Exhibit (d) 4.(a)
MULTI-CAP GROWTH STOCK PORTFOLIO
OF THE
ULTRA SERIES FUND
FORM OF AMENDMENT NO. 3 TO
INVESTMENT SUB-ADVISORY AGREEMENT
BETWEEN
MEMBERS CAPITAL ADVISORS, INC.
AND
WELLINGTON MANAGEMENT COMPANY, LLP
THIS Amendment No. 3 to INVESTMENT SUB-ADVISORY AGREEMENT
("AGREEMENT"), effective as of the 1st day of May, 2002, by and between MEMBERS
CAPITAL ADVISORS, INC., an Iowa corporation (the "ADVISER"), and WELLINGTON
MANAGEMENT COMPANY, LLP, a Massachusetts limited liability partnership (the
"SUB-ADVISER").
Adviser and Sub-Adviser agree as follows:
1. Adviser hereby engages the services of Sub-Adviser in connection with
Adviser's management of a portion of the assets (which could be up to 100%) of
the MULTI-CAP GROWTH STOCK FUND (the "PORTFOLIO") of the ULTRA SERIES FUND (the
"FUND"). Adviser intends to use a manager of managers approach to the management
of the Portfolio, as well as other portfolios in the Fund. Therefore, the number
of sub-advisers and the percentage of assets of the Portfolio managed by each
sub-adviser will be determined by the Fund's Board of Trustees and the Adviser
from time to time. The portion of the assets assigned to the Sub-Adviser,
whether 100% of the Portfolio or less, will be referred to herein as the
"Sub-Portfolio." Pursuant to this Agreement and subject to the oversight and
supervision by Adviser and the officers and the Board of Trustees of the Fund,
Sub-Adviser shall manage the investment and reinvestment of the assets of the
Sub-Portfolio as requested by the Adviser.
2. Sub-Adviser hereby accepts employment by Adviser in the foregoing
capacity and agrees, at its own expense, to render the services set forth herein
and to provide the office space, furnishings, equipment and personnel required
by it to perform such services on the terms and for the compensation provided in
this Agreement.
3. In particular, Sub-Adviser shall furnish continuously an investment
program for the Sub-Portfolio and shall determine from time to time in its
discretion the securities and other investments to be purchased or sold or
exchanged and what portions of the Sub-Portfolio shall be held in various
securities, cash or other investments. In this connection, Sub-Adviser shall
provide Adviser and the officers and Trustees of the Fund with such reports and
documentation as the latter shall reasonably request regarding Sub-Adviser's
management of the Sub-Portfolio's assets.
4. Sub-Adviser shall carry out its responsibilities under this Agreement
in compliance with: (a) the Portfolio's investment objective, policies and
restrictions as set forth in the Fund's current registration statement, (b) such
policies or directives as the Fund's Trustees may from time to time establish or
issue, and (c) applicable law and related regulations. Adviser shall promptly
notify Sub-Adviser of changes to (a) or (b) above and shall notify Sub-Adviser
of changes to (c) above promptly after it becomes aware of such changes.
5. The Sub-Adviser and Adviser acknowledge that the Sub-Adviser is not the
compliance agent for the Fund or for the Adviser, and does not have access to
all of the Fund's or the Portfolio's books and records necessary to perform
certain compliance testing. To the extent that the Sub-Adviser has agreed to
perform the services specified in this Agreement in accordance with the Fund's
registration statement, the Fund's Declaration of Trust, the Portfolio's
prospectus and any policies adopted by the Fund's Board of Trustees applicable
to the Portfolio, and in accordance with applicable law, the Sub-Adviser shall
perform such services based upon its books and records with respect to the
Portfolio, which comprise a portion the Portfolio's books and records, and upon
information and written instructions received from the Fund or the Adviser, and
shall not be held responsible under this Agreement so long as it performs such
services in accordance with this Agreement, the policies of the Fund's Board of
Trustees and applicable law based upon such books and records and such
information and instructions provided by the Fund or the Adviser. The Adviser
shall promptly provide the Sub-Adviser with copies of the Fund's registration
statement, the Fund's Declaration of Trust, the Portfolio's currently effective
prospectus and any written policies or procedures adopted by the Fund's Board of
Trustees applicable to the Portfolio and any amendments or revisions thereto.
6. The Sub-Adviser shall have full and complete discretion to establish
brokerage accounts with one or more brokers, dealers or other financial
intermediaries as Sub-Adviser may select, including those which from time to
time may furnish to Sub-Adviser or its affiliates statistical and investment
research information and other services. Sub-Adviser will place orders with or
through such brokers, dealers or other financial intermediaries in accordance
with Wellington Management's Statement of Policy on Brokerage Practices and the
policy with respect to brokerage set forth in the Fund's Registration Statement
or as the Board of Trustees or the Adviser may direct from time to time, in
conformity with federal securities laws
On occasions when Sub-Adviser deems the purchase or sale of a security
to be in the best interest of the Sub-Portfolio as well as other clients of the
Sub-Adviser, the Sub-Adviser to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be purchased or sold to attempt to obtain a more favorable price or lower
brokerage commissions and efficient execution. In such event, allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transactions, will be made by the Sub-Adviser in the manner the Sub-Adviser
considers to be the most equitable and consistent with its fiduciary obligations
to the Portfolio and to its other clients.
7. Unless the Adviser gives the Sub-Adviser written instructions to the
contrary, the Sub-Adviser shall use its good faith judgment in a manner which it
reasonably believes best serves the interests of the Portfolio's shareholders to
vote or abstain from voting all proxies solicited by or with respect to the
issuers of securities in which assets of the Portfolio may be invested.
The Sub-Adviser shall not file class action claims or derivative
shareholder claims on behalf of the Sub-Advised Funds. However, the Sub-Adviser
will provide transaction information to the Client or custodian upon reasonable
request.
8. Sub-Adviser's services under this Agreement are not exclusive.
Sub-Adviser may provide the same or similar services to other clients.
Sub-Adviser shall for all purposes herein be deemed to be an independent
contractor and shall, unless otherwise expressly provided or authorized, have no
authority to act for or represent the Adviser, the Fund or the Portfolio or
otherwise be deemed agents of the Adviser, the Fund or the Portfolio.
9. For the services rendered, the facilities furnished and the expenses
assumed by Sub-Adviser, Adviser shall pay Sub-Adviser at the end of each month,
a fee based on the average daily net assets of the Sub-Portfolio at the annual
rates of 0.50% of the first $100 million, and 0.40% over $100 million.
Sub-Adviser's fee shall be accrued daily at 1/365th of the applicable annual
rate set forth above. For the purpose of accruing compensation, the net assets
of the Sub-Portfolio shall be determined in the manner and on the dates set
forth in the current prospectus of the Fund, and, on days on which the net
assets are not so determined, the net asset value computation to be used shall
be as determined on the next day on which the net assets shall have been
determined. In the event of termination of this Agreement, all compensation due
through the date of termination will be calculated on a pro-rated basis through
the date of termination and paid within thirty business days of the date of
termination.
During any period when the determination of net asset value is
suspended, the net asset value of the Sub-Portfolio as of the last business day
prior to such suspension shall for this purpose be deemed to be the net asset
value at the close of each succeeding business day until it is again determined.
10. The Sub-Adviser shall maintain all books and records with respect to
the Sub-Advised Fund's portfolio transactions required by subparagraphs (b)(5),
(6), (7), (9), (10) and (11) and paragraph (f) of Rule 31a-1 under the
Investment company Act of 1940, as amended (the "1940 Sub-Act") and shall render
to the Manager such periodic and special reports as the Manager may reasonably
request.
Sub-Adviser agrees that all books and records which it maintains for
the Sub-Portfolio or the Fund pursuant to this section are the property of the
Fund and further agrees to surrender promptly to the Adviser or the Fund any
such books, records or information upon the Adviser's or the Fund's request. All
such books and records shall be made available, within five business days of a
written request, to the Fund's accountants or auditors during regular business
hours at Sub-Adviser's offices. Adviser and the Fund or either of their
authorized representative shall have the right to copy any records in the
possession of Sub-Adviser which pertain to the Portfolio or the Fund. Such
books, records, information or reports shall be made available to properly
authorized government representatives consistent with state and federal law
and/or regulations. In the event of the termination of this Agreement, all such
books, records or other information shall be returned to Adviser or the Fund
free from any claim or assertion of rights by Sub-Adviser.
11. The Adviser and Sub-Adviser shall cooperate with each other in
providing information, reports and other materials to regulatory and
administrative bodies having proper jurisdiction over the Portfolio, the Adviser
and the Sub-Adviser in connection with the services provided pursuant to this
Agreement; provided, however, that this agreement to cooperate does not apply to
the provision of information, reports and other materials which either the
Adviser or the Sub-Adviser reasonably believes the regulatory or administrative
body does not have the authority to request or is the privileged or confidential
information of the Adviser or Sub-Adviser.
12. Each party to this agreement agrees that it will not disclose or use
any records or information of the other party (the "non-disclosing party")
obtained pursuant to this Agreement in any manner whatsoever except as
authorized in this Agreement and that it will keep confidential any non-public
information obtained pursuant to this Agreement and disclose such information
only if non-disclosing party (or the Fund, in cases where the non-disclosing
party is the Adviser) has authorized such disclosure, or if such disclosure is
required by federal or state regulatory authorities.
13. In the absence of willful misfeasance, bad faith or gross negligence on
the part of Sub-Adviser or its officers, Trustees or employees, or reckless
disregard by Sub-Adviser of its duties under this Agreement, Sub-Adviser shall
not be liable to Adviser, the Portfolio, the Fund or to any shareholder of the
Portfolio for any act or omission in the course of, or connected with, rendering
services hereunder or for any losses that may be sustained in the purchase,
holding or sale of any security, except to the extent specified in Section 36(b)
of the 1940 Act concerning loss resulting from a breach of fiduciary duty with
respect to the receipt of compensation for services.
14. Representations and Warranties.
a. Adviser represents and warrants that:
(1) Adviser is registered with the U.S. Securities and
Exchange Commission under the Advisers Act. The Adviser shall remain so
registered throughout the term of this Agreement and shall notify Sub-Adviser
immediately if Adviser ceases to be so registered as an investment adviser;
(2) The Adviser is a corporation duly organized and
validly existing under the laws of the State of Iowa with the power to own and
possess its assets and carry on its business as it is now being conducted;
(3) The execution, delivery and performance by the
Adviser of this Agreement are within the Adviser's powers and have been duly
authorized by all necessary action on the part of its directors, and no action
by or in respect of, or filing with, any governmental body, agency or official
is required on the part of the Adviser for the execution, delivery and
performance of this Agreement by the parties hereto, and the execution, delivery
and performance of this Agreement by the parties hereto does not contravene or
constitute a default under: (a) any provision of applicable law, rule or
regulation; (b) the Advisers' Articles of Incorporation or Bylaws; or (c) any
agreement, judgment, injunction, order, decree or other instruments binding upon
the Adviser;
(4) This Agreement is a valid and binding Agreement of
the Adviser;
(5) The Adviser has provided the Sub-Adviser with a copy
of its Form ADV as most recently filed with the Securities and Exchange
Commission ("SEC") and the Adviser further represents that it will, within a
reasonable time after filing any amendment to its Form ADV with the SEC furnish
a copy of such amendments to the Sub-Adviser. The information contained in the
Adviser's Form ADV is accurate and complete in all material respects and does
not omit to state any material fact necessary in order to make the statements
made, in light of the circumstances under which they are made, not misleading;
and
(6) The Adviser acknowledges that it received a copy of
the Sub-Adviser's current Form ADV, at least 48 hours prior to the execution of
this Agreement and has delivered a copy of the same to the Fund.
b. Sub-Adviser represents and warrants that:
(1) Sub-Adviser is registered with the U.S. Securities
and Exchange Commission under the Advisers Act. The Sub-Adviser shall remain so
registered throughout the term of this Agreement and shall notify Adviser
immediately if Sub-Adviser ceases to be so registered as an investment adviser;
(2) The Sub-Adviser is a limited liability partnership
duly organized and validly existing under the laws of the Commonwealth of
Massachusetts with the power to own and possess its assets and carry on its
business as it is now being conducted;
(3) The execution, delivery and performance by the
Sub-Adviser of this Agreement are within the Sub-Adviser's powers and have been
duly authorized by all necessary action on the part of its directors, and no
action by or in respect of, or filing with, any governmental body, agency or
official is required on the part of the Sub-Adviser for the execution, delivery
and performance of this Agreement by the parties hereto, and the execution,
delivery and performance of this Agreement by the parties hereto does not
contravene or constitute a default under: (a) any provision of applicable law,
rule or regulation; (b) the Sub-Advisers Articles of Incorporation or Bylaws; or
(c) any agreement, judgment, injunction, order, decree or other instruments
binding upon the Sub-Adviser;
(4) This Agreement is a valid and binding Agreement of
the Sub-Adviser;
(5) The Sub-Adviser has provided the Adviser with a copy
of its Form ADV as most recently filed with the SEC and the Sub-Adviser further
represents that it will, within a reasonable time after filing any amendment to
its Form ADV with the SEC furnish a copy of such amendments to the Adviser. The
information contained in the Sub-Adviser's Form ADV is accurate and complete in
all material respects and does not omit to state any material fact necessary in
order to make the statements made, in light of the circumstances under which
they are made, not misleading; and
(6) The Sub-Adviser acknowledges that it received a copy
of the Adviser's current Form ADV, at least 48 hours prior to the execution of
this Agreement and has delivered a copy of the same to the Fund.
15. The Adviser will not use, and will not permit the Fund to use, the
Sub-Adviser's name (or that of any affiliate) or any derivative thereof or logo
associated therewith in Fund literature without prior review and approval by the
Sub-Adviser.
16. This Agreement shall not become effective unless and until it is
approved by the Board of Trustees of the Fund, including a majority of Trustees
who are not parties to this Agreement or interested persons of any such party to
this Agreement. This Agreement shall come into full force and effect on the date
which it is so approved. This Agreement shall continue in effect for two years
and shall thereafter continue in effect from year to year so long as such
continuance is specifically approved at least annually by (i) the Board of
Trustees of the Fund, or by the vote of a majority of the outstanding votes
attributable to shares of the class of stock representing an interest in the
Portfolio; and (ii) a majority of those Trustees who are not parties to this
Agreement or interested persons of any such party cast in person at a meeting
called for the purpose of voting on such approval.
17. This Agreement may be terminated at any time without the payment of any
penalty, by the Fund's Board of Trustees, or by vote of a majority of the
outstanding votes attributable to shares of the class of stock representing an
interest in the Portfolio on sixty (60) days written notice to the Adviser and
Sub-Adviser, or by the Adviser, or by the Sub-Adviser, on sixty (60) days
written notice to the other. This Agreement shall automatically terminate in the
event of its assignment or in the event of the termination of the investment
advisory agreement between the Adviser and the Fund regarding the Adviser's
management of the Portfolio.
18. This Agreement may be amended by either party only if such amendment is
specifically approved by a majority of those Trustees who are not parties to
this Agreement or interested persons of any such party cast in person at a
meeting called for the purpose of voting on such approval.
19. The terms "assignment", "affiliated person" and "interested person",
when used in this Agreement, shall have the respective meanings specified in the
1940 Act. The term "majority of the outstanding votes attributable to shares of
the class" means the lesser of (a) 67% or more of the shares of such class
present at a meeting if more than 50% of such shares are present or represented
by proxy or (b) more than 50% of the votes attributable to the shares of such
class.
20. This Agreement shall be construed in accordance with laws of the
Commonwealth of Massachusetts, and applicable provisions of the Advisers Act.
21. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
MEMBERS CAPITAL ADVISORS, INC.
By:
_________________________________
ATTEST:
___________________
WELLINGTON MANAGEMENT COMPANY, LLP
By:
_________________________________
Title:
ATTEST:
___________________
