AMENDMENT NO. 5 TO
AMENDED AND RESTATED PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin/Xxxxxxxxx Distributors, Inc.
CUNA Mutual Insurance Society
CUNA Brokerage Services, Inc.
Franklin Xxxxxxxxx Variable Insurance Products Trust (the "Trust"), Franklin/
Xxxxxxxxx Distributors, Inc. (the "Underwriter," and together with the Trust,
"we" or "us"), CUNA Mutual Insurance Society (the "Company" or "you"), and CUNA
Brokerage Services, Inc., your distributor, on your behalf and on behalf of
certain Accounts, have previously entered into a Participation Agreement dated
May 1, 2004, and subsequently amended as of May 3, 2004, June 5, 2007, December
31, 2007 and November 5, 2008 (the "Agreement"). The parties now desire to amend
the Agreement by this amendment (the "Amendment"). Unless otherwise indicated,
the terms defined in the Agreement shall have the same meaning in this
Amendment.
A M E N D M E N T
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. Section 6 is amended and restated in its entirety as set forth in Attachment
A to this Amendment.
2. Schedules C and G of the Agreement are deleted and replaced in their entirety
with the Schedules C and G attached hereto, respectively.
3. All other terms and provisions of the Agreement not amended herein shall
remain in full force and effect.
IN WITNESS WHEREOF, each of the parties has caused its duly authorized
officers to execute this Amendment as of December 10, 2010.
The Trust: FRANKLIN XXXXXXXXX VARIABLE INSURANCE
Only on behalf of PRODUCTS TRUST
each Portfolio listed
on Schedule C of
the Agreement.
By: /s/Xxxxx X. Xxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
The Underwriter: FRANKLIN/XXXXXXXXX DISTRIBUTORS, INC.
By: /s/Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
The Company: CUNA MUTUAL INSURANCE SOCIETY
By: /s/Xxxxx X. Xxxx
----------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
The Distributor: CUNA BROKERAGE SERVICES, INC.
By: /s/Xxxxx X. Xxxx
----------------------
Name: Xxxxx X. Xxxx
Title: President
2
ATTACHMENT A
------------
6. SALES MATERIAL, INFORMATION AND TRADEMARKS
------------------------------------------
6.1 For purposes of this Section 6, "Sales Literature/Promotional Material"
includes, but is not limited to, portions of the following that use any logo or
other trademark related to the Trust, or Underwriter or its affiliates, or refer
to the Trust: 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, web-sites
and other electronic communications or other public media), sales literature
(i.e., any written communication distributed or made generally available to
customers or the public, including brochures, circulars, research reports,
market letters, form letters, seminar texts, reprints or excerpts or any other
advertisement, sales literature or published article or electronic
communication), educational or training materials or other communications
distributed or made generally available to some or all agents or employees in
any media, and disclosure documents, shareholder reports and proxy materials.
6.2 You may use the name of the Trust and trademarks and the logo of the
Underwriter in Sales Literature/Promotional Material as reasonably necessary to
carry out your performance and obligations under this Agreement provided that
you comply with the provisions of this Agreement. You agree to abide by any
reasonable use guidelines regarding use of such trademarks and logos that we may
give from time to time. You shall, as we may request from time to time, promptly
furnish, or cause to be furnished to us or our designee, at least one complete
copy of each registration statement, prospectus, statement of additional
information, private placement memorandum, retirement plan disclosure
information or other disclosure documents or similar information, as applicable
(collectively "Disclosure Documents"), as well as any report, solicitation for
voting instructions, Sales Literature/Promotional Material created and approved
by you, and all amendments to any of the above that relate to the Contracts, the
Accounts, the Trust, or Underwriter or its affiliates.
6.3 You and your agents shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust,
the Underwriter or an Adviser, other than information or representations
contained in and accurately derived from the registration statement or
prospectus for the Trust shares (as such registration statement and prospectus
may be amended or supplemented from time to time), annual and semi-annual
reports of the Trust, Trust-sponsored proxy statements, or in Sales
Literature/Promotional Material created by us for the Trust and provided by the
Trust or its designee to you, except as required by legal process or regulatory
authorities or with the written permission of the Trust or its designee.
6.4 You agree, represent and warrant that you are solely responsible for any
Sales Literature/Promotional Material prepared by you and that such material
will: (a) conform to all requirements of any applicable laws or regulations of
any government or authorized agency having jurisdiction over the offering or
sale of shares of the Portfolios or Contracts; (b) be solely based upon and not
contrary to or inconsistent with the information or materials
3
provided to you by us or a Portfolio; and (c) be made available promptly to us
upon our request. You agree to file any Sales Literature/Promotional Material
prepared by you with FINRA, or other applicable legal or regulatory authority,
within the timeframes that may be required from time to time by FINRA or such
other legal or regulatory authority. Unless otherwise expressly agreed to in
writing, it is understood that we will neither review nor approve for use any
materials prepared by you and will not be materially involved in the preparation
of, or have any responsibility for, any such materials prepared by you. You are
not authorized to modify or translate any materials we have provided to you.
6.5 You shall promptly notify us of notice of any regulatory investigation
or proceeding or, upon request, any written customer complaint received by you
relating to any Disclosure Documents or Sales Literature/Promotional Material.
6.6 We shall not give any information or make any representations or
statements on behalf of you or concerning you, the Accounts or the Contracts
other than information or representations, including naming you as a Trust
shareholder, contained in and accurately derived from Disclosure Documents for
the Contracts (as such Disclosure Documents may be amended or supplemented from
time to time), or in materials approved by you for distribution, including Sales
Literature/Promotional Material, except as required by legal process or
regulatory authorities or with your written permission.
6.7 Except as provided in Section 6.2, you shall not use any designation
comprised in whole or part of the names or marks "Franklin" or "Xxxxxxxxx" or
any logo or other trademark relating to the Trust or the Underwriter without
prior written consent, and upon termination of this Agreement for any reason,
you shall cease all use of any such name or xxxx as soon as reasonably
practicable.
6.8 You shall furnish to us ten (10) Business Days prior to its first
submission to the SEC or its staff, any request or filing for no-action
assurance or exemptive relief naming, pertaining to, or affecting, the Trust,
the Underwriter or any of the Portfolios.
6.9 You agree that any posting of Designated Portfolio Documents on your
website or use of Designated Portfolio Documents in any other electronic format
will result in the Designated Portfolio Documents: (i) appearing identical to
the hard copy printed version or .pdf format file provided to you by us (except
that you may reformat .pdf format prospectus files in order to delete blank
pages and to insert .pdf format prospectus supplement files provided by us to
you); (ii) being clearly associated with the particular Contracts in which they
are available and posted in close proximity to the applicable Contract
prospectuses; (iii) having no less prominence than prospectuses of any other
underlying funds available under the Contracts; (iv) in compliance with any
statutory prospectus delivery requirements and (v) being used in an authorized
manner. Notwithstanding the above, you understand and agree that you are
responsible for ensuring that participation in the Portfolios, and any website
posting, or other use, of the Designated Portfolio Documents is in compliance
with this Agreement and applicable state and federal securities and insurance
laws and regulations, including as they relate to paper or electronic delivery
or use of fund prospectuses. We reserve the right to inspect and review your
website if any Designated Portfolio Documents
4
and/or other Trust documents are posted on your website and you shall, upon our
reasonable request, provide us timely access to your website materials to
perform such inspection and review.
In addition, you agree to be solely responsible for maintaining and updating
the Designated Portfolio Documents' .pdf files and removing and/or replacing
promptly any outdated prospectuses and other documents, as necessary, ensuring
that any accompanying instructions by us, for using or stopping use, are
followed. You agree to designate and make available to us a person to act as a
single point of communication contact for these purposes. We are not responsible
for any additional costs or additional liabilities that may be incurred as a
result of your election to place the Designated Portfolio Documents on your
website. We reserve the right to revoke this authorization, at any time and for
any reason, although we may instead make our authorization subject to new
procedures.
6.10 Each of your and your distributor's registered representatives, agents,
independent contractors and employees, as applicable, will have access to our
websites at xxxxxxxxxxxxxxxxx.xxx, and such other URLs through which we may
permit you to conduct business concerning the Portfolios from time to time
(referred to collectively as the "Site") as provided herein: (i) upon
registration by such individual on a Site; (ii) if you cause a Site Access
Request Form (an "Access Form") to be signed by your authorized supervisory
personnel and submitted to us, as a Schedule to, and legally a part of, this
Agreement; or (iii) if you provide such individual with the necessary access
codes or other information necessary to access the Site through any generic or
firm-wide authorization we may grant you from time to time. Upon receipt by us
of a completed registration submitted by an individual through the Site or a
signed Access Form referencing such individual, we shall be entitled to rely
upon the representations contained therein as if you had made them directly
hereunder and we will issue a user identification, express number and/or
password (collectively, "Access Code"). Any person to whom we issue an Access
Code or to whom you provide the necessary Access Codes or other information
necessary to access the Site through any generic or firm-wide authorization we
may grant you from time to time shall be an "Authorized User."
We shall be entitled to assume that such person validly represents you and
that all instructions received from such person are authorized, in which case
such person will have access to the Site, including all services and information
to which you are authorized to access on the Site. All inquiries and actions
initiated by you (including your Authorized Users) are your responsibility, are
at your risk and are subject to our review and approval (which could cause a
delay in processing). You agree that we do not have a duty to question
information or instructions you (including Authorized Users) give to us under
this Agreement, and that we are entitled to treat as authorized, and act upon,
any such instructions and information you submit to us. You agree to take all
reasonable measures to prevent any individual other than an Authorized User from
obtaining access to the Site. You agree to inform us if you wish to restrict or
revoke the access of any individual Access Code. If you become aware of any
loss or theft or unauthorized use of any Access Code, you agree to contact us
immediately. You also agree to monitor your (including Authorized Users') use of
the Site to ensure the terms of this Agreement are followed. You also agree that
you will comply with all policies and agreements concerning Site usage,
including without limitation the Terms of Use
5
Agreement(s) posted on the Site ("Site Terms"), as may be revised and reposted
on the Site from time to time, and those Site Terms (as in effect from time to
time) are a part of this Agreement. Your duties under this section are
considered "services" required under the terms of this Agreement. You
acknowledge that the Site is transmitted over the Internet on a reasonable
efforts basis and we do not warrant or guarantee their accuracy, timeliness,
completeness, reliability or non-infringement. Moreover, you acknowledge that
the Site is provided for informational purposes only, and is not intended to
comply with any requirements established by any regulatory or governmental
agency.
6
SCHEDULE C
AVAILABLE PORTFOLIOS AND CLASSES OF SHARES OF THE TRUST
Class 1 Shares of:
------------------
1. Franklin High Income Securities Fund
2. Franklin Income Securities Fund
3. Franklin Small Cap Value Securities Fund,
4. Mutual Shares Securities Fund
5. Xxxxxxxxx Developing Markets Securities Fund
6. Xxxxxxxxx Foreign Securities Fund
7. Xxxxxxxxx Global Bond Securities Fund
Class 2 Shares of:
------------------
8. Franklin High Income Securities Fund
9. Franklin Income Securities Fund
10. Franklin Small Cap Value Securities Fund
11. Mutual Global Discovery Securities Fund
12. Mutual Shares Securities Fund
13. Xxxxxxxxx Developing Markets Securities Fund
14. Xxxxxxxxx Global Bond Securities Fund
Class 4 Shares of:
------------------
15. Franklin High Income Securities Fund
16. Franklin Income Securities Fund
17. Mutual Global Discovery Securities Fund
18. Xxxxxxxxx Developing Markets Securities Fund
In addition to portfolios and classes of shares listed above, any additional
Portfolios and classes of shares are included in this Schedule C listing
provided that:
(1) the Legal Department of the Trust receives from a person authorized by
you a written notice in the form attached (which may be electronic mail
or sent by electronic mail) ("Notice") identifying this Agreement as
provided in the Notice and specifying: (i) the names and classes of
shares of additional Portfolios that you propose to offer as investment
options of the Separate Accounts under the Contracts; and (ii) the date
that you propose to begin offering Separate Account interests investing
in the additional Portfolios under the Contracts; and
(2) we do not within ten (10) Business Days following receipt of the Notice
send you a writing (which may be electronic mail) objecting to your
offering such Separate Accounts investing in the additional Portfolios
and classes of shares under the Contracts.
7
Provided that we do not object as provided above, your Notice shall amend,
supplement and become a part of this Schedule C and the Agreement.
8
FORM OF NOTICE PURSUANT TO SCHEDULE C OF PARTICIPATION AGREEMENT
To: Xxxxx Xxx (Xxxx@xxx.xxx;) or Xxxxx Xxxxxxxx (xxxxxxx@xxx.xxx)
Fax: 000 000-0000
Franklin Xxxxxxxxx Investments
0 Xxxxxxxx Xxxxxxx,
Xxxx. 000, 0xx Xxxxx
Xxx Xxxxx, XX 00000
With respect to the following agreement(s) (collectively, the "Agreement")
(please reproduce and complete table for multiple agreements):
DATE OF PARTICIPATION AGREEMENT:
--------------------------------------------------------------------------------
INSURANCE COMPANY(IES):
--------------------------------------------------------------------------------
INSURANCE COMPANY DISTRIBUTOR(S):
--------------------------------------------------------------------------------
As provided by Schedule C of the Agreement, this Notice proposes to Franklin
Xxxxxxxxx Variable Insurance Products Trust, and Franklin/Xxxxxxxxx
Distributors, Inc. the addition as of the offering date(s) listed below of the
following Portfolios as additional investment options listed on Schedule C:
NAMES AND CLASSES OF SHARES OF ADDITIONAL PORTFOLIOS OFFERING DATE(S)
Listing of current classes for your reference:
Class 1 (no 12b-1 fee);
Class 2 (12b-1 fee of 25 bps);
Class 3 (redemption fee and 12b-l fee of 25 bps) or
Class 4 (12b-1 fee of 35 bps).
--------------------------------------------------------------------------------
NAME AND TITLE OF AUTHORIZED PERSON OF INSURANCE COMPANY: CONTACT INFORMATION:
9
SCHEDULE G
ADDRESSES FOR NOTICES
To the Company: CUNA Mutual Insurance Society
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxx XX 00000
Attention: Office of General Counsel
To the Distributor: CUNA Brokerage Services, Inc.
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxx XX 00000
Attention: Chief Compliance Officer
To the Trust: Franklin Xxxxxxxxx Variable Insurance Products Trust
Xxx Xxxxxxxx Xxxxxxx, Xxxx. 000 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Vice President
To the Underwriter: Franklin/Xxxxxxxxx Distributors, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxx. 000 0xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx, President
If to the Trust or
Underwriter with
a copy to: Franklin Xxxxxxxxx Xxxxxxxxxxx
Xxx Xxxxxxxx Xxxxxxx, Xxxx. 000 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
10
