set forth in the Registration Statement) plus any applicable sales
charge. On each day on which the New York Stock Exchange ("NYSE") is open for
business, the Trust shall furnish (or arrange for another person to furnish) the
Underwriter with each Class' net asset value per share.
5. COMPENSATION.
(a) As compensation for its activities under this Agreement with
respect to any Class of Fund shares with an initial sales charge, the
Underwriter shall receive the sales charge, if any, imposed on purchases of
shares of that Class. The amount of the sales charge shall be calculated in
accordance with the Registration Statement. The Distributor is authorized to
collect the gross proceeds derived from the sale of such shares, remit the net
asset value thereof to the Trust and retain the initial sales charge.
(b) As compensation for its activities under this Agreement with
respect to any Class of Fund shares with a contingent deferred sales charge, the
Underwriter shall receive the sales charge, if any, imposed on redemptions of
shares of that Class. The amount of the sales charge shall be determined in
accordance with the Registration Statement.
(c) As additional compensation, the Underwriter shall receive a
distribution and service fee with respect to each 12b-1 Class at the rate set
forth in the applicable Plan, as such Plan may be amended from time to time.
(d) The Underwriter may reallow to Authorized Dealers any or all
of the initial sales charges, contingent deferred sales charges, or distribution
and service fees which it is paid under this Agreement; provided, however, that
the Distributor may not make payments to any Authorized Dealer for shareholder
servicing in an amount in excess of .25% of the average annual net asset value
of the shares owned by clients of such Authorized Dealer.
6. PURCHASES FOR UNDERWRITER'S OWN ACCOUNT. The Underwriter shall not
purchase shares for its own account for the purpose of resale to the public, but
the Underwriter may purchase shares for its own account only upon written
assurance that the purchase is for investment purposes and that the shares shall
not be resold except through redemption by the Trust.
7. ALLOCATION OF EXPENSES. (a) Each Fund will pay all fees and expenses
in connection with (i) preparing audited and certified financial statements;
(ii) registering and maintaining the registration of its shares under applicable
federal and state securities laws; and (iii) preparing, printing and
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distributing prospectuses and statements of additional information, any
supplements thereto, reports, and other communications that are sent to existing
shareholders.
(b) The Underwriter shall pay (or reimburse) all fees and expenses of each
Fund in connection with (i) printing and distributing additional copies of
prospectuses, statements of additional information, any supplements thereto,
reports, and other communications for other than existing shareholders used to
offer shares to the public; and (ii) preparing, printing and distributing all
advertising and sales literature relating to the Fund.
(c) The Underwriter shall pay all of its own expenses in connection with
its services under this Agreement and may pay the salaries and expenses of
Authorized Dealers or employees who engage in or support the distribution of
Fund shares or who service shareholder accounts.
8. REPORTS OF UNDERWRITER. The Underwriter shall prepare, at least
quarterly, reports for the Trustees showing expenditures under this Agreement
and the purposes for which such expenditures were made.
9. CONDUCT OF BUSINESS. The Trust authorizes the Underwriter to provide
only such information and to make only such statements and representations as
permitted in accordance with federal and state securities laws and applicable
rules of self-regulatory organizations.
10. ADDITIONAL FUNDS. In the event that the Trust establishes one or more
series of shares with respect to which it desires to have the Underwriter render
services under this Agreement, it shall so notify the Underwriter in writing. If
the Underwriter agrees in writing to provide said services, such series of
shares shall become a Fund hereunder upon execution of a new Schedule A and
approval by the Trustees.
11. LIABILITY. In the absence of willful misfeasance, bad faith or gross
negligence on the part of the Underwriter or reckless disregard by the
Underwriter of its obligations or duties hereunder, the Underwriter shall not be
subject to liability to the Trust or any Fund or its shareholders for any act or
omission in the course of or in connection with rendering services hereunder.
12. TERM OF AGREEMENT. This Agreement shall become effective on the date
above written and shall continue in effect for two years from such date 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 Trustees or
by the vote of a majority of the outstanding voting securities of the Fund and
(ii) the vote of a majority of the Trustees of the Trust who are not parties to
this Agreement or interested persons of any such party ("Disinterested
Trustees") and by a majority of those Disinterested Trustees who have no direct
or indirect financial interest in any Plan or this Agreement. ("Rule 12b-1
Trustees"), with such vote being cast in person at a meeting called for the
purpose of voting on such approval.
13. TERMINATION. This Agreement may be terminated with respect to any
Fund at any time without payment of any penalty (a) by the Trustees, by vote of
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a majority of the outstanding voting securities of the Fund, or by the vote of a
majority of the Rule 12b-1 Trustees, upon delivery of sixty (60) days' written
notice to the Underwriter, or (b) by the Underwriter 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.
14. ENTIRE AGREEMENT; AMENDMENT. This Agreement represents the entire
agreement between the parties hereto and supersedes any prior agreement between
the parties pertaining to the subject matter hereof, whether oral or written.
This Agreement may only be modified or amended by mutual written agreement of
the parties hereto.
15. 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.
16. DEFINITIONS. For purposes of application and operation of the
provisions of this Agreement, the terms "assignment," "interested persons" and
"majority of the outstanding voting securities" shall have the meanings 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.
17. 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.
18. 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.
19. NOTICES. Any notice under this Agreement shall be in writing,
addressed and delivered or mailed postage prepaid to the other party at the
address such other party may designate from time to time for the receipt of such
notices.
20. 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.
21. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS. A copy of
the Agreement and Declaration of Trust of the Trust is on file with the
Secretary of the Commonwealth of Massachusetts and notice is hereby given that
this Agreement is executed on behalf of the Trustees as Trustees, and not
individually. The Underwriter acknowledges and agrees that the obligations of a
Fund hereunder are not binding upon any of the Trustees or shareholders of the
Fund personally but are binding only upon the assets and property of that Fund
and no other.
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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.
CONSECO FUND GROUP
ATTEST: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
__________________________________
CONSECO EQUITY SALES, INC.
ATTEST:
By: /s/ L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
__________________________________ President
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CONSECO FUND GROUP
AMENDED AND RESTATED PRINCIPAL UNDERWRITING AGREEMENT
SCHEDULE A
SERIES
Conseco Equity Fund
Conseco Asset Allocation Fund
Conseco Fixed Income Fund
Conseco 20 Fund
Conseco High Yield Fund
Conseco International Fund
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