Exhibit (d)(7) Investment Advisory Agreement between Conseco Fund Group and
Conseco Capital Management, Inc.
INVESTMENT MANAGEMENT CONTRACT
Contract made as of December 1, 2000 ("Contract") between CONSECO FUND
GROUP, a Massachusetts business trust ("Trust"), and CONSECO CAPITAL MANAGEMENT,
INC. ("Adviser"), a Massachusetts corporation registered as an investment
adviser under the Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company, and
is authorized to offer for public sale distinct series of shares of beneficial
interest; and
WHEREAS the Trust desires to retain the Adviser and may desire to have
one or more investment advisers (each a "Subadviser") provide investment
advisory and portfolio management services with respect to the series of shares
of beneficial interest of the Trust listed on Schedule A hereto, as such
schedule may be amended from time to time (each a "Fund"); and
WHEREAS the Trust desires to retain the Adviser as investment manager
to furnish certain portfolio management services to the Trust with respect to
each Fund for which a Subadviser is employed, and the Adviser is willing to
furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints the Adviser as investment
adviser of the Trust and each Fund for the period and on the terms set forth in
this Contract. The Adviser accepts such appointment and agrees to render the
services herein set forth, for the compensation herein provided.
2. Employment; Duties of the Adviser.
(a) Subject to the supervision and direction of the Trust's Board of
Trustees ("Board") and any written guidelines adopted by the Board, the Adviser
will provide a continuous investment program for all or a designated portion of
the assets ("Segment") of each Fund, including investment research and
discretionary management with respect to all securities and investments and cash
equivalents in each Fund or Segment. The Adviser will determine from time to
time what investments will be purchased, retained or sold by each Fund or
Segment. The Adviser will be responsible for placing purchase and sell orders
for investments and for other related transactions for each Fund or Segment. The
Adviser will be responsible for voting proxies of issuers of securities held by
each Fund or Segment. The Adviser understands that each Fund's assets need to be
managed so as to permit it to qualify or to continue to qualify as a regulated
investment company under Subchapter M of the Internal Revenue Code, as amended
("Code"). The Adviser will provide services under this Contract in accordance
with each Fund's investment objective, policies and restrictions as stated in
the Trust's currently effective registration statement under the 1940 Act, and
any amendments or supplements thereto ("Registration Statement").
(b) The Adviser agrees that, in placing orders with brokers, it will
obtain the best net result in terms of price and execution; provided that, on
behalf of each Fund, the Adviser may, in its discretion and in compliance with
Section 28(e) of the Securities and Exchange Act of 1934, use brokers that
provide the Adviser with research, analysis, advice and similar services to
execute portfolio transactions on behalf of each Fund or Segment, and the
Adviser may pay to those brokers in return for brokerage and research services a
higher commission than may be charged by other brokers, subject to the Adviser's
determining in good faith that such commission is reasonable in terms either of
the particular transaction or of the overall responsibility of the Adviser to
each Fund and its other clients and that the total commissions paid by each Fund
or Segment will be reasonable in relation to the benefits to each Fund over the
long term. In no instance will portfolio securities be purchased from or sold to
the Adviser, or any affiliated person thereof, except in accordance with the
federal securities laws and the rules and regulations thereunder. The Adviser
may aggregate sales and purchase orders with respect to the assets of each Fund
or Segment with similar orders being made simultaneously for other accounts
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advised by the Adviser or its affiliates. Whenever the Adviser simultaneously
places orders to purchase or sell the same security on behalf of a Fund and one
or more other accounts advised by the Adviser, the orders will be allocated as
to price and amount among all such accounts in a manner believed to be equitable
over time to each account.
(c) The Adviser will maintain all books and records required to be
maintained pursuant to the 1940 Act and the rules and regulations promulgated
thereunder with respect to transactions by the Adviser on behalf of each Fund or
Segment, and will furnish the Board with such periodic and special reports as
the Board reasonably may request. In compliance with the requirements of Rule
31a-3 under the 1940 Act, the Adviser hereby agrees that all records that it
maintains for a Fund are the property of the Trust, agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act any records that it
maintains for the Trust and that are required to be maintained by Rule
31a-1under the 1940 Act, and further agrees to surrender promptly to the Trust
any records that it maintains for a Fund upon request by the Trust.
(d) At such times as shall be reasonably requested by the Board, the
Adviser will provide the Board with economic and investment analyses and reports
as well as quarterly reports setting forth the performance of a Fund or Segment
and make available to the Board any economic, statistical and investment
services that the Adviser normally makes available to its institutional or other
customers.
(e) In accordance with procedures adopted by the Board, as amended from
time to time, the Adviser is responsible for assisting in the fair valuation of
all portfolio securities in each Fund or Segment and will use its reasonable
efforts to arrange for the provision of a price from one or more parties
independent of the Adviser for each portfolio security for which the custodian
does not obtain prices in the ordinary course of business from an automated
pricing service.
3. Retention of a Subadviser. The Adviser may retain one or more
Subadvisers, at the Adviser's own cost and expense. In the event that the
Adviser retains one or more Subadviser(s) for a Fund, the following provisions
apply:
(a) Subject to the oversight and direction of the Board of the Trust
("Trustees"), the Adviser will provide to the Trust investment management
evaluation services by performing initial reviews of prospective Subadviser(s)
for each Fund and supervising and monitoring performance of the Subadviser(s)
thereafter. The Adviser agrees to report to the Trust the results of its
evaluation, supervision and monitoring functions and to keep certain books and
records of the Trust in connection therewith. The Adviser further agrees to
communicate performance expectations and evaluations to the Subadviser(s), and
to recommend to the Trust whether agreements with Subadviser(s) should be
renewed, modified or terminated.
(b) The Adviser will be responsible for informing the Subadviser(s) of
the investment objective(s), policies and restrictions of the Fund for which
each Subadviser is responsible, for informing or ascertaining that it is aware
of other legal and regulatory responsibilities applicable to the Subadviser(s)
with respect to the Fund for which each Subadviser is responsible, and for
monitoring each Subadviser's discharge of its duties; but the Adviser is not
responsible for the specific actions (or inactions) of a Subadviser in the
performance of the duties assigned to it.
(c) With respect to each Subadviser for a Fund, the Adviser shall enter
into an agreement ("Subadvisory Agreement") with the Subadviser in substantially
the form previously approved by the Board.
(d) The Adviser shall be responsible for the fees payable to and shall
pay the Subadviser(s) of a Fund the fee as specified in the Subadvisory
Agreement relating thereto.
4. Further Duties. In all matters relating to the performance of this
Contract, the Adviser will act in conformity with the Declaration of Trust,
By-Laws and the currently effective registration statement of the Trust and any
amendments or supplements thereto ("Registration Statement") and with the
instructions and directions of the Board and will comply with the requirements
of the 1940 Act, the Advisers Act, and the rules under each, and all other
applicable federal and state laws and regulations.
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5. Services Not Exclusive. The services furnished by the Adviser
hereunder are not to be deemed exclusive and the Adviser shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby. Nothing in this Contract shall limit or restrict the
right of any director, officer or employee of the Adviser, who may also be a
Trustee, officer or employee of the Trust, to engage in any other business or to
devote his or her time and attention in part to the management or other aspects
of any other business, whether of a similar nature or a dissimilar nature.
6. Expenses.
(a) During the term of this Contract, each Fund will bear all expenses,
not specifically assumed by the Adviser, incurred in its operations and the
offering of its shares.
(b) Expenses borne by each Fund will include but not be limited to the
following (or each Funds' proportionate share of the following): (i) the cost
(including brokerage commissions) of securities purchased or sold by the Fund
and any losses incurred in connection therewith; (ii) fees payable to and
expenses incurred on behalf of the Fund by the Adviser under this Contract;
(iii) filing fees and expenses relating to the registrations and qualification
of the Fund's shares and the Trust under federal and/or state securities laws
and maintaining such registration and qualifications; (iv) fees and salaries
payable to the Trust's Trustees and officers who are not interested persons of
the Trust or the Adviser; (v) all expenses incurred in connection with the
Trustees' services, including travel expenses; (vi) taxes (including any income
or franchise taxes) and governmental fees; (vii) costs of any liability,
uncollectible items of deposit and other insurance and fidelity bonds; (viii)
any costs, expenses or losses arising out of a liability of or claim for damages
or other relief asserted against the Trust or the Fund for violation of any law;
(ix) legal, accounting and auditing expenses, including legal fees of special
counsel for those Trustees of the Trust who are not interested persons of the
Trust; (x) charges of custodians, transfer agents and other agents; (xi) costs
of preparing share certificates; (xii) expenses of setting in type and printing
prospectuses and supplements thereto, statements of additional information and
supplements thereto, reports and proxy materials for existing shareholders;
(xiii) costs of mailing prospectuses and supplements thereto, statements of
additional information and supplements thereto, reports and proxy materials to
existing shareholders; (xiv) any extraordinary expenses (including fees and
disbursements of counsel, costs of actions, suits or proceedings to which the
Trust is a party and the expenses the Trust may incur as a result of its legal
obligation to provide indemnification to its officers, Trustees, agents and
shareholders) incurred by the Trust or the Fund; (xv) fees, voluntary
assessments and other expenses incurred in connection with membership in
investment company organizations; (xvi) costs of mailing and tabulating proxies
and costs of meetings of shareholders, the Board and any committees thereof;
(xvii) the cost of investment company literature and other publications provided
by the Trust to its Trustees and officers; (xviii) costs of mailing, stationery
and communications equipment; (xix) expenses incident to any dividend,
withdrawal or redemption options; (xx) charges and expenses of any outside
pricing service used to value portfolio securities; (xxi) interest on borrowings
of the Trust; and (xxii) fees or expenses related to license agreements with
respect to securities indices.
(c) The Trust or a Fund may pay directly any expenses incurred by it in
its normal operations and, if any such payment is consented to by the Adviser
and acknowledged as otherwise payable by the Adviser pursuant to this Contract,
a Fund may reduce the fee payable to the Adviser pursuant to Paragraph 7 thereof
by such amount. To the extent that such deductions exceed the fee payable to the
Adviser on any monthly payment date, such excess shall be carried forward and
deducted in the same manner from the fee payable on succeeding monthly payment
dates.
(d) The Adviser will assume the cost of any compensation for services
provided to the Trust received by the officers of the Trust and by those
Trustees who are interested persons of the Trust.
(e) The payment or assumption by the Adviser of any expenses of the
Trust or a Fund that the Adviser is not required by this Contract to pay or
assume shall not obligate the Adviser to pay or assume the same or any similar
expense of the Trust or a Fund on any subsequent occasion.
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7. Compensation.
(a) For the services provided and the expenses assumed pursuant to this
Contract, with respect to a Fund, the Trust will pay to the Adviser a fee,
computed daily and paid monthly, at an annual rate as set forth on Schedule A
hereto (as such schedule may be amended from time to time), expressed as a
percentage of average daily net assets of the Fund.
(b) The fee shall be computed daily and paid monthly to the Adviser on
or before the first business day of the next succeeding calendar month.
(c) If this Contract becomes effective or terminates before the end of
any month, the fee for the period from the effective day to the end of the month
or from the beginning of such month to the date of termination, as the case may
be, shall be prorated according to the proportion which such period bears to the
full month in which such effectiveness or termination occurs.
8. Limitation of Liability of the Adviser. The Adviser and its
officers, directors, employees and delegates, including any Subadviser to a
Fund, shall not be liable for any error of judgment or mistake of law or for any
loss suffered by the Trust, a Fund or any of its shareholders, in connection
with the matters to which this Contract relates, except to the extent that such
a loss results from willful misfeasance, bad faith or gross negligence on its
part in the performance of its duties or from reckless disregard by it of its
obligations and duties under this Contract. Any person, even though also an
officer, director, employee, or agent of the Adviser, who may be or become an
officer, Trustee, employee or agent of the Trust shall be deemed, when rendering
services to a Fund or the Trust or acting with respect to any business of a Fund
or the Trust, to be rendering such service to or acting solely for a Fund or the
Trust and not as an officer, director, employee, or agent or one under the
control or direction of the Adviser even though paid by it.
9. Limitation of Liability of the Trustees and Shareholders of the
Trust. The Trustees of the Trust and the shareholders of any Fund shall not be
liable for any obligations of any Fund or the Trust under this Agreement and the
Adviser agrees that, in asserting any rights or claims under this Agreement, it
shall look only to the assets and property of the Trust in settlement of such
right or claim, and not to such Trustees or shareholders.
10. Duration and Termination.
(a) This Contract shall become effective for each Fund upon the day and
year first written above, provided that this Contract has been approved for the
Fund by a vote of a majority of those Trustees of the Trust who are not parties
to this Contract or interested persons of any such party ("Independent
Trustees") cast in person at a meeting called for the purpose of voting on such
approval.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from its effective date. Thereafter, if not
terminated, this Contract shall continue automatically for successive periods of
twelve months each, provided that such continuance is specifically approved at
least annually (i) by a vote of a majority of the Independent Trustees, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Board or by vote of a majority of the outstanding voting securities of
each Fund.
(c) Notwithstanding the foregoing, with respect to a Fund, this
Contract may be terminated at any time, without the payment of any penalty, by
vote of the Board or by a vote of a majority of the outstanding voting
securities of the Fund upon delivery of sixty (60) days' written notice to the
Adviser and may be terminated by the Adviser at any time, without the payment of
any penalty, upon delivery of sixty (60) days' written notice to the Trust.
Termination of this Contract with respect to a Fund shall in no way affect the
continued validity of this Contract or the performance thereunder with respect
to any other Fund. This Contract shall terminate automatically in the event of
its assignment.
11. Additional Funds. In the event that the Trust establishes one or
more series of shares with respect to which it desires to have the Adviser
render services under this Contract, 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 compliance
with the requirements of the 1940 Act and the rules and regulations thereunder.
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12. Amendment of this Contract. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, and no amendment of this Contract as to a
Fund shall be effective until approved by vote of the Independent Trustees or a
majority of the Fund's outstanding voting securities.
13. Governing Law. This Contract shall be construed in accordance with
the laws of the State of Indiana, without giving effect to the conflicts of laws
principles thereof, and in accordance with the 1940 Act, provided, however, that
section 9 above will be construed in accordance with the laws of the
Commonwealth of Massachusetts. To the extent that the applicable laws of the
State of Indiana or the Commonwealth of Massachusetts conflict with the
applicable provisions of the 1940 Act, the latter shall control.
14. Miscellaneous. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms "majority of the outstanding voting securities," "affiliated person,"
"interested person," "assignment," "broker," "investment adviser," "national
securities exchange," "net assets," "prospectus," "sale," "sell" and "security"
shall have the same meaning as such terms have in the 1940 Act, subject to such
exemption as may be granted by the Securities and Exchange Commission by any
rule, regulation or order. Where the effect of a requirement of the 1940 Act
reflected in any provision of this Contract is relaxed by a rule, regulation or
order of the Securities and Exchange Commission, whether of special or general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated as of the day and year first above
written.
CONSECO FUND GROUP
Attest: /s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Secretary President
CONSECO CAPITAL MANAGEMENT, INC.
Attest: /s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Secretary Vice President
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CONSECO FUND GROUP
INVESTMENT MANAGEMENT CONTRACT
SCHEDULE A
Series Annual Fee
Conseco Science & Technology Fund 1.00%
Conseco 20 Fund 0.70%
Conseco Large-Cap Fund 0.70%
Conseco Equity Fund 0.70%
Conseco Balanced Fund 0.70%
Conseco Convertible Securities Fund 0.85%
Conseco High Yield Fund 0.70%
Conseco Fixed Income Fund 0.45%
Exhibit (d)(8) Investment Sub-Advisory Agreement between Oak Associates,
ltc. and Conseco Capital Management, Inc., on behalf of the
Conseco Science & Technology and Conseco 20 Funds.
SUB-ADVISORY CONTRACT
Agreement made as of Friday, December 1, 2000 ("Contract") between
CONSECO CAPITAL MANAGEMENT, INC. ("CCM"), and Chicago Equity Partners, LLC, a
Delaware limited liability company ("Sub-Adviser").
RECITALS
(1) CCM has entered into an Interim Investment Management Agreement,
dated Friday, December 1, 2000 ("Management Agreement"), with Conseco Fund Group
("Trust"), an open-end management investment company registered under the
Investment Company Act of 1940, as amended ("1940 Act"), with respect to all the
series of the Trust;
(2) CCM wishes to retain the Sub-Adviser to furnish certain investment
advisory and portfolio management services to CCM and the series of the Trust
listed on Schedule A hereto, as such schedule may be amended from time to time
(each a "Fund"); and
(3) The Sub-Adviser is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, CCM and the Sub-Adviser agree as follows:
1. Appointment. CCM hereby appoints the Sub-Adviser as an investment
sub-adviser with respect to each Fund for the period and on the terms set forth
in this Contract. The Sub-Adviser accepts that appointment and agrees to render
the services herein set forth, for the compensation herein provided.
2. Duties as Sub-Adviser.
(a) Subject to the supervision and direction of the Trust's Board of
Trustees ("Board") and review by CCM, and any written guidelines adopted by the
Board or CCM, the Sub-Adviser will provide a continuous investment program for
all or a designated portion of the assets ("Segment") of each Fund, including
investment research and discretionary management with respect to all securities
and investments and cash equivalents in each Fund or Segment. The Sub-Adviser
will determine from time to time what investments will be purchased, retained or
sold by each Fund or Segment. The Sub-Adviser will be responsible for placing
purchase and sell orders for investments and for other related transactions for
each Fund or Segment. The Sub-Adviser will be responsible for voting proxies of
issuers of securities held by each Fund or Segment. The Sub-Adviser understands
that each Fund's assets need to be managed so as to permit it to qualify or to
continue to qualify as a regulated investment company under Subchapter M of the
Internal Revenue Code, as amended ("Code"). The Sub-Adviser will provide
services under this Contract in accordance with each Fund's investment
objective, policies and restrictions as stated in the Trust's currently
effective registration statement under the 1940 Act, and any amendments or
supplements thereto ("Registration Statement").
(b) The Sub-Adviser agrees that, in placing orders with brokers, it
will seek to obtain the best net result in terms of price and execution;
provided that, on behalf of each Fund, the Sub-Adviser may, in its discretion
and in compliance with Section 28(e) of the Securities and Exchange Act of 1934,
use brokers that provide the Sub-Adviser with research, analysis, advice and
similar services to execute portfolio transactions on behalf of each Fund or
Segment, and the Sub-Adviser may pay to those brokers in return for brokerage
and research services a higher commission than may be charged by other brokers,
subject to the Sub-Adviser's determining in good faith that such commission is
reasonable in terms either of the particular transaction or of the overall
responsibility of the Sub-Adviser to each Fund and its other clients and that
the total commissions paid by each Fund or Segment will be reasonable in
relation to the benefits to each Fund over the long term. In no instance will
portfolio securities be purchased from or sold to CCM or the Sub-Adviser, or any
affiliated person thereof, except in accordance with the federal securities laws
and the rules and regulations thereunder. The Sub-Adviser may aggregate sales
and purchase orders with respect to the assets of each Fund or Segment with
similar orders being made simultaneously for other accounts advised by the
Sub-Adviser or its affiliates. Whenever the Sub-Adviser simultaneously places
orders to purchase or sell the same security on behalf of a Fund and one or more
other accounts advised by the Sub-Adviser, the orders will be allocated as to
price and amount among all such accounts in a manner that the Sub-Adviser
believes to be equitable over time to each account.
(c) The Sub-Adviser will maintain all books and records required to be
maintained pursuant to the 1940 Act and the rules and regulations promulgated
thereunder with respect to transactions by the Sub-Adviser on behalf of each
Fund or Segment, and will furnish the Board and CCM with such periodic and
special reports as the Board or CCM reasonably may request. In compliance with
the requirements of Rule 31a-3 under the 1940 Act, the Sub-Adviser hereby agrees
that all records that it maintains for a Fund are the property of the Trust,
agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act
any records that it maintains for the Trust and that are required to be
maintained by Rule 31a-1 under the 1940 Act, and further agrees to surrender
promptly to the Trust any records that it maintains for a Fund upon request by
the Trust; provided, however, that Sub-Adviser may retain copies of such
records.
(d) At such times as shall be reasonably requested by the Board or CCM,
the Sub-Adviser will provide the Board and CCM with economic and investment
analyses and reports as well as quarterly reports setting forth the performance
of a Fund or Segment, including an affirmative statement with respect to
compliance, employees gained or lost, accounts gained or lost and any litigation
or change of structure during the quarter, and make available to the Board and
CCM any economic, statistical and investment services that the Sub-Adviser
normally makes available to its institutional customers; provided, however, that
Sub-Adviser shall not be responsible for portfolio accounting or generating
reports derived from portfolio accounting information.
(e) The Sub-Adviser shall not be responsible for pricing portfolio
securities. The Fund's Administrator or Sub-Administrator shall price portfolio
securities. However, in accordance with procedures adopted by the Board, as
amended from time to time, the Sub-Adviser shall use its reasonable efforts to
assist in determining a fair value or valuation methodology for portfolio
securities for which market quotations are not readily available.
3. Further Duties. In all matters relating to the performance of this
Contract, the Sub-Adviser will seek to act in conformity with the Trust's
Declaration of Trust, By-Laws and Registration Statement and with the written
instructions and written directions of the Board and CCM; and will comply with
the requirements of the 1940 Act and, to the extent applicable, the Investment
Advisers Act of 1940, as amended ("Advisers Act") and the rules under each,
Subchapter M of the Internal Revenue Code ("Code"), as applicable to regulated
investment companies; and all other federal and state laws and regulations
applicable to the Trust and each Fund. CCM agrees to provide to the Sub-Adviser
copies of the Trust's Declaration of Trust, By-Laws, Registration Statement,
certified board resolutions approving the Management Agreement and this
Contract, written instructions and directions of the Board and CCM, and any
amendments or supplements to any of these materials as soon as practicable after
such materials become available; and further agrees to identify to the
Sub-Adviser in writing any broker-dealers that are affiliated with CCM (other
than CCM itself).
4. Expenses. During the term of this Contract, the Sub-Adviser will
bear all expenses incurred by it in connection with its services under this
Contract. The Sub-Adviser shall not be responsible for any expenses incurred by
the Trust, a Fund or CCM. CCM shall bear all costs of obtaining shareholder
approval of this Contract, if required by law.
5. Compensation.
(a) For the services provided and the expenses assumed by the
Sub-Adviser pursuant to this Contract, CCM, not each Fund, will pay to the
Sub-Adviser a sub-advisory fee, computed daily and paid monthly, at the annual
rate set forth on Schedule A hereto, as such schedule may be amended from time
to time. The sub-advisory fee will be based on the average daily net assets of a
Fund or Segment (computed in the manner specified in the Management Agreement)
and CCM will provide the Sub-Adviser with a schedule showing the manner in which
the fee was computed. If the Sub-Adviser is managing a Segment, its fees will be
based on the value of assets of the Fund within the Sub-Adviser's Segment.
(b) The fee shall be accrued daily and payable monthly to the
Sub-Adviser on or before the last business day of the next succeeding calendar
month.
(c) If this Contract becomes effective or terminates before the end of
any month, the fee for the period from the effective date to the end of the
month or from the beginning of such month to the date of termination, as the
case may be, shall be pro-rated according to the proportion that such period
bears to the full month in which such effectiveness or termination occurs.
6. Limitation of Liability.
(a) The Sub-Adviser shall not be liable for any error of judgment or
mistake of law or for any loss suffered by a Fund, the Trust, its shareholders
or by CCM in connection with the matters to which this Contract relates, except
a loss resulting from willful misfeasance, bad faith or gross negligence on its
part in the performance of its duties or from reckless disregard by it of its
obligations and duties under this Contract. Manager shall hold harmless and
indemnify Sub-Adviser, its affiliates, directors, officers, shareholders,
employees or agents for any loss not resulting from Sub-Adviser's gross
negligence, bad faith, or willful misfeasance on its part in the performance of
its duties or from its reckless disregard of its obligations and duties under
this Contract. Section 6 shall survive the termination of this Contract.
(b) In no event will the Sub-Adviser have any responsibilities for any
portion of a Fund's investments not managed by the Sub-Adviser or for the acts
or omissions of any other sub-adviser to the Trust or the Fund.
In particular, in the event the Sub-Adviser shall manage only
a portion of a Fund's investments, the Sub-Adviser shall have no responsibility
for the Fund's being in violation of any applicable law or regulation or
investment policy or restriction applicable to the Fund as a whole or for the
Fund's failing to qualify as a regulated investment company under the Code, if
the securities and other holdings of the Segment managed by the Sub-Adviser are
such that such Segment would not be in such violation or fail to so qualify if
such segment were deemed a separate series of the Trust or a separate "regulated
investment company" under the Code.
Nothing in this section shall be deemed a limitation or waiver
of any obligation or duty that may not by law be limited or waived.
7. Representations of Sub-Adviser. The Sub-Adviser represents, warrants
and agrees as follows:
(a) The Sub-Adviser (i) is registered as an investment adviser under
the Advisers Act; (ii) is not prohibited by the 1940 Act or the Advisers Act
from performing the services contemplated by this Contract; (iii) has met and
will seek to continue to meet for so long as this Contract remains in effect,
any other applicable federal or state requirements, or the applicable
requirements of any regulatory or industry self-regulatory agency necessary to
be met in order to perform the services contemplated by this Contract; (iv) has
the authority to enter into and perform the services contemplated by this
Contract; and (v) will promptly notify CCM of the occurrence of any event that
would disqualify the Sub-Adviser from serving as an investment adviser of an
investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics and
appropriate procedures complying with the requirements of Rule 17j-1 under the
1940 Act and will provide CCM and the Board with a copy of such code of ethics,
together with evidence of its adoption. Within fifteen days of the end of the
last calendar quarter of each year that this Contract is in effect, the
president or a vice president of the Sub-Adviser shall certify to CCM that the
Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous
year and that there has been no material violation of the Sub-Adviser's code of
ethics or, if such a violation has occurred, that appropriate action was taken
in response to such violation. Upon reasonable prior written request of CCM, the
Sub-Adviser shall permit CCM, its employees or its agents to examine the reports
required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other
records relevant to the Sub-Adviser's code of ethics.
(c) The Sub-Adviser will notify CCM of any change of control of the
Sub-Adviser, including any change of its general partners or 25% shareholders or
25% limited partners, as applicable, and any changes in the key personnel who
are either the portfolio manager(s) of a Fund or senior management of the
Sub-Adviser, in each case prior to, or promptly after, such change.
(d) The Sub-Adviser agrees that neither it, nor any of its affiliates,
will in any way refer directly or indirectly to its relationship with a Fund,
the Trust, CCM or any of their respective affiliates in offering, marketing or
other promotional materials without the prior express written consent of CCM.
8. Services Not Exclusive. The services furnished by the Sub-Adviser
hereunder are not to be deemed exclusive and the Sub-Adviser shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby or unless otherwise agreed to by the parties hereunder
in writing. Nothing in this Contract shall limit or restrict the right of any
trustee, director, officer or employee of the Sub-Adviser, who may also be on
the Board of Trustees of the Trust ("Trustee"), or an officer or employee of the
Trust, to engage in any other business or to devote his or her time and
attention in part to the management or other aspects of any other business,
whether of a similar nature or a dissimilar nature.
9. Duration and Termination.
(a) This Contract shall become effective upon the date first above
written, provided that this Contract shall not take effect unless it has first
been approved by a vote of a majority of those Trustees of the Trust who are not
parties to this Contract or interested persons of any such party ("Independent
Trustees"), cast in person at a meeting called for the purpose of voting on such
approval, and by vote of a majority of each Fund's outstanding voting
securities, unless CCM has authority to enter into this Contract pursuant to
exemptive relief from the SEC without a vote of each Fund's outstanding voting
securities.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from its effective date. Thereafter, if not
terminated, this Contract shall continue automatically for successive periods of
twelve months each, provided that such continuance is specifically approved at
least annually (i) by a vote of a majority of the Independent Trustees, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Board or by vote of a majority of the outstanding voting securities of
each Fund.
(c) Notwithstanding the foregoing, with respect to a Fund, this
Contract may be terminated at any time, without the payment of any penalty, by
vote of the Board or by a vote of a majority of the outstanding voting
securities of the Fund on 60 days' written notice to the Sub-Adviser. This
Contract may also be terminated, without the payment of any penalty, by CCM: (i)
upon 120 days' written notice to the Sub-Adviser; (ii) upon material breach by
the Sub-Adviser of any of the representations, warranties and agreements set
forth in Paragraph 7 of this Contract; or (iii) immediately if, in the
reasonable judgment of CCM, the Sub-Adviser becomes unable to discharge its
duties and obligations under this Contract, including circumstances such as
financial insolvency of the Sub-Adviser or other circumstances that could
adversely affect a Fund. The Sub-Adviser may terminate this Contract at any
time, without the payment of any penalty, on 120 days' written notice to CCM.
This Contract will terminate automatically in the event of its assignment or
upon termination of the Management Agreement, as it relates to each Fund.
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 Sub-Adviser
render services under this Agreement, it shall so notify the Sub-Adviser in
writing. If the Sub-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 compliance with the requirements of the 1940 Act and the rules and
regulations thereunder.
11. Amendment of this Contract. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. No amendment of this Contract as to a Fund
shall be effective until approved by vote of the Independent Trustees or a
majority of the Fund's outstanding voting securities, if required by law.
12. Governing Law. This Contract shall be construed in accordance with
the 1940 Act and the laws of the State of Indiana, without giving effect to the
conflicts of laws principles thereof. To the extent that the applicable laws of
the State of Indiana conflict with the applicable provisions of the 1940 Act,
the latter shall control.
13. Miscellaneous. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms "majority of the outstanding voting securities," "affiliated person,"
"interested person," "assignment," "broker," "investment adviser," "net assets,"
"sale," "sell" and "security" shall have the same meaning as such terms have in
the 1940 Act, subject to such exemption as may be granted by the SEC by any
rule, regulation or order. Where the effect of a requirement of the federal
securities laws reflected in any provision of this Contract is made less
restrictive by a rule, regulation or order of the SEC, whether of special or
general application, such provision shall be deemed to incorporate the effect of
such rule, regulation or order. This Contract may be signed in counterpart.
14. Notices. Any notice herein required is to be in writing and is
deemed to have been given to the Sub-Adviser or CCM upon receipt of the same at
their respective addresses set forth below. All written notices required or
permitted to be given under this Contract will be delivered by personal service,
by postage mail - return receipt requested or by facsimile machine or a similar
means of same day delivery which provides evidence of receipt (with a confirming
copy by mail as set forth herein). All notices provided to CCM will be sent to
the attention of Xxxxxxx X. Xxxxxxx, President and Chief Executive Officer, with
a copy thereof to Xxxxxxx X. Xxxxxx, Vice President and General Counsel, Conseco
Capital Management, Inc., 00000 X. Xxxxxxxxxxxx Xx., Xxxxxx, Xxxxxxx, 00000. All
notices provided to the Sub-Adviser will be sent to the attention of the
Compliance Officer.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized signatories as of the date and year first
above written.
CONSECO CAPITAL MANAGEMENT, INC.
00000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Secretary Title: President and Chief Executive
Officer
CHICAGO EQUITY PARTNERS, LLC
Attest:
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
Title: Managing Director Title: President
CONSECO FUND GROUP
SUB-ADVISORY CONTRACT
SCHEDULE A
Series Annual Fee
The equity portion of Conseco Balanced Fund 30 basis points
Conseco Equity Fund 30 basis points
Conseco Large-Cap Fund 30 basis points
(d)(8) Investment Sub-Advisory Agreement between Oak Associates, ltc. and
Conseco Capital Management, Inc., on behalf of the Conseco Science &
Technology and Conseco 20 Funds.
SUB-ADVISORY CONTRACT
Agreement made as of Friday, December 1, 2000 ("Contract") between
CONSECO CAPITAL MANAGEMENT, INC. ("CCM"), and Oak Associates, Ltd., a Ohio
limited liability company ("Sub-Adviser").
RECITALS
(1) CCM has entered into an Interim Investment Management Agreement,
dated Friday, December 1, 2000 ("Management Agreement"), with Conseco Fund Group
("Trust"), an open-end management investment company registered under the
Investment Company Act of 1940, as amended ("1940 Act"), with respect to all the
series of the Trust;
(2) CCM wishes to retain the Sub-Adviser to furnish certain investment
advisory and portfolio management services to CCM and the series of the Trust
listed on Schedule A hereto, as such schedule may be amended from time to time
(each a "Fund"); and
(3) The Sub-Adviser is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, CCM and the Sub-Adviser agree as follows:
1. Appointment. CCM hereby appoints the Sub-Adviser as an investment
sub-adviser with respect to each Fund for the period and on the terms set forth
in this Contract. The Sub-Adviser accepts that appointment and agrees to render
the services herein set forth, for the compensation herein provided.
2. Duties as Sub-Adviser.
(a) Subject to the supervision and direction of the Trust's Board of
Trustees ("Board") and review by CCM, and any written guidelines adopted by the
Board or CCM, the Sub-Adviser will provide a continuous investment program for
all or a designated portion of the assets ("Segment") of each Fund, including
investment research and discretionary management with respect to all securities
and investments and cash equivalents in each Fund or Segment. The Sub-Adviser
will determine from time to time what investments will be purchased, retained or
sold by each Fund or Segment. The Sub-Adviser will be responsible for placing
purchase and sell orders for investments and for other related transactions for
each Fund or Segment. The Sub-Adviser will be responsible for voting proxies of
issuers of securities held by each Fund or Segment. The Sub-Adviser understands
that each Fund's assets need to be managed so as to permit it to qualify or to
continue to qualify as a regulated investment company under Subchapter M of the
Internal Revenue Code, as amended ("Code"). The Sub-Adviser will provide
services under this Contract in accordance with each Fund's investment
objective, policies and restrictions as stated in the Trust's currently
effective registration statement under the 1940 Act, and any amendments or
supplements thereto ("Registration Statement").
(b) The Sub-Adviser agrees that, in placing orders with brokers, it
will seek to obtain the best net result in terms of price and execution;
provided that, on behalf of each Fund, the Sub-Adviser may, in its discretion
and in compliance with Section 28(e) of the Securities and Exchange Act of 1934,
use brokers that provide the Sub-Adviser with research, analysis, advice and
similar services to execute portfolio transactions on behalf of each Fund or
Segment, and the Sub-Adviser may pay to those brokers in return for brokerage
and research services a higher commission than may be charged by other brokers,
subject to the Sub-Adviser's determining in good faith that such commission is
reasonable in terms either of the particular transaction or of the overall
responsibility of the Sub-Adviser to each Fund and its other clients and that
the total commissions paid by each Fund or Segment will be reasonable in
relation to the benefits to each Fund over the long term. In no instance will
portfolio securities be purchased from or sold to CCM or the Sub-Adviser, or any
affiliated person thereof, except in accordance with the federal securities laws
and the rules and regulations thereunder. The Sub-Adviser may aggregate sales
and purchase orders with respect to the assets of each Fund or Segment with
similar orders being made simultaneously for other accounts advised by the
Sub-Adviser or its affiliates. Whenever the Sub-Adviser simultaneously places
orders to purchase or sell the same security on behalf of a Fund and one or more
other accounts advised by the Sub-Adviser, the orders will be allocated as to
price and amount among all such accounts in a manner that the Sub-Adviser
believes to be equitable over time to each account.
(c) The Sub-Adviser will maintain all books and records required to be
maintained pursuant to the 1940 Act and the rules and regulations promulgated
thereunder with respect to transactions by the Sub-Adviser on behalf of each
Fund or Segment, and will furnish the Board and CCM with such periodic and
special reports as the Board or CCM reasonably may request. In compliance with
the requirements of Rule 31a-3 under the 1940 Act, the Sub-Adviser hereby agrees
that all records that it maintains for a Fund are the property of the Trust,
agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act
any records that it maintains for the Trust and that are required to be
maintained by Rule 31a-1 under the 1940 Act, and further agrees to surrender
promptly to the Trust any records that it maintains for a Fund upon request by
the Trust; provided, however, that Sub-Adviser may retain copies of such
records.
(d) At such times as shall be reasonably requested by the Board or CCM,
the Sub-Adviser will provide the Board and CCM with economic and investment
analyses and reports as well as quarterly reports setting forth the performance
of a Fund or Segment, including an affirmative statement with respect to
compliance, employees gained or lost, accounts gained or lost and any litigation
or change of structure during the quarter, and make available to the Board and
CCM any economic, statistical and investment services that the Sub-Adviser
normally makes available to its institutional customers; provided, however, that
Sub-Adviser shall not be responsible for portfolio accounting or generating
reports derived from portfolio accounting information.
(e) The Sub-Adviser shall not be responsible for pricing portfolio
securities. The Fund's Administrator or Sub-Administrator shall price portfolio
securities. However, in accordance with procedures adopted by the Board, as
amended from time to time, the Sub-Adviser shall use its reasonable efforts to
assist in determining a fair value or valuation methodology for portfolio
securities for which market quotations are not readily available.
3. Further Duties. In all matters relating to the performance of this
Contract, the Sub-Adviser will seek to act in conformity with the Trust's
Declaration of Trust, By-Laws and Registration Statement and with the written
instructions and written directions of the Board and CCM; and will comply with
the requirements of the 1940 Act and, to the extent applicable, the Investment
Advisers Act of 1940, as amended ("Advisers Act") and the rules under each,
Subchapter M of the Internal Revenue Code ("Code"), as applicable to regulated
investment companies; and all other federal and state laws and regulations
applicable to the Trust and each Fund. CCM agrees to provide to the Sub-Adviser
copies of the Trust's Declaration of Trust, By-Laws, Registration Statement,
certified board resolutions approving the Management Agreement and this
Contract, written instructions and directions of the Board and CCM, and any
amendments or supplements to any of these materials as soon as practicable after
such materials become available; and further agrees to identify to the
Sub-Adviser in writing any broker-dealers that are affiliated with CCM (other
than CCM itself).
4. Expenses. During the term of this Contract, the Sub-Adviser will
bear all expenses incurred by it in connection with its services under this
Contract. The Sub-Adviser shall not be responsible for any expenses incurred by
the Trust, a Fund or CCM. CCM shall bear all costs of obtaining shareholder
approval of this Contract, if required by law.
5. Compensation.
(A) FOR THE SERVICES PROVIDED AND THE EXPENSES ASSUMED BY THE
SUB-ADVISER PURSUANT TO THIS CONTRACT, CCM, NOT EACH FUND, WILL PAY TO THE
SUB-ADVISER A SUB-ADVISORY FEE, COMPUTED DAILY AND PAID MONTHLY, AT THE ANNUAL
RATE SET FORTH ON SCHEDULE A HERETO, AS SUCH SCHEDULE MAY BE AMENDED FROM TIME
TO TIME. THE SUB-ADVISORY FEE WILL BE BASED ON THE AVERAGE DAILY NET ASSETS OF A
FUND OR SEGMENT (COMPUTED IN THE MANNER SPECIFIED IN THE MANAGEMENT AGREEMENT)
AND CCM WILL PROVIDE THE SUB-ADVISER WITH A SCHEDULE SHOWING THE MANNER IN WHICH
THE FEE WAS COMPUTED. IF THE SUB-ADVISER IS MANAGING A SEGMENT, ITS FEES WILL BE
BASED ON THE VALUE OF ASSETS OF THE FUND WITHIN THE SUB-ADVISER'S SEGMENT.
(B) THE FEE SHALL BE ACCRUED DAILY AND PAYABLE MONTHLY TO THE
SUB-ADVISER ON OR BEFORE THE LAST BUSINESS DAY OF THE NEXT SUCCEEDING CALENDAR
MONTH.
(c) If this Contract becomes effective or terminates before the end of
any month, the fee for the period from the effective date to the end of the
month or from the beginning of such month to the date of termination, as the
case may be, shall be pro-rated according to the proportion that such period
bears to the full month in which such effectiveness or termination occurs.
6. Limitation of Liability.
(a) The Sub-Adviser shall not be liable for any error of judgment or
mistake of law or for any loss suffered by a Fund, the Trust, its shareholders
or by CCM in connection with the matters to which this Contract relates, except
a loss resulting from willful misfeasance, bad faith or gross negligence on its
part in the performance of its duties or from reckless disregard by it of its
obligations and duties under this Contract. Manager shall hold harmless and
indemnify Sub-Adviser, its affiliates, directors, officers, shareholders,
employees or agents for any loss not resulting from Sub-Adviser's gross
negligence, bad faith, or willful misfeasance on its part in the performance of
its duties or from its reckless disregard of its obligations and duties under
this Contract. Section 6 shall survive the termination of this Contract.
(b) In no event will the Sub-Adviser have any responsibilities for any
portion of a Fund's investments not managed by the Sub-Adviser or for the acts
or omissions of any other sub-adviser to the Trust or the Fund.
In particular, in the event the Sub-Adviser shall manage only
a portion of a Fund's investments, the Sub-Adviser shall have no responsibility
for the Fund's being in violation of any applicable law or regulation or
investment policy or restriction applicable to the Fund as a whole or for the
Fund's failing to qualify as a regulated investment company under the Code, if
the securities and other holdings of the Segment managed by the Sub-Adviser are
such that such Segment would not be in such violation or fail to so qualify if
such segment were deemed a separate series of the Trust or a separate "regulated
investment company" under the Code.
Nothing in this section shall be deemed a limitation or waiver
of any obligation or duty that may not by law be limited or waived.
7. Representations of Sub-Adviser. The Sub-Adviser represents, warrants
and agrees as follows:
(a) The Sub-Adviser (i) is registered as an investment adviser under
the Advisers Act; (ii) is not prohibited by the 1940 Act or the Advisers Act
from performing the services contemplated by this Contract; (iii) has met and
will seek to continue to meet for so long as this Contract remains in effect,
any other applicable federal or state requirements, or the applicable
requirements of any regulatory or industry self-regulatory agency necessary to
be met in order to perform the services contemplated by this Contract; (iv) has
the authority to enter into and perform the services contemplated by this
Contract; and (v) will promptly notify CCM of the occurrence of any event that
would disqualify the Sub-Adviser from serving as an investment adviser of an
investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics and
appropriate procedures complying with the requirements of Rule 17j-1 under the
1940 Act and will provide CCM and the Board with a copy of such code of ethics,
together with evidence of its adoption. Within fifteen days of the end of the
last calendar quarter of each year that this Contract is in effect, the
president or a vice president of the Sub-Adviser shall certify to CCM that the
Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous
year and that there has been no material violation of the Sub-Adviser's code of
ethics or, if such a violation has occurred, that appropriate action was taken
in response to such violation. Upon reasonable prior written request of CCM, the
Sub-Adviser shall permit CCM, its employees or its agents to examine the reports
required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other
records relevant to the Sub-Adviser's code of ethics.
(c) The Sub-Adviser will notify CCM of any change of control of the
Sub-Adviser, including any change of its general partners or 25% shareholders or
25% limited partners, as applicable, and any changes in the key personnel who
are either the portfolio manager(s) of a Fund or senior management of the
Sub-Adviser, in each case prior to, or promptly after, such change.
(d) The Sub-Adviser agrees that neither it, nor any of its affiliates,
will in any way refer directly or indirectly to its relationship with a Fund,
the Trust, CCM or any of their respective affiliates in offering, marketing or
other promotional materials without the prior express written consent of CCM.
8. Services Not Exclusive. The services furnished by the Sub-Adviser
hereunder are not to be deemed exclusive and the Sub-Adviser shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby or unless otherwise agreed to by the parties hereunder
in writing. Nothing in this Contract shall limit or restrict the right of any
trustee, director, officer or employee of the Sub-Adviser, who may also be on
the Board of Trustees of the Trust ("Trustee"), or an officer or employee of the
Trust, to engage in any other business or to devote his or her time and
attention in part to the management or other aspects of any other business,
whether of a similar nature or a dissimilar nature.
9. Duration and Termination.
(a) This Contract shall become effective upon the date first above
written, provided that this Contract shall not take effect unless it has first
been approved by a vote of a majority of those Trustees of the Trust who are not
parties to this Contract or interested persons of any such party ("Independent
Trustees"), cast in person at a meeting called for the purpose of voting on such
approval, and by vote of a majority of each Fund's outstanding voting
securities, unless CCM has authority to enter into this Contract pursuant to
exemptive relief from the SEC without a vote of each Fund's outstanding voting
securities.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from its effective date. Thereafter, if not
terminated, this Contract shall continue automatically for successive periods of
twelve months each, provided that such continuance is specifically approved at
least annually (i) by a vote of a majority of the Independent Trustees, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Board or by vote of a majority of the outstanding voting securities of
each Fund.
(c) Notwithstanding the foregoing, with respect to a Fund, this
Contract may be terminated at any time, without the payment of any penalty, by
vote of the Board or by a vote of a majority of the outstanding voting
securities of the Fund on 60 days' written notice to the Sub-Adviser. This
Contract may also be terminated, without the payment of any penalty, by CCM: (i)
upon 120 days' written notice to the Sub-Adviser; (ii) upon material breach by
the Sub-Adviser of any of the representations, warranties and agreements set
forth in Paragraph 7 of this Contract; or (iii) immediately if, in the
reasonable judgment of CCM, the Sub-Adviser becomes unable to discharge its
duties and obligations under this Contract, including circumstances such as
financial insolvency of the Sub-Adviser or other circumstances that could
adversely affect a Fund. The Sub-Adviser may terminate this Contract at any
time, without the payment of any penalty, on 120 days' written notice to CCM.
This Contract will terminate automatically in the event of its assignment or
upon termination of the Management Agreement, as it relates to each Fund.
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 Sub-Adviser
render services under this Agreement, it shall so notify the Sub-Adviser in
writing. If the Sub-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 compliance with the requirements of the 1940 Act and the rules and
regulations thereunder.
11. Amendment of this Contract. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. No amendment of this Contract as to a Fund
shall be effective until approved by vote of the Independent Trustees or a
majority of the Fund's outstanding voting securities, if required by law.
12. Governing Law. This Contract shall be construed in accordance with
the 1940 Act and the laws of the State of Indiana, without giving effect to the
conflicts of laws principles thereof. To the extent that the applicable laws of
the State of Indiana conflict with the applicable provisions of the 1940 Act,
the latter shall control.
13. Miscellaneous. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms "majority of the outstanding voting securities," "affiliated person,"
"interested person," "assignment," "broker," "investment adviser," "net assets,"
"sale," "sell" and "security" shall have the same meaning as such terms have in
the 1940 Act, subject to such exemption as may be granted by the SEC by any
rule, regulation or order. Where the effect of a requirement of the federal
securities laws reflected in any provision of this Contract is made less
restrictive by a rule, regulation or order of the SEC, whether of special or
general application, such provision shall be deemed to incorporate the effect of
such rule, regulation or order. This Contract may be signed in counterpart.
14. Notices. Any notice herein required is to be in writing and is
deemed to have been given to the Sub-Adviser or CCM upon receipt of the same at
their respective addresses set forth below. All written notices required or
permitted to be given under this Contract will be delivered by personal service,
by postage mail - return receipt requested or by facsimile machine or a similar
means of same day delivery which provides evidence of receipt (with a confirming
copy by mail as set forth herein). All notices provided to CCM will be sent to
the attention of Xxxxxxx X. Xxxxxxx, President and Chief Executive Officer, with
a copy thereof to Xxxxxxx X. Xxxxxx, Vice President and General Counsel, Conseco
Capital Management, Inc., 00000 X. Xxxxxxxxxxxx Xx., Xxxxxx, Xxxxxxx, 00000. All
notices provided to the Sub-Adviser will be sent to the attention of the
Compliance Officer.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized signatories as of the date and year first
above written.
CONSECO CAPITAL MANAGEMENT, INC.
00000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Secretary Title: President and Chief Executive Officer
OAK ASSOCIATES, LTD.
Attest:
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxxxx
Name: Xxxx Xxxxxxxxx Name: Xxxxx X. Xxxxxxxxxxx
Title: Client Services Title: Investment Manager and CEO
CONSECO FUND GROUP
SUB-ADVISORY CONTRACT
SCHEDULE A
Series Annual Fee
Conseco 20 Fund 30 basis points
Conseco Science & Technology Fund 30 basis points
