DISTRIBUTION AGREEMENT
THIS AGREEMENT, dated as of January 18, 2008, is entered into by and
between RYDEX DYNAMIC FUNDS (the "Trust"), a Delaware business trust and RYDEX
DISTRIBUTORS, INC. (the "Distributor"), a Maryland corporation.
WHEREAS, the Trust is registered as an investment company with the
Securities and Exchange Commission (the "SEC") under the Investment Company Act
of 1940, as amended (the "1940 Act"), and its shares are registered with the SEC
under the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Trust and Distributor hereby agree as follows:
ARTICLE 1. SALE OF SHARES. The Trust grants to the Distributor the
exclusive right to sell units (the "Shares") of the portfolios (the
"Portfolios") of the Trust, in such classes as may be offered from time to time,
at the net asset value per Share, plus any applicable sales charges in
accordance with the current prospectus, as agent and on behalf of the Trust,
during the term of this Agreement and subject to the registration requirements
of the 1933 Act, the rules and regulations of the SEC and the laws governing the
sale of securities in the various states ("Blue Sky Laws").
ARTICLE 2. SOLICITATION OF SALES. In consideration of these rights granted
to the Distributor, the Distributor agrees to use all reasonable efforts in
connection with the distribution of Shares of the Trust; provided, however, that
the Distributor shall not be prevented from entering into like arrangements with
other issuers. The provisions of this paragraph do not obligate the Distributor
to register as a broker or dealer under the Blue Sky Laws of any jurisdiction
when it determines it would be uneconomical for it to do so or to maintain its
registration in any jurisdiction in which it is now registered or obligate the
Distributor to sell any particular number of Shares.
ARTICLE 3. AUTHORIZED REPRESENTATIONS. The Distributor is not authorized by
the Trust to give any information or to make any representations other than
those contained in the current registration statements and prospectuses of the
Trust filed with the SEC or contained in shareholder reports or other material
that may be prepared by or on behalf of the Trust for the Distributor's use. The
Distributor may prepare and distribute sales literature and other material, as
it may deem appropriate, provided that such literature and materials have been
prepared in accordance with applicable rules and regulations.
ARTICLE 4. AML SERVICES. The Trust hereby delegates to the Distributor, and
the Distributor accepts delegation of, the performance, on behalf of the Trust,
of those anti-money laundering services (the "AML Services") set forth in
Schedule A concerning shareholder accounts that are maintained pursuant to
omnibus account relationships between the Distributor
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and Sub-Distributors pursuant to certain Dealer Agreements that the Distributor
may elect to enter into from time to time. The Distributor agrees to the
foregoing delegation and agrees that it will perform the delegated AML Services
in accordance with the Trust's AML Program. In connection therewith, the
Distributor agrees to maintain policies and procedures, and related internal
controls, that are consistent with the Trust's AML Program and the requirement
that the Trust employ procedures reasonably designed to achieve compliance with
applicable anti-money laundering laws, regulations and rules, including the
requirement to have policies and procedures that can be reasonably expected to
detect and cause the reporting of transactions under the Bank Secrecy Act, as
amended by the USA PATRIOT Act of 2001. The Distributor also agrees to keep and
maintain on behalf of the Trust all books and records which the Trust and the
Distributor is, or may be, required to keep and maintain pursuant to any
applicable laws, regulations, and rules, including without limitation Rules
31a-1 and 31a-2 under the 1940 Act, relating to the maintenance of books and
records in connection with the AML services to be provided hereunder. The
Distributor further agrees that all such books and records shall be the property
of the Trust and to make such books and records available for inspection by the
Trust or by the Trust's regulators, including the SEC, at reasonable times and
otherwise to keep confidential all books and records and other information
relative to the Trust and its shareholders consistent with the requirements of
Regulation S-P.
ARTICLE 5. AUTHORITY TO ENGAGE SUB-DISTRIBUTORS AND OTHER SERVICERS. In
providing the services and assuming the obligations set forth herein, the
Distributor may, contract with one or more Sub-Distributors or third party
service providers ("Servicers") as the Distributor deems appropriate in
connection with the performance of the Distributor's duties and obligations
hereunder. Reference herein to the duties and responsibilities of the
Distributor shall include the duties and responsibilities of any Sub-Distributor
or Servicer contracted with by the Distributor to the extent that the
Distributor shall delegate such duties and responsibilities to such
Sub-Distributor or Servicer.
ARTICLE 6. REGISTRATION OF SHARES. The Trust agrees that it will take all
action necessary to register Shares under the federal and state securities laws
so that there will be available for sale the number of Shares the Distributor
may reasonably be expected to sell and to pay all fees associated with said
registration. The Trust shall make available to the Distributor such number of
copies of its currently effective prospectus and statement of additional
information as the Distributor may reasonably request. The Trust shall furnish
to the Distributor copies of all information, financial statements and other
papers that the Distributor may reasonably request for use in connection with
the distribution of Shares of the Trust.
ARTICLE 7. COMPENSATION. As compensation for providing the services under
this Agreement:
(a) The Distributor shall receive from the Trust:
(1) distribution and service fees, if any, at the rate and under the
terms and conditions set forth in each distribution and/or shareholder
services plan applicable to the appropriate class of shares of each
Portfolio, as such plans may be amended from time to time, and subject
to any further limitations on such fees as the Board of Trustees of
the Trust may impose;
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(2) front-end sales charges, if any, on purchases of Shares of each
Portfolio sold subject to such charges as described in the Trust's
Registration Statement and current prospectuses, as amended from time
to time. The Distributor, or brokers, dealers and other financial
institutions and intermediaries that have entered into
sub-distribution agreements with the Distributor, may collect the
gross proceeds derived from the sale of such Shares, remit the net
asset value thereof to the Trust upon receipt of the proceeds and
retain the applicable sales charge; and
(3) contingent deferred sales charges ("CDSCs"), if any, applied on
redemptions of Shares subject to such charges on the terms and subject
to such waivers as are described in the Trust's Registration Statement
and current prospectuses, as amended from time to time, or as
otherwise required pursuant to applicable law.
(b) The Distributor may reallow any or all of the distribution or service
fees, front-end sales charges and contingent deferred sales charges which
it is paid by the Trust to such brokers, dealers and other financial
institutions and intermediaries as the Distributor may from time to time
determine.
ARTICLE 8. INDEMNIFICATION OF DISTRIBUTOR. The Trust agrees to indemnify
and hold harmless the Distributor and each of its directors and officers and
each person, if any, who controls the Distributor within the meaning of Section
15 of the 1933 Act against any loss, liability, claim, damages or expense
(including the reasonable cost of investigating or defending any alleged loss,
liability, claim, damages, or expense and reasonable counsel fees and
disbursements incurred in connection therewith), arising by reason of any person
acquiring any Shares, based upon the ground that the registration statement,
prospectus, shareholder reports or other information filed or made public by the
Trust (as from time to time amended) included an untrue statement of a material
fact or omitted to state a material fact required to be stated or necessary in
order to make the statements made not misleading. However, the Trust does not
agree to indemnify the Distributor or hold it harmless to the extent that the
statements or omission was made in reliance upon, and in conformity with,
information furnished to the Trust by or on behalf of the Distributor.
In no case (i) is the indemnity of the Trust to be deemed to protect the
Distributor against any liability to the Trust or its Shareholders to which the
Distributor or such person otherwise would be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Trust to be liable to the Distributor under the
indemnity agreement contained in this paragraph with respect to any claim made
against the Distributor or any person indemnified unless the Distributor or
other person shall have notified the Trust in writing of the claim within a
reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the
Distributor or such other person (or after the Distributor or the person shall
have received notice of service on any designated agent). However, failure to
notify the Trust of any claim shall not relieve the Trust from any liability
which it may have to the Distributor or any person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph.
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The Trust shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the Trust elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the Trust and satisfactory to the indemnified defendants in the suit
whose approval shall not be unreasonably withheld. In the event that the Trust
elects to assume the defense of any suit and retain counsel, the indemnified
defendants shall bear the fees and expenses of any additional counsel retained
by them. If the Trust does not elect to assume the defense of a suit, it will
reimburse the indemnified defendants for the reasonable fees and expenses of any
counsel retained by the indemnified defendants.
The Trust agrees to notify the Distributor promptly of the commencement of
any litigation or proceedings against it or any of its officers or Trustees in
connection with the issuance or sale of any of its Shares.
ARTICLE 9. INDEMNIFICATION OF TRUST. The Distributor covenants and agrees
that it will indemnify and hold harmless the Trust and each of its Trustees and
officers and each person, if any, who controls the Trust within the meaning of
Section 15 of the 1933 Act, against any loss, liability, damages, claim or
expense (including the reasonable cost of investigating or defending any alleged
loss, liability, damages, claim or expense and reasonable counsel fees incurred
in connection therewith) based upon the 1933 Act or any other statute or common
law and arising by reason of any person acquiring any Shares, and alleging a
wrongful act of the Distributor or any of its employees or alleging that the
registration statement, prospectus, Shareholder reports or other information
filed or made public by the Trust (as from time to time amended) included an
untrue statement of a material fact or omitted to state a material fact required
to be stated or necessary in order to make the statements not misleading,
insofar as the statement or omission was made in reliance upon and in conformity
with information furnished to the Trust by or on behalf of the Distributor.
In no case (i) is the indemnity of the Distributor in favor of the Trust or
any other person indemnified to be deemed to protect the Trust or any other
person against any liability to which the Trust or such other person would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Trust or any person
indemnified unless the Trust or person, as the case may be, shall have notified
the Distributor in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon the Trust or upon any person (or after the
Trust or such person shall have received notice of service on any designated
agent). However, failure to notify the Distributor of any claim shall not
relieve the Distributor from any liability which it may have to the Trust or any
person against whom the action is brought otherwise than on account of its
indemnity agreement contained in this paragraph.
The Distributor shall be entitled to participate, at its own expense, in
the defense or, if it so elects, to assume the defense of any suit brought to
enforce the claim, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by the Distributor and
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satisfactory to the indemnified defendants whose approval shall not be
unreasonably withheld. In the event that the Distributor elects to assume the
defense of any suit and retain counsel, the defendants in the suit shall bear
the fees and expenses of any additional counsel retained by them. If the
Distributor does not elect to assume the defense of any suit, it will reimburse
the indemnified defendants in the suit for the reasonable fees and expenses of
any counsel retained by them.
The Distributor agrees to notify the Trust promptly of the commencement of
any litigation or proceedings against it or any of its officers in connection
with the issue and sale of any of the Trusts' Shares.
ARTICLE 10. CONSEQUENTIAL DAMAGES. In no event and under no circumstances
shall either party to this Agreement be liable to anyone, including, without
limitation, the other party, for consequential damages for any act or failure to
act under any provision of this Agreement.
ARTICLE 11. EFFECTIVE DATE. This Agreement shall be effective upon its
execution, and, unless terminated as provided, shall continue in force for one
year from the effective date and thereafter from year to year, provided that
such annual continuance is approved by (i) either the vote of a majority of the
Trustees of the Trust, or the vote of a majority of the outstanding voting
securities of the Trust, and (ii) the vote of a majority of those Trustees of
the Trust who are not parties to this Agreement or the Trust's distribution plan
or interested persons of any such party ("Qualified Trustees"), cast in person
at a meeting called for the purpose of voting on the approval. This Agreement
shall automatically terminate in the event of its assignment. As used in this
paragraph the terms "vote of a majority of the outstanding voting securities,"
"assignment" and "interested person" shall have the respective meanings
specified in the 1940 Act. In addition, this Agreement may at any time be
terminated without penalty by the Distributor, by a vote of a majority of
Qualified Trustees or by vote of a majority of the outstanding voting securities
of the Trust upon not less than sixty days prior written notice to the other
party.
ARTICLE 12. NOTICES. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient if sent by registered or certified
mail, postage prepaid, addressed by the party giving notice to the other party
at the last address furnished by the other party to the party giving notice: if
to the Trust, 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, and if to the
Distributor, 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000.
ARTICLE 13. LIMITATION OF LIABILITY. A copy of the Certificate of Trust of
the Trust is on file with the Secretary of State of the State of Delaware, and
notice is hereby given that this Agreement is executed on behalf of the Trustees
of the Trust as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or shareholders of
the Trust individually but binding only upon the assets and property of the
Trust.
ARTICLE 14. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the
entire agreement between the parties hereto and supersedes any prior agreement,
draft or agreement or proposal with respect to the subject matter hereof. This
Agreement or any part hereof may be changed or waived only by an instrument in
writing signed by the party against which enforcement of such change or waiver
is sought.
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ARTICLE 15. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Delaware and the applicable provisions of the 1940
Act. To the extent that the applicable laws of the State of Delaware, or any of
the provisions herein, conflict with the applicable provisions of the 1940 Act,
the latter shall control.
ARTICLE 16. MULTIPLE ORIGINALS. This Agreement may be executed in two or
more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
ARTICLE 17. SEVERABILITY. If any part, term or provision of this Agreement
is held to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be affected,
and the rights and obligations of the parties shall be construed and enforced as
if the Agreement did not contain the particular part, term or provision held to
be illegal or invalid.
IN WITNESS WHEREOF, the Trust and Distributor have each duly executed this
Agreement, as of the day and year above written.
RYDEX DYNAMIC FUNDS RYDEX DISTRIBUTORS, INC.
By: /s/ Xxxx X. Xxxxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxxxx
----------------------- -----------------------
Name: XXXX X. XXXXXXXXXXX Name: XXXX X. XXXXXXXXXXX
------------------- -------------------
Title: PRESIDENT Title: PRESIDENT
--------- ---------
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SCHEDULE A
AML SERVICES
1. Establish and implement an AML Program, including a Customer Identification
Program ("CIP"), that is consistent with applicable anti-money laundering
laws, regulations and rules ("Applicable AML Laws") and the Trust's AML
Program.
2. Analyze the anti-money laundering risks posed by particular omnibus
accounts based upon a risk-based evaluation of relevant factors regarding
the entity holding the omnibus account (e.g., a retailing broker-dealer),
including such factors as (i) the type of entity, (ii) its location, (iii)
type of regulation that it is subject to, and the (iv) viability of its AML
Program.
3. Respond promptly to requests from Financial Crimes Enforcement Network
("FinCEN"), a department of the U.S. Treasury, about accounts or
transactions by reporting to FinCEN the identity of the specified
individual or organization, the account number, all identifying information
provided by the account holder when the account was established, and the
date and type of transaction, after providing notice to the Trust to the
extent reasonably practical and allowed by Applicable AML Laws.
4. Share information with the Trust, and other financial institutions as
requested by the Trust, regarding those suspected of terrorism and money
laundering for the purposes of identifying and reporting activities that
may involve terrorist acts or money laundering activities in compliance
with Applicable AML Laws.
5. File with FinCEN an initial notice before sharing any information with any
other financial institutions, including affiliates, and file annual notices
afterwards using forms made available at XXX.XXXXXX.XXX and take reasonable
steps to verify that the other financial institution has submitted the
requisite notice to FinCEN, either by obtaining confirmation from the
financial institution or by consulting a list of such financial
institutions that FinCEN will make available.
6. Identify and verify the identity of all shareholders upon the opening of
new accounts in compliance with Applicable AML Laws.
7. Perform additional due diligence to verify the identity of shareholders
with accounts that may pose a greater risk of terrorism or money laundering
activity, such as foreign accounts, domestic or foreign corporate or
business entity accounts, domestic or foreign trust accounts, offshore
accounts, intermediary accounts, account in high risk and non-cooperative
jurisdictions, and senior foreign government or public official accounts in
compliance with Applicable AML Laws.
8. Check shareholders against Treasury's Office of Foreign Assets Control
("OFAC") list of "Specifically Designated Nationals and Blocked Persons
List" and similar lists of terrorists received from governmental agencies,
and place holds on transactions in shareholder accounts or freeze assets in
shareholder accounts, as required by Applicable AML Laws.
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9. Provide notices to shareholders, prior to the opening of an account or
trading authority is granted, that the Trust will request information, from
either the shareholder or a third party, to verify the identity of the
shareholder in compliance with Applicable AML Laws.
10. Monitor, identify and report shareholder transactions and identify and
report suspicious activities that are required to be so identified and
reported, and provide other required reports to the SEC, the U.S. Treasury
Department, the Internal Revenue Service or each agent's designated agent,
in each case consistent with the Trust's AML Program.
11. Maintain the confidentiality of any reports provided to the SEC, the U.S.
Treasury Department, the Internal Revenue Service or each agency's
designated agent in compliance with Applicable AML Laws.
12. Create documentation to provide a basis for law enforcement authorities to
trace illicit funds.
13. Maintain all records or other documentation related to shareholder accounts
and transactions therein that are required to be prepared and maintained
pursuant to the Trust's AML Program, and make the same available for
inspection by (i) the Trust's AML Compliance Officer, the Board, or the
independent auditor of the Board, (ii) any auditor of the Trust's AML
Program or related procedures, policies or controls that has been
designated by the Trust in writing, or (iii) regulatory or law enforcement
authorities, and otherwise make said records or other documents available
at the reasonable direction of the Trust's AML Compliance Officer.
14. Arrange for periodic reviews of the AML Services of the Distributor at
least annually, which reviews are performed by qualified outside parties
knowledgeable about Applicable AML Laws, but not involved in the day-to-day
operation of the AML Services.
15. Develop and implement an ongoing employee training program providing
training, at least annually, with regard to how to identify red flags and
signs of terrorism or money laundering activities, what to do if such a red
flag is identified, AML record retention policies, and the consequences of
not complying with the Applicable AML Laws.
16. Perform such other related services as are required by the Trust's AML
Program as it relates to shareholder accounts that are maintained pursuant
to omnibus account relationships between the Distributor and
Sub-Distributors pursuant to certain Dealer Agreements that the Distributor
may elect to enter into from time to time.
17. Provide a copy of the Distributor's AML Program, and promptly provide any
subsequent amendments thereto, and an annual written certification to the
Trust that the Distributor has implemented an AML Program that is
consistent with the AML Program of the Trust and will perform the specified
requirements of the CIP.
