Exhibit e.1
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTION AGREEMENT (the "AGREEMENT") is made
and entered into this 28th day of February, 2008, by and between MEMBERS MUTUAL
FUNDS, a statutory trust organized and existing under the laws of the state of
Delaware (the "TRUST"), and CUNA BROKERAGE SERVICES, INC., a corporation
organized and existing under the laws of the State of Wisconsin (the
"DISTRIBUTOR").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 ACT"),
consisting of several investment portfolios (the "FUNDS");
WHEREAS, the Trust is registering its shares of beneficial interest for
offer and sale to the public under the Securities Act of 1933, as amended (the
"1933 ACT"), and in accordance with the provisions of all applicable state
securities laws (the "BLUE SKY LAWS");
WHEREAS, each Fund is authorized to issue multiple classes of shares and
such other classes of shares as may hereafter be approved by the Trust
(collectively, the "SHARES"), each of which represents interests in the same
portfolio of investment securities;
WHEREAS, the Distributor is a broker-dealer registered with the Securities
and Exchange Commission (the "COMMISSION") under the Securities Exchange Act of
1934, as amended (the "1934 ACT"), and is a member of the Financial Industry
Regulatory Authority, Inc. ("FINRA"); and
WHEREAS, the Trust has adopted several distribution plans pursuant to
Section 12(b) of the 1940 Act, and Rule 12b-1 promulgated thereunder (the "12B-1
PLANS"), pursuant to which the Trust may pay the expenses for certain
distribution activities and service activities incurred or paid by the
Distributor.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
I. APPOINTMENT AND OBLIGATIONS OF THE DISTRIBUTOR
The Trust hereby appoints the Distributor as its principle underwriter and
exclusive agent to sell and distribute, as set forth below in Section II,
the Shares of each Fund and of such other Funds as may hereafter be
registered with the Commission and under the Blue Sky Laws, subject to the
terms of this Agreement and the policies and control of the Trust's Board
of Trustees (the "BOARD"). The Distributor hereby accepts such appointment.
II. DUTIES OF THE DISTRIBUTOR AND THE TRUST
A. The Trust employs the Distributor:
1. to promote the Funds;
2. to sell the Shares of each Fund on a best efforts basis from time
to time during the term of this Agreement as agent for the Trust
and upon the terms described in the currently effective
registration statement of the Trust, and supplements thereto,
under the 1933 Act and the 1940 Act (the "REGISTRATION
STATEMENT"). The Distributor shall sell, as agent for the Funds,
the Shares needed, but not more than the Shares needed (except
for clerical errors or errors of transmission), to fill
unconditional orders placed with the Distributor;
3. to enter into agreements, at the Distributor's discretion, to
sell Shares to registered and qualified retail broker-dealers.
All such brokers and dealers shall act in accordance with the
Registration Statement and shall comply with all applicable laws,
rules and regulations;
4. in connection with the sales and offers of sale of Shares, to
give only such information and make such representations as are
permitted by applicable law. All sales literature and
advertisements used by the Distributor in connection with the
sale of the Shares shall be filed with the appropriate
authorities, including FINRA, the states, and/or the Commission,
as may be required from time to time.
5. to offer the Shares of each Fund at the public offering price
which shall be the net asset value per Share as next determined
by the Trust, plus applicable distribution charges, following
receipt and acceptance by the Trust of a proper offer to
purchase, determined in accordance with the Trust's Declaration
of Trust, as amended (the "DECLARATION OF TRUST"), and the
Registration Statement of the Funds. The Trust shall promptly
furnish (or arrange for another person to furnish) the
Distributor with a quotation of the public offering price on each
business day; and
B. The Distributor shall not be obligated to sell any certain number of
Shares.
C. The Trust agrees:
1. that it will not, without the Distributor's consent, sell or
agree to sell any Shares of the Trust other than through the
Distributor, except that the Trust may:
a. issue or sell Shares in connection with its merger or
consolidation with any other investment company or the
Trust's acquisition by purchase or otherwise of all or
substantially all of the assets of any
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investment company or substantially all of the outstanding
shares of any such company;
b. issue Shares to its shareholders for reinvestment of cash
distribution from capital gains or net investment income of
the Trust;
c. issue Shares to shareholders of a Fund who exercise any
exchange privilege set forth in the Registration Statement;
d. issue Shares directly to registered shareholders pursuant to
the authority of the Board; or
e. sell Shares in any jurisdiction in which the Distributor is
not registered as a broker-dealer.
2. to permit the Distributor to use any list of shareholders of the
Trust or a Fund or any other list of investors which it obtains
in connection with its provision of services under this
Agreement;
3. 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 Shares,
including, without limitation, certified copies of any financial
statements for the Trust by its independent public accountant and
such reasonable number of copies of the most current prospectus,
statement of additional information, and annual and interim
reports of a Fund as the Distributor may request;
3. to cooperate fully in the efforts of the Distributor to sell and
arrange for the sale of the Shares and in the performance of the
Distributor under this Agreement; and
4. to register or cause to be registered all Shares sold by the
Distributor pursuant to the provisions of this Agreement in such
name or names and amounts as the Distributor may request from
time to time.
D. The Trust reserves the right at any time to withdraw all offerings of
the Shares of any or all Funds by written notice to the Distributor at
its principal office.
III. REPRESENTATIONS AND WARRANTIES
A. REPRESENTATIONS AND WARRANTIES OF THE DISTRIBUTOR. The Distributor
hereby represents and warrants to the Trust as follows:
1. ORGANIZATION. The Distributor is duly organized and is in good
standing under the laws of the State of Wisconsin and is fully
authorized to enter into this Agreement and carry out its terms.
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2. REGISTRATION. The Distributor is a broker-dealer registered with
the Commission under the 1934 Act, is a member of FINRA, and is
registered or licensed under the laws of all jurisdictions in
which its activities require it to be so registered or licensed.
The Distributor shall maintain such registration or license in
effect at all times during the term of this Agreement and will
immediately notify the Trust of the occurrence of any event that
would disqualify the Distributor from serving as a Distributor by
operation of Section 9(a) of the 1940 Act or otherwise.
3. BEST EFFORTS. The Distributor at all times shall provide its best
judgment and effort to the Trust in carrying out its obligations
hereunder.
4. CODE OF ETHICS. The Distributor has adopted a written code of
ethics that complies with the requirements of Rule 17j-1 under
the 1940 Act and will provide the Trust with a copy of such code
of ethics and all subsequent modifications, together with
evidence of its adoption. At least annually, the Distributor will
provide the Trust with a report describing the implementation of
the code of ethics during the immediately preceding twelve-month
period.
B. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust, on behalf of
the Funds, hereby represents and warrants to the Distributor as
follows:
1. ORGANIZATION. The Trust is duly organized under the laws of the
State of Delaware and is fully authorized to enter into this
Agreement and carry out its terms.
2. REGISTRATION. The Trust is registered as an investment company
with the Commission under the 1940 Act and Shares of the Trust
will be registered for offer and sale to the public under the
1933 Act and under the Blue Sky Laws. Such registrations shall be
kept in effect during the term of this Agreement.
IV. COMPLIANCE WITH APPLICABLE REQUIREMENTS
A. In carrying out its obligations under this Agreement, the Distributor
shall at all times conform to:
1. all applicable provisions of the 1934 Act and the 1940 Act and
the rules and regulations thereunder and the rules of FINRA;
2. the provisions of the Registration Statement of the Trust as the
same may be amended from time to time, under the 1933 Act and the
1940 Act;
3. the provisions of the Declaration of Trust; and
4. any other applicable provisions of state and federal law.
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B. In carrying out its obligations under this Agreement, the Distributor
agrees that:
1. The Distributor agrees to comply with the requirements of Section
326 of the USA PATRIOT Act of 2001 (the "PATRIOT ACT") on behalf
of the Trust using the Distributor's customer identification
program for the customers of the Distributor for which it sells
shares of the Trust.
2. The Distributor shall provide to the Trust a copy of its
anti-money laundering compliance program, and maintain and
enforce such program that includes policies, procedures and
controls reasonably designed to ensure the Distributor's
compliance with its responsibilities under all applicable laws,
rules, requirements and regulations. The Distributor shall
perform periodic audits to verify compliance with its anti-money
laundering compliance program. Further, the Distributor will
conduct anti-money laundering compliance training programs.
3. The Distributor agrees that it will abide by the applicable
anti-money laundering procedures of the Trust.
4. The Distributor will provide an annual certification to the Board
that the Distributor is operating in compliance with its
anti-money laundering program, including its customer
identification program, and the Trust's program, and all
applicable laws, rules, requirements and regulations.
5. Upon request by the Trust's anti-money laundering compliance
officer (the "AMLCO"), the Distributor will make available
information relating to the identity and business of each
broker-dealer firm that engages in the sales of shares of the
Trust's mutual funds. The Distributor shall immediately notify
the Board if it receives information that any broker-dealer firm
is not in compliance with the PATRIOT Act.
6. In accordance with applicable laws, rules or regulations, the
Distributor hereby consents to permit examiners from the
Commission to obtain information and records from the Distributor
related to the Trust's anti-money laundering compliance program,
and to inspect the Distributor for the purpose of examining the
Trust's compliance with the PATRIOT Act, the Bank Secrecy Act
("BSA") and applicable laws, rules, requirements and regulations.
7. Selling agreements between the Distributor and broker-dealer
firms shall include provisions requiring each broker-dealer 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 mutual funds 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
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314(b) of the PATRIOT Act, any suspicious activity involving the
purchase of shares of the Trust.
8. Selling agreements between the Distributor and broker-dealer
firms, as provided in Rule 22c-2 of the 1940 Act, shall include:
(i) a shareholder information sharing agreement to provide the
Fund the taxpayer identification number, if known, of any or all
shareholder(s) of the account and the amount, date, name or other
identifier of any investment professional(s) associated with the
shareholder(s) or account (if known), and transaction type
(purchase, redemption, transfer, or exchange) of every purchase,
redemption, transfer, or exchange of Shares held through an
account maintained by the intermediary; (ii) an agreement to
assess redemption fees on shareholder transactions in accordance
with the terms and conditions of the then-current prospectus of
the fund(s); and (iii) an agreement to restrict trading or
further purchases or exchanges of Shares or take such other
action as requested by the Fund for a shareholder that has been
identified by the Fund as having engaged in transactions of the
Fund's Shares.
9. The Distributor has adopted and shall implement written policies
and procedures reasonably designed to prevent violations of the
"federal securities laws," as such term is defined in Rule 38a-1
under the 1940 Act.
V. COMPENSATION
As compensation for providing services under this Agreement, the
Distributor shall receive from each class for which a 12b-1 Plan is in
effect, of each Fund, a distribution and/or service fee at the rate and
under the terms and conditions of the 12b-1 Plans, as such 12b-1 Plans are
in effect from time to time, and subject to any further limitations on such
fee as the Board may impose.
Additional payments to the Distributor from the Trust's investment adviser,
MEMBERS Capital Advisors, Inc., or the Trust's administrator may be
authorized in accordance with applicable law.
VI. EXPENSES
The expenses in connection with the distribution of the Funds shall be
allocable as follows:
A. EXPENSES OF THE DISTRIBUTOR. The Distributor shall bear or pay:
1. the costs of printing and distributing prospectuses and
statements of additional information for prospective investors
and the costs of preparing, printing and distributing such other
sales literature, reports, forms and advertisements in connection
with the sale of the Shares as comply with the applicable
provisions of federal and state law;
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2. the costs of any additional copies of the Trust's financial and
other reports and not other literature supplied to the
Distributor for sales promotion purposes;
3. all advertising expenses incurred by the Distributor in
connection with the offering and sales of the Shares;
4. all compensation to the employees of the Distributor and others
for selling shares, and all expenses of the Distributor and
others who engage in or support the sale of shares as may be
incurred in connection with their sales efforts;
5. expenses relating to the formulation and implementation of
marketing strategies and promotional activities such as direct
mail promotions and television, radio, newspaper, magazine and
other mass media advertising; and
6. the costs of building and maintaining a database of prospective
shareholders and of obtaining such analyses, reports and other
information with respect to marketing and promotional activities
and investor accounts as the Trust may deem advisable.
B. EXPENSES OF THE TRUST
Each Fund, or class thereof, shall bear all expenses in connection
with preparing and typesetting the Trust's prospectuses, statements of
additional information, reports to shareholders, and other materials,
related to communications of such class or Fund with existing
shareholders.
VII. REPORTS
The Distributor shall prepare reports for the Board on a quarterly basis
showing such information concerning services provided and expenses incurred
related to this Agreement, and such other information, as from time to time
may be reasonably requested by the Board.
VIII. INDEMNIFICATION BY THE TRUST
The Trust agrees to indemnify, defend and hold the Distributor, each person
who has been, is, or may hereafter be an officer, director, employee or
agent of the Distributor, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, free and harmless against
any loss, damage or expense reasonably incurred by any of them in
connection with any claim or in connection with any action, suit, or
proceeding to which any of them may be a party, which arises out of or is
alleged to arise out of or is based upon a violation of any of its
covenants herein contained, or any alleged untrue statement of a material
fact, or the alleged omission to state a material fact necessary to make
the statements made not misleading, in the Registration Statement or
prospectus of the Trust, or any amendment or supplement thereto, unless
such statement or omission
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was made in reliance upon written information furnished by the Distributor.
The foregoing rights of indemnification shall be in addition to any other
rights to which any of the foregoing indemnified parties may be entitled as
a matter of law. Nothing contained herein shall relieve the Distributor of
any liability to the Trust or its shareholders to which the Distributor
would otherwise be subject by reason of willful misfeasance, bad faith, or
gross negligence in the performance of its duties or reckless disregard of
its obligations and duties under this Agreement.
IX. INDEMNIFICATION BY THE DISTRIBUTOR
The Distributor agrees to indemnify, defend and hold the Trust, each person
who has been, is, or may hereafter be an officer, director, employee or
agent of the Trust, and any person who controls the Trust within the
meaning of Section 15 of the 1933 Act, free and harmless against any loss,
damage or expense reasonably incurred by any of them in connection with any
claim or in connection with any action, suit, or proceeding to which any of
them may be a party, which arises out of or is alleged to arise out of or
is based upon a violation of any of its covenants herein contained, or any
alleged untrue statement of a material fact, or the alleged omission to
state a material fact necessary to make the statements made not misleading,
on the part of the Distributor or any agent or employee of the Distributor
or any other person for whose acts the Distributor is responsible or is
alleged to be responsible (such as any selected dealer or person through
whom sales are made pursuant to an agreement with the Distributor), whether
made orally or in writing, unless such statement or omission was made in
reliance upon written information furnished by the Trust. The foregoing
rights of indemnification shall be in addition to any other rights to which
any of the foregoing indemnified parties may be entitled as a matter of
law.
X. REPURCHASE OF SHARES
The Trust appoints and designates the Distributor as agent of the Trust,
and the Distributor accepts such appointment as such agent, to repurchase
shares of the Trust in accordance with the provisions of the Declaration of
Trust.
In connection with such redemptions or repurchases, the Trust authorizes
and designates the Distributor to take any action, to make any adjustments
in net asset value, and to make any arrangements for the payment of the
redemption or repurchase price authorized or permitted to be taken or made
in accordance with the 1940 Act and as set forth in the current prospectus
of the Trust.
The authority of the Distributor under this section may, with the consent
of the Trust, be re-delegated in whole or in part to another person or
firm.
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The authority granted in this section may be suspended by the Trust at any
time, or from time to time, until further notice to the Distributor. After
any such suspension the authority granted to the Distributor by this
section will be reinstated only by a written instrument executed by an
officer of the Trust.
XI. DISTRIBUTOR IS INDEPENDENT CONTRACTOR
The Distributor is an independent contractor and shall be the agent for the
Trust only with respect to the sale and redemption of Shares. The
Distributor is responsible for its own conduct, for the employment, control
and conduct of its agent and employees and for injury to such agents or
employees or to others through its agents or employees. The Distributor
assumes full responsibility for its agents and employees under applicable
laws and agrees to pay all employer taxes relating thereto.
XII. NON-EXCLUSIVITY
The services of the Distributor to the Trust under this Agreement are not
to be deemed exclusive, and the Distributor shall be free to render similar
services to others (including other investment companies) so long as its
services to the Trust are not impaired thereby. It is understood and agreed
that officers and directors of the Distributor may serve as officers or
directors of the Trust, and that officers or directors of the Trust may
serve as officers or directors of the Distributor to the extent permitted
by law. The officers and directors of the Distributor are not prohibited
from engaging in any other business activity or from rendering services to
any other person, or from serving as partners, officers, directors or
trustees of any other firm, fund or trust, including other investment
companies.
XIII. TERM
This Agreement shall become effective as of the later of: (i) the date on
which a Registration Statement becomes effective under the 1933 Act; and
(ii) the date on which this Agreement is executed, provided this Agreement
is approved by the vote of a majority of the Board and by the vote of a
majority of those members of the Board who are not parties to this
Agreement or interested persons of any such party, and who have no direct
or indirect interest in the operation of any 12b-1 Plan or this Agreement,
cast in person at a meeting called for the purpose of voting on such
renewal.
Unless terminated as herein provided, this Agreement shall remain in full
force and effect for one year from the date of execution of this Agreement
and shall continue in effect from year to year thereafter, only so long as
such continuance is approved at least annually:
1. by the vote of a majority of those trustees of the Trust who are not
parties to this Agreement or interested persons of any such party, and
who have no direct or indirect interest in the operation of any 12b-1
Plan or this Agreement, cast in person at a meeting called for the
purpose of voting on such renewal; and
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2. by either the Board or the vote of a majority of the outstanding
voting securities of the Trust.
XIV. TERMINATION
This Agreement may be terminated as to any class of any Fund at any time,
without the payment of any penalty, by the vote of a majority of the
trustees of the Trust who are not interested persons of the Trust and who
have no direct or indirect financial interest in the operation of any 12b-1
Plan or this Agreement, or by the vote of a majority of the outstanding
votes attributable to that class of shares of the Fund, on sixty (60) days'
written notice to the Distributor, or by the Distributor at any time
without the payment of any penalty, on sixty (60) days written notice to
the Trust.
XV. ASSIGNMENT
This Distribution Agreement may not be assigned by the Distributor and will
automatically and immediately terminate in the event of its assignment.
XVI. AMENDMENTS
This Agreement may be amended at any time or from time to time by an
instrument in writing, signed by a duly authorized officer of the Trust and
by the Distributor, but no amendment to this Agreement shall be effective
until such amendment is approved:
1. by the vote of a majority of those trustees of the Trust who are not
parties to this Agreement or interested persons of any such party 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 the purpose of voting on such approval; 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.
XVII. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Delaware,
without regard to conflicts of law principles; provided, however, that
nothing herein shall be construed as being inconsistent with the 1940 Act.
XVIII. DEFINITIONS
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 the
shares of a Fund means the lesser of (a) 67% or more of the votes
attributable to such Fund present at a meeting if the holders of more than
50% of such votes are present or represented by proxy or (b) more than 50%
of the votes attributable to shares of the Fund.
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XIX. NOTICE
Any notice, advice or report to be given pursuant to this Agreement shall
be deemed sufficient if delivered by hand, transmitted by electronic
facsimile, or mailed by registered, certified or overnight United States
mail, postage prepaid, or sent by overnight delivery with a recognized
courier, addressed by the party giving notice to the other party at the
last address furnished by the other party:
To the Distributor at: CUNA Brokerage Services, Inc.
0000 Xxxxxxxx Xxx
Xxxxxxx, Xxxx 00000
To the Trust at: President, MEMBERS Mutual Funds
c/o MEMBERS Capital Advisors, Inc.
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Each such notice, advice or report shall be effective upon receipt or three
days after mailing, whichever is first.
XX. SEVERABILITY
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.
XXI. ENTIRE AGREEMENT
This Agreement embodies the entire agreement and understanding between the
parties hereto, and supersedes all prior agreements and understandings
relating to this Agreement's subject matter. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an
original, but such counterparts shall, together, constitute only one
instrument.
XXII. 1940 ACT
Where the effect of a requirement of the 1940 Act reflected in any
provision of this Agreement is altered by a rule, regulation or order of
the Commission, whether of special or general application, such provision
shall be deemed to incorporate the effect of such rule, regulation or
order.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first written
above.
CUNA BROKERAGE SERVICES, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
----------------------------- ---------------------------
Xxxx X. Xxxxxx, President
MEMBERS MUTUAL FUNDS
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------------- ---------------------------
Xxxxx X. Xxxxx, President
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