Exhibit (h.1)
AMENDED AND RESTATED
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made as of the 22nd day of September, 2008, by and between
ULTRA SERIES FUND ("TRUST") a Massachusetts business trust, CUNA BROKERAGE
SERVICES, INC. ("DISTRIBUTOR"), a Wisconsin corporation, and CUNA MUTUAL
INSURANCE SOCIETY ("LIFE COMPANY"), a life insurance company organized under the
laws of the State of Iowa, on behalf of the pension and retirement plans set
forth in Appendix A, as amended from time to time (individually, "PLAN" and,
collectively, "PLANS").
WHEREAS, TRUST is registered with the Securities and Exchange Commission
("SEC") under the Investment Company Act of 1940, as amended ("1940 Act") as an
open-end, diversified management investment company; and
WHEREAS, TRUST is organized as a series fund comprised of several
portfolios ("Portfolios"), the currently available of which are listed on
Appendix B; and
WHEREAS, TRUST was organized to act as the funding vehicle for certain
variable life insurance and/or variable annuity contracts ("Variable Contracts")
offered by life insurance companies through separate accounts of such life
insurance companies ("Participating Insurance Companies"); and
WHEREAS, TRUST has received an order from the SEC, dated July 24, 1997
(File No. 812-10398), granting Participating Insurance Companies and their
separate accounts exemptions from certain provisions of the 1940 Act and its
related rules, to the extent necessary to permit shares of the Portfolios of
TRUST to be sold to and held by variable annuity and variable life insurance
separate accounts of both affiliated and unaffiliated life insurance companies
and certain qualified pension and retirement plans ("Order"); and
WHEREAS, LIFE COMPANY sponsors the PLANS and provides administrative
services comprised of, but not limited to, recordkeeping, reporting and
processing services to the PLANS and wishes to make the Portfolios available to
the PLANS;
WHEREAS, the PLANS are duly organized, validly existing retirement plans
qualified under Sections 401(a) and 501(a) of the Internal Revenue Code of 1986,
as amended ("Code");
WHEREAS, DISTRIBUTOR is registered with the SEC as a broker-dealer under
the Securities Exchange Act of 1934, as amended ("1934 Act"); and
WHEREAS, MEMBERS Capital Advisors, Inc. is the investment advisor and
administrator of the Trust; and
WHEREAS, the PLANS intend to purchase and the TRUST intends to sell shares
of one or more of the Portfolios at net asset value ("NAV"); and
WHEREAS, each of the PLANS and TRUST have entered into several
participation agreements dated as of October 31, 1997, as they may have been
amended from time to time ("Prior Agreements"); and
WHEREAS, LIFE COMPANY, on behalf of each of the PLANS, and TRUST wish to
replace all such Prior Agreements with this Agreement.
NOW, THEREFORE, in consideration of their mutual promises, LIFE COMPANY,
TRUST, and DISTRIBUTOR agree as follows:
Article I. SALE OF TRUST SHARES
1.1 TRUST agrees to make available to the PLANS shares of the selected
Portfolios listed in Appendix B for investment by the PLANS, such shares to be
offered as provided in TRUST's then-current prospectus.
1.2 TRUST agrees to sell to the PLANS those shares of the selected
Portfolios of TRUST which the LIFE COMPANY orders on behalf of the PLANS,
executing such orders on a daily basis at the NAV next computed after receipt by
TRUST or its designee of the order for the shares of TRUST. For purposes of this
Section 1.2, LIFE COMPANY shall be the designee of TRUST for receipt of such
orders from the PLANS and/or their participants and receipt by such designee
shall constitute receipt by TRUST; provided that TRUST receives notice of such
order by 9:30 a.m., Central Time (or at such other time upon which both parties
agree) on the next following Business Day. "Business Day" shall mean any day on
which the New York Stock Exchange is open for trading and on which TRUST
calculates its NAV pursuant to the rules of the SEC as described in the
then-current registration statement of TRUST on Form N-l A.
1.3 TRUST agrees to redeem for cash, on LIFE COMPANY's request, any full or
fractional shares of TRUST held by the PLANS, executing such requests on each
Business Day at the NAV next computed after receipt by TRUST or its designee of
the request for redemption. For purposes of this Section 1.3, LIFE COMPANY shall
be the designee of TRUST for receipt of requests for redemption from the PLANS
and/or their participants and receipt by such designee shall constitute receipt
by TRUST; provided that TRUST receives notice of such request for redemption by
9:30 a.m. Central Time (or at such other time upon which both parties agree) on
the next following Business Day.
1.4 TRUST shall furnish same-day notice to LIFE COMPANY of any income
dividends or capital gain distributions payable on the shares of any Portfolio
of TRUST. LIFE COMPANY hereby elects to receive all such income dividends and
capital gain distributions as are payable on a Portfolio's shares in additional
shares of the Portfolio. TRUST shall notify LIFE
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COMPANY of the number of shares so issued as payment of such dividends and
distributions. LIFE COMPANY reserves the right to revoke this election by
written notice to TRUST.
1.5 TRUST shall make the NAV per share for the selected Portfolios
available to LIFE COMPANY on each Business Day as soon as reasonably practicable
after the NAV per share is calculated but shall use its best efforts to make
such NAV available by 5:30 p.m. Central Time. If TRUST provides LIFE COMPANY
with materially incorrect share NAV information through no fault of LIFE
COMPANY, the PLANS shall be entitled to an adjustment to the number of shares
purchased or redeemed to reflect the correct share NAV. Any material error
(determined in accordance with SEC guidelines) in the calculation of NAV per
share, dividend or capital gain information shall be reported promptly upon
discovery to LIFE COMPANY. In the event that such material error is the result
of the TRUST's (or its designated agents) gross negligence, the TRUST shall also
be responsible for any of LIFE COMPANY's and/or PLANS' reasonable administrative
or other costs or losses incurred in correcting PLAN and participant accounts.
1.6 If LIFE COMPANY's order requests the net purchase of TRUST shares, LIFE
COMPANY shall pay for such purchase by wiring federal funds to TRUST or its
designated custodial account on the day the order is actually transmitted by
LIFE COMPANY by 2:00 p.m., Central Time (or at such other time upon which both
parties agree). If LIFE COMPANY's order requests a net redemption resulting in a
payment of redemption proceeds to LIFE COMPANY, TRUST shall wire the redemption
proceeds to LIFE COMPANY on the day the order is actually received by TRUST by
2:00 p.m. Central Time (or at such other time upon which both parties agree),
unless doing so would require TRUST to dispose of portfolio securities or
otherwise incur additional costs, but in such event, proceeds shall be wired to
LIFE COMPANY within seven business days and TRUST shall notify the person
designated in writing by LIFE COMPANY as the recipient for such notice of such
delay by 2:00 p.m. Central Time (or such other time upon which both parties
agree) the same business day that LIFE COMPANY transmits the redemption order to
TRUST.
1.7 Notwithstanding Section 1.6, TRUST reserves the right to suspend the
right of redemption or postpone the date of payment or satisfaction upon
redemption consistent with Section 22(e) of the 1940 Act and any rules
thereunder.
1.8 TRUST may refuse to sell shares of any Portfolio to any person, or
suspend or terminate the offering of the shares of any Portfolio if such action
is required by law or by regulatory authorities having jurisdiction or is, in
the sole discretion of the Board of Trustees of TRUST ("Board"), acting in good
faith and in light of its fiduciary duties under federal and any applicable
state laws, deemed necessary and in the best interests of the shareholders of
such Portfolios.
1.9 The issuance and transfer of TRUST shares shall be by book entry only.
Share certificates will not be issued to the PLANS.
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1.10 LIFE COMPANY shall be fully responsible to TRUST and DISTRIBUTOR for
the operation and qualification of the PLANS. LIFE COMPANY shall provide TRUST's
Prospectuses and Statements of Additional Information, and all amendments or
supplements to any of the foregoing to the PLANS, in accordance with state and
federal laws.
1.11 LIFE COMPANY has reasonable policies and procedures to comply with all
applicable state and federal laws and regulations addressing anti-money
laundering, including those adopted by the Federal Financial Crimes Enforcement
Network (FinCEN) and if required by such laws or regulations, to share with
TRUST information about individuals, entities, organizations and countries
suspected of possible terrorist or money "laundering" activities in accordance
with Section 314(b) of the USA Patriot Act. TRUST and DISTRIBUTOR shall comply
with all applicable state and federal laws and regulations addressing anti-money
laundering and if required by such laws or regulations, to share with LIFE
COMPANY information about individuals, entities, organizations and countries
suspected of possible terrorist or money "laundering" activities in accordance
with Section 314(b) of the USA Patriot Act.
Article II. REPRESENTATIONS AND WARRANTIES
2.1 LIFE COMPANY represents and warrants that it is an insurance company
duly organized and in good standing under the laws of Iowa and that it has
legally and validly established each PLAN as a qualified retirement plans under
the Code.
2.2 LIFE COMPANY represents and warrants that it shall deliver such
prospectuses, statements of additional information, proxy statements and
periodic reports of TRUST to the PLANS (and, if applicable, their participants)
as required to be delivered under applicable federal or state law.
2.3 TRUST represents and warrants that the Portfolio shares offered and
sold pursuant to this Agreement are or will be registered under the Securities
Act of 1933, as amended ("1933 Act"), and sold in accordance with all applicable
state and federal securities laws, and TRUST shall be registered under the 1940
Act prior to and at the time of any issuance or sale of such shares. TRUST shall
amend its registration, statement under the 1933 Act and the 1940 Act from time
to time as required in order to effect the continuous offering of its shares.
TRUST shall register and qualify its shares for sale in accordance with the
laws of the Various states if and to the extent necessary to perform its
obligations under this Agreement.
2.4 TRUST represents and warrants that each Portfolio is currently
qualified as a "regulated investment company" under Subchapter M of the Code,
that it will maintain such qualification under Subchapter M (or any successor or
similar provisions) and will notify LIFE COMPANY immediately upon having a
reasonable basis for believing any Portfolio has ceased to so qualify or might
not so qualify in the future.
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2.5 TRUST represents and warrants that to the extent that it decides to
finance distribution expenses pursuant to Rule 12b-l under the 1940 Act, it will
have a board of trustees, a majority of whom are not interested persons of the
TRUST, formulate and approve any plan under Rule 12b-l and will comply with
applicable provisions of SEC interpretations of the 1940 Act with respect to any
such distribution plan.
2.6 TRUST represents that it is lawfully organized and validly existing
under the laws of the State of Massachusetts and that it does and will comply in
all material respects with applicable state and federal securities laws.
2.7 TRUST represents and warrants that its directors, officers, employees
and other persons dealing with the money and/or securities of TRUST are and
shall continue to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the TRUST in an amount not less than the minimum
coverage as required by Rule 17g-l under the 1940 Act or related provisions as
may be promulgated from time to time.
2.8 DISTRIBUTOR represents and warrants that it is a member in good
standing of Financial Industry Regulatory Authority, Inc. ("FINRA") and is
registered as a broker-dealer under the 1934 Act. DISTRIBUTOR further represents
that it will sell and distribute TRUST's shares in accordance with any
applicable state and federal securities law.
2.9 Each party represents and warrants that the execution and delivery of
this Agreement and the consummation of the transactions contemplated herein have
been duly authorized by all necessary corporate or trust action, as applicable,
by such party, and, when so executed and delivered, this Agreement will be the
valid and binding obligation of such party enforceable in accordance with its
terms.
2.10 LIFE COMPANY represents and warrants that all orders for the purchase
and sale of TRUST shares submitted to the TRUST (or counted by LIFE COMPANY in
submitting a net order under Section 1.6 of the Agreement) for execution at a
price based on the NAV per share of the Portfolios next computed after receipt
by LIFE COMPANY on a particular Business Day, will have been received in good
order by LIFE COMPANY prior to the time as of which the TRUST calculates its NAV
per share on that Business Day, as disclosed in the then-current prospectus for
the pertinent Portfolio (the "trading deadline"), in accordance with Rule 22c-1
under the 1940 Act.
Article III. PROSPECTUS AND PROXY STATEMENTS
3.1 TRUST shall prepare and be responsible for filing with the SEC and any
state regulators requiring such filing all shareholder reports, notices, proxy
materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of additional information of TRUST.
TRUST shall bear the costs of registration and qualification of shares of the
Portfolios, preparation and filing of the documents listed in this Section 3.1
and all taxes to
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which an issuer is subject on the issuance and transfer of its shares, and any
expenses permitted to be paid or assumed by the TRUST pursuant to Rule 12b-l
under the 0000 Xxx.
3.2 TRUST will bear the printing costs (or duplicating costs with respect
to the statement of additional information) and mailing costs associated with
the delivery of TRUST (or individual Portfolio) documents, and any supplements
thereto, to the PLANS (regardless of whether such documents are printed together
with, or separate from, the documents for other funds available to the PLANS) or
rather may provide the LIFE COMPANY with a sufficient number of printed
documents pertaining to the following materials:
(a) prospectuses and statements of additional information;
(b) annual and semi-annual reports; and
(c) proxy materials (including, but not limited to, the proxy cards,
notice and statement).
If such documents are printed together with document for other investment
options available to the PLAN participants, TRUST is only responsible for the
pro rata costs of the pages applicable to TRUST.
TRUST shall be responsible for all costs of tabulating the votes of its
shareholders. LIFE COMPANY or the PLANS shall be responsible for all costs of
tabulating votes of PLAN participants, if applicable.
LIFE COMPANY will submit any bills for printing, duplicating and/or mailing
costs, relating to the TRUST documents described above, to TRUST for
reimbursement by TRUST. LIFE COMPANY shall monitor such costs and shall use its
best efforts to control these costs. Upon submission of any bills, LIFE COMPANY
will provide TRUST with, a current tabulation of the number of PLANS invested in
TRUST.
3.3 TRUST will provide the LIFE COMPANY, at TRUST's expense, with the
following TRUST (or individual Portfolio) documents, and any supplements
thereto:
(a) electronic PDF format of the current prospectus for printing by
the LIFE COMPANY;
(b) a copy of the statement of additional information suitable for
duplication;
(c) electronic PDF format of proxy material suitable for printing; and
(d) electronic PDF format of the annual and semi-annual reports for
printing by the LIFE COMPANY.
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3.4 TRUST will provide LIFE COMPANY with at least one complete copy of all
prospectuses, statements of additional information, annual and semi-annual
reports, proxy statements, exemptive applications and all amendments or
supplements to any of the above that relate to the Portfolios promptly after the
filing of each such document with the SEC or other regulatory authority.
3.5 Except with respect to information provided by LIFE COMPANY to TRUST in
writing, neither LIFE COMPANY nor the PLANS is responsible for the content of
TRUST's registration statement.
3.6 Except with respect to information provided by TRUST to LIFE COMPANY or
the PLANS in writing, TRUST is not responsible for the content of PLAN
materials.
3.7 For the avoidance of doubt, regulatory materials may be delivered
electronically rather than in paper to the extent all laws applicable to such
electronic delivery have been met.
Article IV. SALES MATERIALS; PRIVACY
4.1 LIFE COMPANY will furnish, or will cause to be furnished, to TRUST and
DISTRIBUTOR, each piece of sales literature or other promotional material in
which TRUST or DISTRIBUTOR is named, at least ten (10) Business Days prior to
its intended use. No such material will be used if TRUST or DISTRIBUTOR objects
to its use in writing within five (5) Business Days after receipt of such
material. For the purposes of this Agreement, "in writing" means facsimile
transmissions and electronic mail.
4.2 TRUST and DISTRIBUTOR will furnish, or will cause to be furnished, to
LIFE COMPANY, each piece of sales literature or other promotional material in
which LIFE COMPANY or the PLANS are named, at least ten (10) Business Days prior
to its intended use. No such material will be used if LIFE COMPANY objects to
its use in writing within five (5) Business. Days after receipt of such
material.
4.3 TRUST and its affiliates and agents shall not give any information or
make any representations on behalf of LIFE COMPANY or concerning LIFE COMPANY or
the PLANS, other than with the written permission of LIFE COMPANY.
4.4 LIFE COMPANY and its affiliates and agents shall not give any
information or make any representations on behalf of TRUST or concerning TRUST
other than the information or representations contained in a registration
statement or prospectus for TRUST, as such registration statement and prospectus
may be amended or supplemented from time to time, or in sales literature or
other promotional material approved by TRUST or its designee, except with the
written permission of TRUST.
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4.5 For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without limitation,
advertisements (such as material published, or designed for use, in a newspaper,
magazine or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures or other public media),
sales literature (such as any written communication distributed or made
generally available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, or reprints or
excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports and
proxy materials, and any other material constituting sales literature or
advertising under FINRA rules, the 1940 Act or the 0000 Xxx.
4.6 Subject to law and regulatory authority, each party hereto shall treat
as confidential all information pertaining to the PLANS and their participants
and all information reasonably identified as confidential in writing by any
other party hereto and, except as permitted by this Agreement, shall not
disclose, disseminate or utilize such names and addresses and other confidential
information until such time as it may come into the public domain without the
express written consent of the affected party. Each party hereto shall be solely
responsible for the compliance of their officers, directors, employees, agents,
independent contractors, and any affiliated and non-affiliated third parties
with all applicable privacy-related laws and regulations including but not
limited to the Xxxxx-Xxxxx-Xxxxxx Act and Regulation S-P. The provisions of this
Section 4.6 shall survive the termination of this Agreement.
Article V. POTENTIAL CONFLICTS
5.1 The Board will monitor TRUST for the existence of any material
irreconcilable conflict between the interests of the various variable contracts
and retirement plan shareholders of TRUST. A material irreconcilable conflict
may arise for a variety of reasons, including: (a) state insurance regulatory
authority action; (b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling, or
any similar action by insurance, tax, or securities regulatory authorities; (c)
an administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of the TRUST are being managed; (e) a difference
in voting instructions given by variable annuity and variable life insurance
contract owners or by contract owners of different Participating Insurance
Companies and the PLANS (or their participants, if applicable); or (f) a
decision by a Participating Insurance Company to disregard voting instructions
of Variable Contract owners or by the PLANS to disregard voting instructions of
their participants, if applicable. The Board shall promptly inform LIFE COMPANY
if it determines that a material irreconcilable conflict exists and the
implications of such conflict.
5.2 LIFE COMPANY will report any potential or existing conflicts of which
it is aware to the Board. LIFE COMPANY will be responsible for assisting the
Board in carrying out its
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responsibilities under the conditions set forth in the Order, by providing the
Board with all information reasonably necessary for it to consider any issues
raised.
5.3 If a majority of the Board or a majority of its independent Trustees
determines that a material irreconcilable conflict exists, LIFE COMPANY and/or
the PLANS, at their expense and to the extent reasonably practicable (as
determined by a majority of independent Trustees), will take any steps necessary
to remedy or eliminate the irreconcilable material conflict, including (1)
establishing a new investment option and (2)(a) withdrawing PLAN assets subject
to the conflict from the Portfolio and reinvesting such assets in a different
investments medium or (b) submitting the question of whether such withdrawal
should be implemented to a vote of all affected PLAN participants and, as
appropriate, segregating the assets of any group of such participants that vote
in favor of such withdrawal or offering those participants the option of making
such a change. LIFE COMPANY and/or the PLANS will carry out this responsibility
with a view only to the interests of the PLAN participants.
For the purposes of this Section 5.3, a majority of the independent
trustees of the Board shall determine whether or not any proposed action
adequately remedies any material irreconcilable conflict, but in no event will
the TRUST or MEMBERS Capital Advisors, Inc. (or any other investment adviser of
the TRUST) be required to establish a new funding medium for any PLAN if an
offer to do so has been declined by a majority of the PLAN's participants
adversely affected by the conflict.
5.4 No less than annually, the TRUST will request from the LIFE COMPANY
such reports, materials or data as the Board may reasonably request so that the
Board may fully carry out the obligations imposed upon it by the Order. Such
reports, materials, and data shall be requested more frequently if deemed
appropriate by the Board.
Article VI. VOTING
6.1 PLANS will ensure that TRUST shares are voted as required by applicable
law and governing PLAN documents. PLANS will provide pass-through voting
privileges to plan participants to the extent required by PLAN documents.
6.2 If a material irreconcilable conflict arises because of a PLAN's
decision to disregard the voting instructions PLAN participants, if applicable,
and that decision represents a minority position or would preclude a majority
vote at any TRUST shareholder meeting, the, at the request of the Board, the
PLAN will redeem the Portfolio shares to which the disregarded vote relates. No
charge or penalty will be imposed in connection with such a redemption.
Article VII. INDEMNIFICATION
7.1 Indemnification by LIFE COMPANY. LIFE COMPANY agrees to indemnify and
hold harmless TRUST and DISTRIBUTOR and each of their trustees, directors,
officers,
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employees and agents and each person, if any, who controls or is affiliated with
TRUST or DISTRIBUTOR within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Article VII)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of LIFE COMPANY, which consent shall not
be unreasonably withheld) or litigation (including reasonable legal and other
expenses), to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements:
(a) arise out of or as a result of statements or representations
supplied by LIFE COMPANY or persons under its control or wrongful conduct
of LIFE COMPANY or any of its directors, officers, employees or agents,
with respect to the sale or distribution of TRUST shares; or
(b) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, or sales
literature of TRUST or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with information
furnished to TRUST for inclusion therein by or on behalf of LIFE COMPANY;
or
(c) arise as a result of any failure by LIFE COMPANY to substantially
provide the services and furnish the materials under the terms of this
Agreement; or
(d) arise out of or result from any material breach of any
representation and/or warranty made by LIFE COMPANY in this Agreement or
arise out of or result from any other material breach of this Agreement by
LIFE COMPANY.
7.2 LIFE COMPANY shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation incurred
or assessed against an Indemnified Party as such may arise from such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations or duties under this Agreement or to TRUST,
whichever is applicable.
7.3 LIFE COMPANY shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified LIFE COMPANY in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify LIFE COMPANY of any
such claim shall not relieve LIFE COMPANY from any liability which it may have
to the Indemnified Party against whom such action is brought
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otherwise than on account of this indemnification provision, except to the
extent LIFE COMPANY has been prejudiced by such failure to give notice, In case
any such action is brought against an Indemnified Party, LIFE COMPANY shall be
entitled to participate at its own expense in the defense of such action. LIFE
COMPANY also shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to the party named in the action. After notice from LIFE
COMPANY to such party of LIFE COMPANY's election to assume the defense thereof,
the Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and LIFE COMPANY will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
7.4 Indemnification by DISTRIBUTOR. DISTRIBUTOR agrees to indemnify and
hold harmless LIFE COMPANY and each of its directors, officers, employees, and
agents and each person, if any, who controls LIFE COMPANY within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for the
purposes of this Article VII) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
DISTRIBUTOR which consent shall not be unreasonably withheld) or litigation
(including reasonable legal and other expenses) to which the Indemnified Parties
may become subject under any statute, or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement, prospectus or sales literature of TRUST (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished to DISTRIBUTOR or TRUST by or on behalf of LIFE
COMPANY for use in the registration statement or prospectus for TRUST or in
sales literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the TRUST shares; or
(b) arise out of or as a result of statements or representations
supplied by DISTRIBUTOR or persons under its control or wrongful conduct of
TRUST or DISTRIBUTOR or persons under their control, with respect to the
sale or distribution of TRUST shares; or
(c) arise as a result of (i) a failure by TRUST to substantially
provide the services and furnish the materials under the terms of this
Agreement; or (ii) a failure by a Portfolio(s) to qualify as a "regulated
investment company" under Subchapter M of the Code; or
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(d) arise out of or result from any material breach of any
representation and/or warranty made by DISTRIBUTOR or TRUST in this
Agreement or arise out of or result from any other material breach of this
Agreement by DISTRIBUTOR or TRUST.
7.5 DISTRIBUTOR shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation to which
an Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to LIFE
COMPANY.
7.6 DISTRIBUTOR shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified DISTRIBUTOR in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify DISTRIBUTOR of any such claim shall not
relieve DISTRIBUTOR from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
indemnification provision, except to the extent DISTRIBUTOR has been prejudiced
by such failure to give notice. In case any such action is brought against the
Indemnified Parties, DISTRIBUTOR shall be entitled to participate at its own
expense in the defense thereof. DISTRIBUTOR also shall be entitled to assume the
defense thereof, with counsel reasonably satisfactory to the party named in the
action. After notice from DISTRIBUTOR to such party of DISTRIBUTOR's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and DISTRIBUTOR will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
7.7 The provisions of this Article VII shall survive the termination of
this Agreement.
Article VII. TERM; TERMINATION
8.1 This Agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions herein.
8.2 This Agreement shall terminate in accordance with the following
provisions:
(a) At the option of LIFE COMPANY or TRUST at any time from the date
hereof upon 60 days' notice, unless a shorter time is agreed to by the
parties;
(b) At the option of LIFE COMPANY, upon the institution of formal
proceedings against TRUST or DISTRIBUTOR by the SEC, FINRA or any other
regulatory body, the expected or anticipated ruling, judgment or outcome of
which would, in LIFE
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COMPANY's reasonable judgment, materially impair TRUST's or DISTRIBUTOR ability
to meet and perform their respective obligations and duties hereunder. Prompt
notice of election to terminate shall be furnished by LIFE COMPANY with said
termination to be effective ten (10) days after receipt of notice;
(c) At the option of TRUST, upon the institution of formal proceedings
against LIFE COMPANY by the SEC, FINRA or any other regulatory body, the
expected or anticipated ruling, judgment or outcome of which would, in TRUST's
reasonable judgment, materially impair LIFE COMPANY's ability to meet and
perform its obligations and duties hereunder. Prompt notice of election to
terminate shall be furnished by TRUST with said termination to be effective ten
(10) days after receipt of notice;
(d) At the option of LIFE COMPANY, in the event TRUST's shares are not
registered, issued or sold in accordance with applicable state or federal law,
or such law precludes the use of such shares by the PLANS. Termination shall be
effective ten (10) days after notice to TRUST;
(e) At the option of TRUST, if the PLANS cease to qualify as retirement
plans under the Code. Termination shall be effective ten (10) days after receipt
of notice by LIFE COMPANY;
(f) At the option of LIFE COMPANY, upon TRUST's breach of any material
provision of this Agreement, which breach has not been cured to the satisfaction
of LIFE COMPANY within ten (10) days after written notice of such breach is
delivered to TRUST;
(g) At the option of TRUST, upon LIFE COMPANY's breach of any material
provision of this Agreement, which breach has not been cured to the satisfaction
of TRUST within ten (10) days after written notice of such breach is delivered
to LIFE COMPANY;
(h) At the option of LIFE COMPANY, in the event that any Portfolio ceases
to qualify as a regulated investment company under Subchapter M of the Code or
under any successor or similar provision, or if LIFE COMPANY reasonably believes
that any Portfolio may fail to so qualify. Termination shall be effective ten
(10) days after notice to the TRUST;
(i) In the event this Agreement is assigned without the prior written
consent of LIFE COMPANY, TRUST and DISTRIBUTOR, termination shall be effective
ten (10) days after such occurrence without notice; and
(j) At the option of the LIFE COMPANY, it may substitute shares of another
investment company or series thereof for shares of the TRUST in accordance with
the terms of the PLANS, provided that the LIFE COMPANY has given at least
forty-five days prior written notice to the TRUST of the date of substitution.
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Article IX. NOTICES
Any notice hereunder shall be given by registered or certified mail return
receipt requested to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify in
writing to the other party.
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Office of the General Counsel
Notice shall be deemed given on the date of receipt by the addressee as
evidenced by the return receipt.
Article X. MISCELLANEOUS
10.1 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
10.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.3 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Wisconsin. It
shall also be subject to the provisions of the federal securities laws and the
rules and regulations thereunder and to any orders of the SEC granting exemptive
relief therefrom and the conditions of such orders.
10.4 The parties agree that the assets and liabilities of each Portfolio
are separate and distinct from the assets and liabilities of each other
Portfolio. No Portfolio shall be liable or shall be charged for any debt,
obligation or liability of any other Portfolio. No Trustee, officer or agent
shall be personally liable for such debt, obligation or liability of any
Portfolio.
10.5 Each party shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, FINRA and state
insurance regulators) and shall permit such authorities reasonable access to its
books and records in connection with any investigation or inquiry relating to
this Agreement or the transactions contemplated hereby. However, such access
shall not extend to attorney-client privileged information.
10.6 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
14
10.7 No provision of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by TRUST,
DISTRIBUTOR and the LIFE COMPANY.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Fund Participation Agreement as of the date and year first
above written.
CUNA BROKERAGE SERVICES, INC. ULTRA SERIES FUND
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
--------------------------------- ------------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
Title: President Title: President
CUNA MUTUAL INSURANCE SOCIETY
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
15
APPENDIX A
PLANS
CUNA Mutual Pension Plan for Non-represented Employees
CUNA Mutual Pension Plan for Represented Employees
00
XXXXXXXX X
PORTFOLIOS
Conservative Allocation Fund
Moderate Allocation Fund
Aggressive Allocation Fund
Money Market Fund
Bond Fund
High Income Fund
Diversified Income Fund
Large Cap Value Fund
Large Cap Growth Fund
Mid Cap Value Fund
Mid Cap Growth Fund
Global Securities Fund
International Stock Fund
17
