EXHIBIT E
PRINCIPAL UNDERWRITING AGREEMENT
PRINCIPAL UNDERWRITING AGREEMENT
BETWEEN CONSECO STOCKCAR STOCKS MUTUAL FUND, INC.
AND
CONSECO EQUITY SALES, INC.
THIS PRINCIPAL UNDERWRITING 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 Equity Sales, Inc., a Texas
corporation (the "Underwriter").
WITNESSETH:
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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, and its shares are registered pursuant to the Securities Act
of 1933 (the "1933 Act");
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 Company 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 Company desires to retain the Underwriter to act as the
Company'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.
(a) The Company 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 Company or through its transfer agent as set forth in the Company's
Registration Statement. As used herein, the term "Registration Statement" shall
mean the registration statement most recently filed by the Company 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 Company. The Underwriter shall promptly notify the Company 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 Company 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 Company 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.
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 Company 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 Company 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 Company.
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
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 Directors showing expenditures under this Agreement
and the purposes for which such expenditures were made.
9. CONDUCT OF BUSINESS. The Company 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 Company 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 Directors.
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 Company 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
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 Directors of the Company who are
not parties to this Agreement or interested persons of any such party
("Disinterested Directors") and by a majority of those Disinterested Directors
who have no direct or indirect financial interest in any Plan or this Agreement.
("Rule 12b-1 Directors"), 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 Directors, by vote of
a majority of the outstanding voting securities of the Fund, or by the vote of a
majority of the Rule 12b-1 Directors, 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 DIRECTORS AND SHAREHOLDERS. A copy
of the Amended and Restated Articles of Incorporation is on file with the
Secretary of State in Maryland and notice is hereby given that this Agreement is
executed on behalf of the Directors as Directors, and not individually. The
Underwriter acknowledges and agrees that the obligations of a Fund hereunder are
not binding upon any of the Directors or shareholders of the Fund personally but
are binding only upon the assets and property of that Fund and no other.
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 STOCKCAR STOCKS MUTUAL
FUNDS, INC.
ATTEST: By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President
/s/ Xxxxxxx X. Xxxxxx
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CONSECO EQUITY SALES, INC.
ATTEST: By: /s/ L. Xxxxxxx Xxxxxxxxx
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L. Xxxxxxx Xxxxxxxxx,
/s/ Xxxxxxx X. Xxxxxx President
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PRINCIPAL UNDERWRITING AGREEMENT
SCHEDULE A
SERIES
CONSECO STOCKCAR STOCKS MUTUAL FUND, INC.
