DISTRIBUTION AGREEMENT
This Agreement is made by and between Mosaic Funds Distributor, LLC a Wisconsin
limited liability corporation having its principal place of business in
Scottsdale, Arizona (the "Distributor"), and MEMBERS Mutual Funds, a statutory
trust organized and existing under the laws of the state of Delaware and the
Ultra Series Fund, a business trust organized and existing under the laws of the
state of Massachusetts (together, the "Trusts" and individually a "Trust").
In consideration of the mutual covenants contained herein and for other good and
valuable consideration, the parties hereto, intending so to be legally bound,
agree with each other as follows:
1. Appointment of Distributor. Except as otherwise provided herein, each of the
Trusts hereby appoint the Distributor its exclusive agent to offer and
distribute shares of the Trusts at the public offering price thereof described
and set forth in the Trusts' current prospectus(es). The Distributor hereby
accepts such appointment. The Distributor shall have no obligation to sell,
distribute or redeem any specific amount of the Trusts' shares.
2. Scope of Authority. The Distributor is authorized act as the MEMBERS Mutual
Funds' agent to make offers of the MEMBERS Mutual Funds shares directly to the
public or distribute such shares to the public through securities brokers,
dealers or other intermediaries. The Distributor is authorized to act as the
Ultra Series Fund's agent to make offers of the Ultra Series Fund shares to
insurance company separate accounts and/or qualified retirement plans. The
Distributor is also authorized to act as an agent of the Trusts in connection
with any redemption of the Trusts' shares, either directly or through securities
brokers, dealers or other intermediaries. In the performance of its activities
hereunder, the Distributor shall be authorized to take such action not
inconsistent with the express provisions hereof as it deems advisable.
The Distributor agrees that in offering, selling or redeeming shares of the
Trusts it will duly conform to all applicable State and Federal laws and the
rules and regulations of any self-regulatory organization established pursuant
to Federal law to which the Distributor may belong. The Distributor is
authorized by the Trusts only to give information or make representations
regarding the Trusts' shares to the extent such information or representations
are contained in each Trust's current prospectus or in its currently effective
registration statement filed with the Securities and Exchange Commission
("Registration Statements") or in supplemental information to such prospectus
approved by the Trusts. The Distributor agrees that any other such information
or representations it provides shall be given entirely without liability or
recourse to the Trusts.
3. Duties of the Distributor and the Trusts.
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1) The Trusts employ the Distributor:
a) To promote the Trusts;
b) To make offers of sale of shares of each series of the Trusts on a best
efforts basis from time to time during the term of this Agreement as
agent for the Trusts and upon the terms described in the Registration
Statements;
c) To enter into agreements, at the Distributor's discretion, for the sale
of MEMBERS Mutual Fund shares by registered and qualified broker-dealers
or distributors of mutual funds shares that are exempt from registration
as a broker-dealer, provided that all such entities shall act in
accordance with the Registration Statements and shall comply with all
applicable laws, rules and regulations;
d) To enter into participation agreements, at the Distributor's discretion,
for the sale of Ultra Series Fund shares to insurance company separate
accounts and qualified retirement plans, in accordance with the
Registration Statements and all applicable laws, rules and regulations;
e) In connection with the offers of sale of Trust shares, to give only such
information and make such representations as are permitted by applicable
law, review and approve all mutual fund advertising and sales literature
and ensure that any required filing of sales literature and
advertisements with appropriate authorities used by the Distributor in
connection with the sale of Trust shares shall be accomplished; and
f) To offer Trust shares at the public offering price which shall be the
net asset value per share as next determined by the Trusts, plus
applicable distribution charges, following receipt and acceptance by the
Trust of a proper offer to purchase, as determined in accordance with
each respective Trust's Declaration of Trust and By-Laws, as amended
(collectively, the "Declarations of Trust") and the Registration
Statements. The Trusts shall promptly furnish (or arrange for another
person to furnish) the Distributor with a quotation of the public
offering price on each business day.
2) Each Trust agrees:
a) That it will not, without the Distributor's consent, sell or agree to
sell any Trust shares other than through the Distributor, except that
the Trusts may:
i) Issue or sell their respective shares in connection with a merger
or consolidation with any other investment company (or series
thereof) or the respective Trust's acquisition by purchase or
otherwise of all or substantially all of the assets of any
investment company (or series thereof) or substantially all of the
outstanding shares of any such company (or series thereof);
ii) Issue shares to shareholders for reinvestment of cash distributions
from capital gains or net investment income of the Trusts;
iii) Issue shares to shareholders who exercise any exchange privilege
set forth in the Registration Statements;
iv) Issue shares directly to registered shareholders pursuant to the
authority of the Board of Trustees of the applicable Trust; or
v) Sell shares in any jurisdiction in which the Distributor is not
registered as a broker- dealer.
b) To permit the Distributor to use any list of shareholders of the Trust
or any other list of investors which it obtains in connection with its
provision of services under this Agreement, subject to the Trusts
applicable privacy procedures;
c) To keep the Distributor fully informed of its affairs and to make
available to the Distributor copies of all information, financial
statements and other papers which the Distributor may reasonably request
for use in connection with the distribution of Trust shares;
d) To cooperate fully in the efforts of the Distributor to arrange for the
sale of Trust shares and in the performance of the Distributor under
this Agreement; and
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e) To register or cause to be registered all shares sold by the Trusts as a
result of the Distributor's efforts under this Agreement in such name or
names and amounts as the Distributor may request from time to time.
3) The Trusts reserve the right at any time to withdraw all offerings of any or
all of their shares by written notice to the Distributor at its principal
office.
4) It is understood that the Distributor shall not open shareholder accounts to
hold shares of the Trusts but that it may enter into selling agreements with
other entities qualified or authorized to do so.
5) It is further understood that, to the extent such obligations are not
assumed by other qualified broker-dealers with whom the Distributor has
entered into selling agreements, the Trusts shall, as issuers and through
their duly appointed transfer agents, be responsible for effecting purchases
and redemptions of all Trust shares, maintaining any purchase and sales
books and records (including, if applicable, order tickets), new account
forms and creating, maintaining and delivering shareholder confirmations and
account statements. The Distributor shall not be responsible for providing
such services in its capacity as Distributor of Trust shares.
4. Other Activities of the Distributor and Compliance. The Distributor and any
of its affiliates shall be free to engage in any other lawful activity,
including the rendering to others of services similar to those to be rendered to
the Trusts hereunder; and the Distributor or any interested person thereof shall
be free to invest in the Trusts as a shareholder, to become an officer or
Trustee thereof if properly elected, or to enter into any other relationship
with the Trusts approved by the trustees of the Trusts and in accordance with
law.
1) In carrying out its obligations under this Agreement, the Distributor shall
comply with:
a) All applicable provisions of the Federal securities law and regulation
thereunder and the rules of the Financial Industry Regulatory Authority,
Inc.;
b) The provisions of the Registration Statement of the Trusts as amended
from time to time; and
c) The provisions of the Declarations of Trust.
2) In connection with complying with applicable anti-money laundering
procedures of the Trusts:
a) Upon request by the Trusts' anti-money laundering compliance officer
("AMLCO"), the Distributor will make available information relating to
the identity and business of each broker-dealer or other firm that
engages in the sales of shares of the Trusts. The Distributor shall
immediately notify the Board of Trustees of each applicable Trust if it
receives information that any broker-dealer or other firm is not in
compliance with the USA PATRIOT Act of 0000 (xxx "XXXXXXX Xxx");
b) Selling agreements between the Distributor and other broker-dealer (or
other distributing) firms shall include provisions requiring each
broker-dealer (or other distributing) firm to: (i) comply with the
PATRIOT Act and have an anti-money laundering compliance program; (ii)
confirm a customer's identity and the source of the funds involved in
the purchase of shares of the Trusts to the extent required by the
PATRIOT Act and any laws, rules, requirements, regulations or regulatory
guidance thereunder; and (iii) report to the AMLCO, to the extent
permitted by applicable law, including Section 314(b) of the PATRIOT
Act, any suspicious activity involving the purchase of shares of the
Trust.
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c) Selling agreements between the Distributor and broker-dealer (or other
distributing) firms shall include provisions intended to satisfy the
requirements of Rule 22c-2 of the Investment Company Act of 1940, as
amended (the "1940 Act") or such provisions must be included in a
separate agreement between the Distributor and such broker-dealers (or
other distributing firms).
5. Compensation to the Distributor. As compensation for providing services under
this Agreement, the Distributor shall receive for each Trust fund class for
which a distribution plan pursuant to Section 12(b) of the 1940 Act and Rule
12b-1 promulgated thereunder ("12b-1 Plan") is in effect, a distribution and/or
service fee at the rate and under the terms and conditions of each such 12b-1
Plan, as such 12b-1 Plans are in effect from time to time for any of the Trusts'
shares or share classes, and subject to any further limitations on such fees as
the Board may impose.
Other than payments under applicable 12b-1 Plans, unless a current prospectus
provides for compensation to underwriters or to persons who distribute Trust
shares, the Distributor shall receive no direct compensation in connection with
the activities authorized hereby. Additional payments to the Distributor from
the Trusts' investment adviser, Madison Asset Management, LLC (the "Advisor"),
or the Trusts' administrator may be made in accordance with applicable law.
The parties to this agreement recognize that the Distributor is a wholly owned
subsidiary of Madison Investment Advisors, Inc. and all its costs and expenses
hereunder not otherwise reimbursed by 12b-1 Plan payments will be borne by the
Advisor, a subsidiary of Madison Investment Advisors, Inc., pursuant to a shared
services agreement between the Advisor and the Distributor. The Distributor has
no employees of its own and shares all personnel and resources with the Advisor,
Madison Investment Advisors, Inc. and/or their affiliates.
6. Relationship to Investment Advisor. It is understood by the parties hereto
that concurrently with the execution of Agreement or previously, each Trust has
entered into an Investment Advisory Agreement and a Services Agreement with the
Advisor, pursuant to which the Advisor will provide management services to the
Trusts and administer their affairs. The Distributor has entered into this
Agreement to perform certain services partially in consideration of the Trusts'
ongoing employment of the Advisor as aforesaid. If at any time the Advisor
ceases to act as investment Advisor to the Trusts under terms substantially
those of the Investment Advisory Agreement or if at any time the Advisor ceases
to be an entity at least 50% (in terms of voting rights) under common control
with the Distributor, then this Agreement shall immediately terminate as of a
date 30 days from the date of such event, unless within such 30-day period the
Distributor gives written notice to the Trusts that it waives such termination.
The Trusts specifically acknowledge and accept the relationship between the
Distributor hereunder and the Advisor.
7. Limitation of the Distributor's Liability. The Distributor shall not be
liable for any loss incurred in connection with any of its activities hereunder,
nor for any action taken, suffered or omitted and believed by it to be advisable
or within the scope of its authority or discretion,
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except for acts or omissions involving willful misfeasance, bad faith, gross
negligence or reckless disregard of the responsibilities assumed by it under
this Agreement.
8. Limitation of Trusts' Liability. The Distributor acknowledges that it has
received notice of and accepts the limitations upon the Trusts' liability set
forth in their respective Declarations of Trust. The Distributor agrees that
the Trusts' obligations hereunder in any case shall be limited to the Trusts and
to their assets and that the Distributor shall not seek satisfaction of any such
obligation from the shareholders of the Trusts nor from any Trustee, officer,
employee or agent of the Trusts.
9. Term of Agreement. This Agreement shall continue in effect for two years from
the date of its execution; and it shall continue in force thereafter (but
subject to the termination provisions above and below), provided that it is
specifically approved at least annually by the Trustees of the Trusts or by a
majority vote of the outstanding securities of the Trusts (without regard to
series or classes of shares), and in either case by the vote of a majority of
the Trustees who are not interested persons of the Trusts, cast in person at a
meeting called for that purpose.
10. Termination by Notice. Notwithstanding any provision of this Agreement, it
may be terminated at any time, without penalty, by the Trustees of either Trust
who are not interested persons of the applicable Trust and who have no direct or
indirect financial interest in the operation of any 12b-1 Plans or this
Agreement or by the Distributor, upon 60 days' written notice to the other
party.
11. Termination Upon Assignment. This Agreement may not be assigned by the
Distributor and shall automatically terminate immediately upon any assignment.
Noting herein shall prevent the Distributor from employing any other persons or
agents, as its own expense, to assist it in the performance of its duties
hereunder. However, the Distributor will remain responsible to the Trusts for
any such sub-contracted services.
12. Amendments. This Agreement may be amended at any time by mutual agreement in
writing by the parties hereto, provided that such amendment is approved by (1)
the Trustees of the Trusts (the "Board"), including a majority of the Trustees
who are not interested persons of the Trusts, who are not parties to this
Agreement and who have no direct or indirect financial interest in the operation
of any 12b-1 Plan or this Agreement, cast in person at a meeting called for that
purpose; and (2) by the vote of a majority of the Board; provided, however that
amendments relating to any 12b-1 Plan shall not require the consent of the
Distributor.
13. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Wisconsin.
14. Use of Terms. The terms "interested person," "assignment" and "majority of
the outstanding voting securities," as used herein, shall have the same meanings
as in the 1940 Act and any applicable regulations thereunder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed on their
behalf by their respective officers duly authorized effective the 1st day of
July, 2009.
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Mosaic Funds Distributor, LLC
(signature)
By: W. Xxxxxxx Xxxxx, Principal
MEMBERS Mutual Funds and Ultra Series Fund
(signature)
By: Xxxxxxxxx X. Xxxxx, President
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