FUND AGREEMENT
This
Agreement dated as of the 10th day of
September,
2001 is made by and among NATIONWIDE FINANCIAL SERVICES, INC., a Delaware
corporation, for itself and on behalf of its subsidiaries and affiliates
listed
on Exhibit A (individually or collectively, “NFS”), RYDEX VARIABLE TRUST, a
Delaware business trust (the “Trust”), and RYDEX DISTRIBUTORS, INC., a Maryland
corporation (the “Distributor”).
WHEREAS,
NFS provides administrative and/or recordkeeping services with respect to
variable annuity contracts and variable life insurance policies (“Contracts”)
and to retirement plans qualified under Sections 401, 403 and 457 of the
Internal Revenue Code (the “Code”) (“Plans”); and
WHEREAS,
NFS issues Contracts funded through separate accounts listed on Exhibit A
(“Variable Accounts”); and
WHEREAS,
the Contracts allow for the allocation of net amounts received by NFS to
sub-accounts of Variable Accounts which correspond to portfolios of the Trust
listed in Exhibit B (the “Variable Funds”) and for which the Distributor serves
as distributor; and
WHEREAS,
the Plans allow for the allocation of net amounts received by NFS to
sub-accounts which correspond to funds of investment companies listed in
Exhibit
B and for which the Distributor serves as distributor (the “Other Rydex Funds”)
(Other Rydex Funds and Variable Funds, are referred to herein collectively
as
the “Funds”); and
WHEREAS,
Contract owners and Plan participants may reallocate their Contract and Plan
values among the sub-accounts in accordance with the terms of the Contracts
and
Plans, respectively; and
WHEREAS,
NFS, the Trust and the Distributor mutually desire the inclusion of the Variable
Funds as investment options for the Contracts; and
WHEREAS,
NFS, and the Distributor mutually desire the inclusion of the Other Rydex
Funds
as investment options for the Plans;
NOW
THEREFORE, in consideration of the promises and undertakings described herein,
the parties agree that shares of the Funds will be available in the products
and
services provided by NFS, as follows:
REPRESENTATIONS
AND UNDERTAKINGS
Representations
by NFS
NFS
represents that the Variable Accounts, have been established and are in good
standing under the state laws in which they were organized. The
Variable Accounts are registered under the Investment Company Act of 1940,
as
amended (the “1940 Act”), unless otherwise exempt therefrom.
NFS
and
its agents shall make no representations concerning the Funds or Fund shares
except those contained in the Funds’ current prospectuses, statements of
additional information or other documents produced by the Distributor or
its
affiliates. NFS agrees to allow a reasonable period of time for the
Distributor to review any advertising and sales literature drafted by NFS
(or
agents on its behalf) with respect to the Funds prior to use and prior to
submitting such material to any regulator.
NFS
acknowledges that the identity of the Funds’ and/or the Distributor’s (and its
affiliates and/or subsidiaries) customers and all information maintained
about
those customers constitute the valuable property of the Funds and the
Distributor. NFS agrees that, should it come into contact or
possession of any such information (including, but not limited to, lists
or
compilations of the identity of such customers), NFS shall hold such information
or property in confidence and shall not use, disclose or distribute any such
information or property except with the Funds’ and/or the Distributor’s, as
applicable, prior written consent or as required by law or judicial
process. This paragraph shall survive the expiration or termination
of this Agreement.
NFS
acknowledges that the services provided for under this Agreement by the Trust
and the Distributor are not exclusive and that the same skill will be used
in
performing services to other companies in similar contexts. NFS
represents that it will use its best efforts to give equal emphasis and
promotion to shares of the Funds as is given to other investment options
that
may be available in Contracts and Plans.
NFS
represents that the Contracts are currently treated as annuity contracts
or life
insurance policies under the appropriate provisions of the Code, and that
it
shall make every effort to maintain such treatment. NFS will promptly
notify the Distributor upon having a reasonable basis for believing that
the
Contracts have ceased to be treated as annuity contracts or life insurance
policies, or that the Contracts may not be so treated in the
future.
For
Contracts issued through the Variable Accounts, NFS represents that each
Variable Account is a “segregated asset account” and that interests in each
Variable Account are offered exclusively through the purchase of a “variable
contract”, which meets the diversification requirements of Section 1.817-5(f) of
the Federal Tax Regulations, and that it shall make every effort to continue
to
meet such requirements. NFS shall promptly notify the Distributor
upon having a reasonable basis for believing that such requirements have
ceased
to be met or that they may not be met in the future.
Representations
by the Distributor and the Trust
The
Distributor and the Trust and its agents shall make no representations about
NFS
except those contained in publicly available documents or other documents
produced by NFS (or an entity on its behalf). The Distributor and the
Trust agree to allow a reasonable period of time for NFS to review any
advertising and sales literature drafted with respect to NFS prior to use
and
prior to submitting such material to any regulator.
The
Distributor and the Trust acknowledge that the identity of NFS customers
and
that all information maintained about those customers constitute the valuable
property of NFS. The Distributor and the Trust agree that, should
either come into contact or possession of any such information (including,
but
not limited to, lists or compilations of the identity of such customers),
the
Distributor and the Trust shall hold such information or property in confidence
and shall not use, disclose or distribute any such information or property
except with NFS’ prior written consent or as required by law or judicial
process. This paragraph shall survive the expiration or termination
of this Agreement.
The
Distributor and the Trust acknowledge that the services provided for under
this
Agreement by NFS are not exclusive and that the same skill will be used in
performing services to other companies in similar contexts. The
Distributor and the Trust represent that they will use their best efforts
to
give equal emphasis and promotion to NFS as is given to companies in similar
contexts.
The
Distributor represents that the Funds are currently qualified as regulated
investment companies under Subchapter M of the Code, and that the Funds shall
make every effort to maintain such qualification. The Distributor shall promptly
notify NFS upon having a reasonable basis for believing that the Funds
have
ceased
to
so qualify, or that they may not qualify as such in the future.
The
Distributor and the Trust represent that the Variable Funds utilized in the
Contracts currently comply with the diversification requirements pursuant
to
Section 817(h) of the Code and Section 1.817-5(b) of the Federal Tax
Regulations, if required, and that the Trust will make every effort to maintain
the Variable Funds’ compliance with such diversification requirements, unless
the Variable Funds are otherwise exempt from Section 817(h) and/or except
as
otherwise disclosed in the Trust’s prospectus. The Distributor or the Trust will
notify NFS promptly upon having a reasonable basis for believing that the
Variable Funds have ceased to so qualify, or that the Variable Funds might
not
so qualify in the future.
CUSTOMER
PRIVACY
The
Distributor and the Trust acknowledge that each has read, and will conform
to,
Nationwide's Privacy policy which is explained in Nationwide's Privacy
Statement, herein attached as Exhibit F, which may be updated from time to
time. Failure to conform to Nationwide's Privacy Statement is a
breach of this Agreement.
The
Distributor and the Trust agree to comply with all laws, rules, regulations,
and
ordinances relating to privacy, confidentiality, security, data security,
and
the handling of customer information which may from time to time be
established.
The
Distributor and the Trust agree not to disclose or use any consumer nonpublic
personal information (including nonpublic personal financial information
and
nonpublic personal health information), which may be supplied by NFS to the
Distributor or the Trust in performance under this Agreement other than
to:
a) carry
out the purpose for which the information was provided; and
b) to
use or disclose the information as otherwise permitted or required by
law.
NFS
agrees to comply with all laws, rules, regulations, and ordinances relating
to
privacy, confidentiality, security, data security, and the handling of customer
information which may from time to time be established.
NFS
agrees not to disclose or use any consumer nonpublic personal information
(including nonpublic personal financial information and nonpublic personal
health information), which may be supplied by the Distributor or the Trust
to
NFS in performance under this Agreement other than to:
a) carry
out the purpose for which the information was provided; and
b) to
use or disclose the information as otherwise permitted or required by
law.
The
Customer Privacy provisions of this
Agreement extend to any other Agreements between NFS (including any NFS
affiliate or subsidiary), the Trust and the Distributor (including any affiliate
or subsidiary of the Trust or the Distributor). This provision will
survive and continue in full force and effect after the termination of this
Agreement.
TRADING
Subject
to the terms and conditions of this Agreement, NFS shall be appointed to,
and
agrees to act, as a limited agent of the Distributor for the sole purpose
of
receiving orders from authorized parties for the
purchase
and redemption of Fund shares prior to the close of regular trading each
Business Day. A “Business Day” shall mean any day on which the New
York Stock Exchange is open for trading and on which the Funds calculate
net
asset value as set forth in the Fund’s most recent prospectus(es) and
statement(s) of additional information. NFS shall provide the
Distributor with good faith estimates of all purchase and redemption orders
not
later than the applicable Fund closing time on the same Business Day that
such
order is received by NFS. Except as particularly stated in this
paragraph, NFS shall have no authority to act on behalf of the Funds or the
Distributor or to incur any cost or liability on their behalf.
NFS
and
the Distributor acknowledge that the boards of trustees of the Funds may
suspend
or terminate the offering of shares of any Fund if such action is required
by
law or by regulatory authorities having jurisdiction or is in the best interests
of shareholders, as determined in the sole discretion of the board acting
in
good faith and in light of its fiduciary duties under federal and any applicable
state laws. Issuance and transfer of Fund shares will be by book
entry only. Stock certificates will not be issued to
NFS. Shares will be recorded in an appropriate title in the
appropriate account designated by NFS.
The
Distributor and NFS will transmit information via the NSCC’s DCC&S Fund/SERV
System:
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a)
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Orders
derived from, and in amounts equal to, instructions received by
NFS prior
to the Close of Trading on Day 1 shall be transmitted without modification
(except for netting and aggregation of such orders) via the NSCC’s
DCC&S Fund/SERV system to the Distributor or its designee no later
than 5:00 A.M. Eastern Time on the Next Business Day. Such
trades will be effected at the net asset value of each Fund’s shares
calculated as of the Close of Trading on Day
1.
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b)
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The
Distributor and NFS shall mutually agree there may be instances
when
orders shall be transmitted to the Distributor or its designee
via
facsimile no later than 9:00 A.M. rather than through the DCC&S
Fund/SERV system. In such instances, such orders shall be
transmitted to the Distributor or its designee via facsimile no
later than
9:00 A.M. Eastern Time on the next Business
Day.
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c)
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With
respect to purchase and redemption orders received by the Distributor
or
its designee on any Business Day for any Fund, within the time
limits set
forth in this Agreement, settlement shall occur consistent with
the
requirements of DCC&S Fund/SERV
system.
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The
Distributor or its designee shall send to NFS, via the DCC&S Fund/SERV
system, verification of net purchase or redemption orders or notification
of the
rejection of such orders (“Confirmations “) on each Business Day for which NFS
has transmitted such orders. Such confirmations shall include the
total number of shares of each Fund held by NFS following such net purchase
or
redemption. The Distributor or its designee shall submit in a timely manner,
such confirmations to the DCC&S Fund/SERV system in order for NFS to receive
such confirmations no later than 11:00 A.M. Eastern Time the next Business
Day.
The Distributor or its designee will transmit to NFS via DCC&S NETWORKING
system those Networking activity files reflecting account
activity. In addition, within five (5) business days after the end of
each month, the Distributor or its designee will send NFS a statement of
account
which shall confirm all transactions made during that particular month in
the
account.
DOCUMENTS
AND OTHER MATERIALS
Documents
Provided by NFS
NFS
agrees to provide the Distributor or its designee, upon written request,
any
reports indicating the number of shareholders that hold interests in the
Funds
and such other information (including books and records) that the Distributor
may reasonably request or as may be necessary or advisable to enable it
to
comply
with any law, regulation or order.
Documents
Provided by the Distributor and/or the Trust
Within
10
Business Days after the end of each calendar month, the Distributor and/or
the
Trust, or their designee, shall provide NFS, or its designee, a monthly
statement of account, which shall confirm all transactions made during that
particular month.
The
Distributor shall promptly provide NFS, or cause NFS to be provided with,
a
reasonable quantity of the Funds’ prospectuses, statements of additional
information and any supplements thereto at Distributor’s expense.
NOTICE
Each
notice required by this Agreement shall be given in writing to:
To
NFS:
Nationwide
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx,
Xxxx 00000
Attention: Securities
Officer
Fax
Number: 000-000-0000
To
Distributor:
Rydex
Distributors, Inc.
0000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxx X. Xxxxxxxxxxx, Vice President
Fax
Number: 000-000-0000
To
the
Trust:
Rydex
Variable Trust
0000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxx X. Xxxxxxxxxxx, Vice President
Fax
Number: 000-000-0000
Any
party
may change its address by notifying the other party(ies) in
writing.
VOTING
For
Variable Accounts that are registered under the 1940 Act and so long as and
to
the extent that the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for Contracts, NFS shall distribute all proxy
material furnished by the Trust (provided that such material is received
by NFS
or its designated agent at least 10 Business Days prior to the date scheduled
for mailing to contract owners) and shall vote Variable Fund shares in
accordance with instructions received from the Contract owners who have
interests in such Variable Fund shares. NFS shall vote the Variable
Fund shares for which no instructions have been received in the same proportion
as Variable Fund shares for which said instructions have been received from
the
Contract owners, provided that such proportional voting is not prohibited
by a
Contract owner’s plan or trust document, if applicable, and as and to the extent
required under applicable law. NFS and its agents will in no way
recommend an action in connection with or
oppose
or
interfere with the solicitation of proxies in the Variable Fund
shares.
EXPENSES
All
expenses incident to the performance by NFS under this Agreement shall be
paid
by NFS. Likewise, all expenses incident to the performance by the
Distributor and the Trust under this Agreement shall be paid by the Distributor
or the Trust, as appropriate.
NFS
shall
not bear any of the expenses for the cost of registration of the Funds’ shares,
preparation of the Funds’ prospectuses, proxy materials, and reports and the
preparation of other related statements and notices required by law except
as
otherwise mutually agreed upon by the parties to the Agreement.
Should
the Distributor no longer wish to make a Variable Fund available in a Contract,
the Distributor shall be responsible for reasonable expenses incurred as
a
result of removing such Variable Fund as an available investment
option.
Should
NFS desire to no longer have a Variable Fund available in a Contract, NFS
shall
be responsible for reasonable expenses incurred as a result of removing such
Variable Fund as an available investment option.
Should
a
removal of a Variable Fund as an available investment option be mutually
desired
by the parties, the parties agree to equally share the reasonable expenses
incurred as a result of removing such Variable Fund as an available investment
option.
NFS,
the
Distributor and the Trust agree to provide reasonable advance notice of the
election to remove a Fund as an available investment option in order to permit
the parties to file documentation as may be required under applicable
law.
CONFLICTS
Conflicts
Between the Parties
Each
party agrees to inform the other of the existence of, or any potential for,
any
material conflicts of interest between the parties and any possible implications
of the same.
It
is
agreed that if it is determined by a majority of the members of the Boards
of
Directors of the Funds, or a majority of the Funds’ disinterested Directors,
that a material conflict exists caused by NFS, NFS shall at its own expense,
take whatever steps are necessary to remedy or eliminate such material
conflict.
It
is
agreed that if it is determined by NFS that a material conflict exists caused
by
the Distributor or the Trust, the Distributor or the Trust shall at its own
expense, take whatever steps are necessary to remedy or eliminate such material
conflict.
Conflicts
between Interests of Contract Owners Investing in the Funds
The
board
of trustees of the Trust (the “Board”) will monitor the Trust for the existence
of any “material irreconcilable conflict” between the interests of Contract
owners participating in Variable Accounts that invest in the Variable
Funds. A “material irreconcilable conflict” may arise for a variety
of reasons, including:
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a)
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an
action by any state insurance regulatory
authority;
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b)
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a
change in applicable federal or state insurance, tax, or securities
laws
or regulations, or a public ruling, private letter ruling, no-action
or
interpretative letter, or any similar action by insurance, tax,
or
securities regulatory authorities;
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c)
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an
administrative or judicial decision in any relevant
proceeding;
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d)
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the
manner in which the investments of any Variable Fund are being
managed;
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e)
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a
difference in voting instructions given by Contract owners;
or
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f)
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a
decision by a participating insurance company to disregard the
voting
instructions of Contract owners.
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NFS
will
report any potential or existing conflicts of which it is aware to the
Distributor. NFS will assist the Board in carrying out its
responsibilities under the mixed and shared funding exemptive order granted
to
the Trust by the SEC, by providing the Board with all information reasonably
necessary for the Board to consider any issues raised. This includes,
but is not limited to, an obligation by NFS to inform the Board whenever
Contract owner voting instructions are disregarded.
If
it is
determined by a majority of the Board, or a majority of its disinterested
members, that a material irreconcilable conflict exists, NFS shall, at its
expense and to the extent reasonably practicable (as determined by a majority
of
the disinterested directors), take whatever steps are necessary to remedy
or
eliminate the irreconcilable material conflict, up to and
including:
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(1)
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withdrawing
the assets from any Variable Fund and reinvesting such assets in
a
different investment medium (including but not limited to another
Variable
Fund), or submitting the question whether such segregation should
be
implemented to a vote of all affected contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity
contract
owners, life insurance policy owners, or variable contract owners
of one
or more participating insurance companies) that votes in favor
of such
segregation, or offering to the affected contract owners the option
of
making such a change;
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(2)
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withdrawing
the assets allocable to serve or all of the retirement plans from
the
affected Variable Fund(s) and reinvesting the assets in a different
investment medium (including but not limited to another Variable
Fund);
or
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(3)
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establishing
a new registered investment
company.
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Provided,
however, that upon notification to NFS that action is required as a result
of a
material irreconcilable conflict, NFS shall be permitted such reasonable
time as
is necessary to perform its obligations under this provision, including,
but not
limited to, preparation, filing and approval of any required documents with
the
Securities and Exchange Commission.
If
a
material irreconcilable conflict arises because of a decision by NFS to
disregard contract owners voting instructions and that decision represents
a
minority position or would preclude a majority vote, NFS may be required,
at the
Trust’s election, to withdraw the affected account’s investment in the Trust and
terminate this Agreement with respect to such account (at NFS’s expense);
provided, however that such withdrawal and termination shall be limited to
the
extent required by the foregoing material irreconcilable conflict as determined
by a majority of the disinterested members of the Board.
If
a
material irreconcilable conflict arises because a particular state insurance
regulator’s decision applicable to NFS conflicts with the position of the
majority of other state regulators, then NFS will withdraw the affected
account’s investment in the Variable Funds and terminate this Agreement
with
respect
to such account within six months after the Board informs NFS in writing
that it
has determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the disinterested members of the
Board. Until the end of the foregoing six month period, the
Distributor and Variable Funds shall continue to accept and implement orders
by
NFS for the purchase (and redemption) of shares of the Variable
Funds.
For
purposes of this Section of the Agreement, a majority of the disinterested
members of the Board shall determine whether any proposed action adequately
remedies any irreconcilable material conflict, but in no event will the Trust
be
required to establish a new funding medium for the Contracts. NFS
shall not be required to establish a new funding medium for the Contracts
if an
offer to do so has been declined by vote of a majority of contract owners
materially adversely affected by the irreconcilable material
conflict.
If
and to
the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted,
to provide exemptive relief from any provision of the 1940 Act or the rules
promulgated thereunder with respect to mixed or shared funding (as defined
in
the mixed and shared funding exemptive order) on terms and conditions materially
different from those contained in the order, then (a) the Trust and/or the
participating insurance companies, as appropriate, shall take such steps
as may
be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule
6e-3,
as adopted, to the extent such rules are applicable.
INDEMNIFICATION
Each
party shall promptly notify the other party(ies) in writing of any situation
which presents or appears to involve a claim which may be the subject of
indemnification under this Agreement and the indemnifying party shall have
the
option to defend against any such claim. In the event the
indemnifying party so elects, it shall notify the indemnified party and shall
assume the defense of such claim, and the indemnified party shall cooperate
fully with the indemnifying party, at the indemnifying party’s expense, in
defense of such claim. Notwithstanding the foregoing, the indemnified
party shall be entitled to participate in the defense of such claim at its
own
expense through counsel of its own choosing. Neither party shall
admit to wrong-doing nor make any compromise in any action or proceeding
which
may result in a finding of wrongdoing by the other party without the other
party’s prior written consent. Any notice given by the indemnifying
party to an indemnified party or participation in or control of the litigation
of any such claim by the indemnifying party shall in no event be deemed an
admission by the indemnifying party of culpability, and the indemnifying
party
shall be free to contest liability among the parties with respect to the
claim.
Indemnification
by NFS
NFS
agrees to reimburse and/or indemnify and hold harmless the Trust and the
Distributor and each of their directors, officers, employees, agents and
each
person, if any, who controls the Trust and the Distributor within the meaning
of
the Securities Act of 1933 (the “1933 Act”) (collectively, “Affiliated Party”)
against any losses, claims, damages or liabilities (“Losses”) to which the Trust
and the Distributor or any such Affiliated Party may become subject under
the
1933 Act or otherwise, insofar as such losses (or actions in respect thereof)
arise out of or are based upon, but not limited to:
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(1)
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Any
untrue statement of any material fact contained in information
furnished
by NFS, including, but not limited to, the registration statements,
prospectuses, informational brochures or sales
literature;
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(2)
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The
omission or alleged omission to state in the registration statements,
prospectuses,
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(3)
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informational
brochures or other similar material, a material fact required to
be stated
therein or necessary to make the statements therein not
misleading;
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(4)
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Conduct,
statements or representations of NFS or its agents, with respect
to the
sale and distribution of Contracts for which Variable Fund shares
are an
investment option;
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(5)
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The
failure of NFS to provide the services and furnish the materials
under the
terms of this Agreement;
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(6)
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A
material breach of this Agreement or of any of the representations
contained herein; or
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(7)
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Any
failure to register Contracts or Variable Accounts that do not
meet any
exemptions under federal or state securities laws, state insurance
laws or
failure to otherwise comply with applicable laws, rules, regulations
or
orders.
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Provided
however, that NFS shall not be liable in any such case to the extent that
such
statement, omission or representation or such alleged statement, alleged
omission or alleged representation was made in reliance upon and in conformity
with written information furnished to NFS by or on behalf of the Trust, the
Distributor or the Funds specifically for use therein.
NFS
shall
reimburse any legal or other expenses reasonably incurred by the Trust and/or
the Distributor or any Affiliated Party in connection with investigating
or
defending any such Losses, provided however, that NFS shall have prior approval
of the use of said counsel or the expenditure of said fees.
This
indemnification shall be in addition to any liability that NFS may otherwise
have.
Indemnification
by the Distributor and the Trust
The
Distributor and the Trust agree to reimburse and/or indemnify and hold harmless
NFS and each of its directors, officers, employees, agents and each person,
if
any, who controls NFS within the meaning of the Securities Act of 1933 (the
“1933 Act”) (collectively, “Affiliated Party”) against any losses, claims,
damages or liabilities (“Losses”) to which NFS or any such Affiliated Party may
become subject under the 1933 Act or otherwise, insofar as such Losses (or
actions in respect thereof) arise out of or are based upon, but not limited
to:
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(1)
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Any
untrue statement or alleged untrue statement of any material fact
contained in information furnished by the Distributor or the Trust,
including but not limited to, the registration statements, prospectuses,
or sales literature of the Funds;
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(2)
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The
omission or alleged omission to state in the registration statements,
prospectuses, informational brochures or other similar
material, a material fact required to be stated therein or necessary
to
make the statements therein not
misleading;
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(3)
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The
Funds’ failure to be qualified as regulated investment companies as
required by the 1940 Act and applicable regulations thereunder,
and if
applicable, fully diversified as is required by the Code and applicable
regulations thereunder;
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(4)
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The
failure of the Trust or the Distributor to provide the services
and
furnish the materials under the terms of this
Agreement;
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(5)
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A
material breach of this Agreement or of any of the representations
contained herein; or
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(6)
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Any
failure to register the Funds under federal or state securities
laws or to
otherwise comply with applicable laws, rules, regulations or
orders.
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Provided
however, that the Trust or Distributor shall not be liable in any such case
to
the extent that such statement, omission or representation or such alleged
statement, alleged omission or alleged representation was made in reliance
upon
and in conformity with written information furnished by or on behalf of NFS
specifically for use therein.
The
Trust
or the Distributor shall reimburse any legal or other expenses reasonably
incurred by NFS or any Affiliated Party in connection with investigating
or
defending against any such Losses, provided however, that the Trust or the
Distributor shall have prior approval of the use of said counsel or the
expenditure of said fees, which approval shall not be unreasonably
withheld.
This
indemnification shall be in addition to any liability which the Trust or
the
Distributor may otherwise have.
SERVICE
FEES
With
respect to shares of the Funds held under Contracts and Plans pursuant to
the
terms of this Agreement, NFS hereby agrees to perform the services listed
in
Exhibit C for the Funds, as agent of the Distributor. In
consideration for the services provided by NFS pursuant to this Agreement,
the
Distributor will calculate and pay, and NFS or an NFS Affiliate/Subsidiary
that
is registered as a broker/dealer under the Securities Exchange Act of 1934
(“1934 Act”), will be entitled to receive from the Distributor a
fee. Any distribution services NFS performs for the Other Rydex Funds
pursuant to this Agreement will be performed only by a person who is registered
as a securities broker under the 1934 Act, and is a member in good standing
with
the NASD. Such fee will be calculated at an annualized rate equal to
the rates shown on Exhibit C of the average daily net assets of each Fund
for
which NFS performed services during the period in which they were
earned.
The
fee
will be paid to NFS, or its designee, by electronic funds transfer as soon
as
practicable, but no later than 30 days after the end of the period in which
they
were earned. If the cumulative sum of Fund assets serviced by NFS is
less than $ as of December 31 of the prior calendar year, the fee will be
paid
on a quarterly basis. Once the cumulative sum of Fund assets serviced
by NFS is greater than $, the fee will be paid on a monthly
basis. The fee payment will be accompanied or preceded by a statement
showing the calculation of the amounts being paid by the Distributor for
the
relevant period and such other supporting data as may be reasonably requested
by
NFS.
With
respect to the services provided by NFS to the Variable Funds, the fee shall
be
paid by the Distributor or one of its affiliates from funds received pursuant
to
the Variable Funds’ Investor Services plan (the “Investor Services Plan”), a
copy of which is attached as Exhibit D and incorporated herein by
reference.
With
respect to the services provided by NFS to the Other Rydex Funds, the fee
shall
be paid by:
|
(a)
|
the
Distributor or one of its affiliates from general operating
funds;
|
|
(b)
|
the
Distributor or one of its affiliates from funds received pursuant
to the
Other Rydex Funds’ distribution and/or shareholder services plans
applicable to their various series and classes (“Distribution and/or
Service Plans”) copies of which are attached as Exhibit E and incorporated
herein by reference; or
|
|
(c)
|
a
combination thereof.
|
The
fee
shall be calculated as an annualized percentage of the average aggregate
amount
invested in the Funds for the applicable period. The average
aggregate amount shall be computed by totaling the aggregate investment on
each
business day during the period and dividing by the total number of Business
Days
during the period.
The
parties agree that a fee will be paid to NFS or its designee according to
this
Agreement with respect to each Fund as long as shares of such Fund are held
by
NFS on behalf of the beneficial Contract owners and/or Plan participants
of
Contracts issued by NFS. This provision will survive the termination
of this Agreement.
NFS
and
Distributor agree that the fees described in this Agreement are for
administrative or distribution services of the Other Rydex Funds only, and
for
administrative services of the Variable Funds only, and do not constitute
payment in any manner for investment advisory services for the Funds or for
costs of administrative and distribution services on behalf of the
Contracts.
COMPLIANCE
WITH AGREEMENT
The
forbearance or neglect of any party to insist upon strict compliance by another
party with any of the provisions of this Agreement, whether continuing or
not,
or to declare a forfeiture of termination against the other parties, shall
not
be construed as a waiver of any rights or privileges of any party
hereunder. No waiver of any right or privilege of any party arising
from any default or failure of performance by any party shall affect the
rights
or privileges of the other parties in the event of a further default or failure
of performance.
TERMINATION
This
Agreement shall terminate as to the availability of shares of the Variable
Funds
for new Contracts or shares of the Other Rydex Funds for new Plans:
|
(1)
|
at
the option of NFS or the Distributor upon at least 90 days advance
written
notice to the other;
|
|
(2)
|
at
any time upon the Distributor ‘s election, if a Fund’s board determines
that liquidation of a Fund is in the best interest of a Fund or
its
beneficial owners. Reasonable advance notice of election to
liquidate shall be provided to NFS in order to permit the substitution
of
Fund shares, if necessary, with shares of another investment company
pursuant to the 1940 Act and other applicable securities
regulations;
|
|
(3)
|
if
the Contracts are not treated as annuity contracts or life insurance
policies by the applicable regulators or under applicable rules
and
regulations;
|
|
(4)
|
if
the Variable Accounts are not deemed “segregated asset accounts” by the
applicable regulators and taxing authorities or under applicable
rules and
regulations;
|
|
(5)
|
at
the option of NFS, if Variable Fund shares are not available for
any
reason to meet the requirements of Contracts or Other Rydex Fund
shares
are not available for any reason to meet the requirements of Plans,
as
determined by NFS. Reasonable advance notice of election to
terminate (and time to cure) shall be furnished by
NFS;
|
|
(6)
|
at
the option of NFS or the Distributor, upon institution of relevant
formal
proceedings against the broker-dealer(s) marketing the Contracts
or shares
of the Other Rydex Funds, the Distributor, the Variable Accounts,
NFS, or
the Funds by the NASD, the IRS, the Department of Labor, the SEC,
state
insurance departments or any other regulatory
body;
|
|
(7)
|
upon
a decision by NFS, in accordance with the 1940 Act and applicable
regulations, to substitute Variable Fund shares with the shares
of another
investment company for Contracts for which the Variable Fund shares
have
been selected to serve as the underlying investment medium. NFS
shall give at least 60 days written notice to the Distributor of
any
proposal to substitute a new investment medium for Variable Fund
shares;
|
|
(8)
|
upon
assignment of this Agreement unless such assignment is made with
the
written consent of each party; and
|
|
(9)
|
in
the event Variable Fund or Other Rydex Fund shares are not registered,
issued or sold pursuant to federal law and state securities laws,
or such
laws preclude the use of Variable Fund or Other Rydex Fund shares
as an
underlying investment medium of Contracts or Plans. Prompt
written notice shall be given by either party to the other in the
event
the conditions of this provision
occur.
|
JURISDICTION
This
Agreement shall be construed and the provisions hereof interpreted under
and in
accordance with the laws of Ohio, without respect to its choice of law
provisions and in accordance with the 1940 Act. In the case of any
conflict, the 1940 Act shall control.
PARTNERSHIPS/JOINT
VENTURES
Nothing
in this Agreement shall be deemed to create a partnership or joint venture
by
and among the parties hereto.
AMENDMENTS
TO THIS AGREEMENT
This
Agreement supersedes any and all prior Agreements made by and between the
parties.
This
Agreement may not be amended or modified except by a written amendment, which
includes any amendments to the Exhibits, executed by all parties to the
Agreement.
EXECUTION
Each
party hereby represents and warrants to the other that the persons executing
this Agreement on its behalf are duly authorized and empowered to execute
and
deliver the Agreement and that the Agreement constitutes a legal, valid and
binding obligation, and is enforceable in accordance with its
terms. Except as particularly set forth herein, neither party assumes
any responsibility hereunder and will not be liable to the other for any
damages, loss of data, delay or any other loss whatsoever caused by events
beyond its control. Further, NFS represents and warrants that it is
authorized to enter into this agreement on behalf of each of its subsidiaries
and affiliates listed in Exhibit A and to contractually bind the subsidiaries
and affiliates to the terms of this Agreement to the same extent they would
had
they manually signed this Agreement.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
NATIONWIDE
FINANCIAL SERVICES, INC.
_________________________________________
By: Xxxxxxx
X. Xxxxxx
Title: Vice
President
Investment
Management
Relations
RYDEX
VARIABLE TRUST
__________________________________________
By: X.
X. Xxxxxx, Xx.
Title: President
RYDEX
DISTRIBUTORS, INC.
__________________________________________
By: X.
X. Xxxxxx, Xx.
Title: President
EXHIBIT
A
This
Exhibit corresponds to the Fund Agreement dated September ___, 2001
|
Registered
Broker Dealers
|
Affiliates
and Subsidiaries
|
|
· Nationwide
Advisory Services, Inc.
· Nationwide
Investment Services Corporation
|
· Nationwide
Life Insurance Company
· Nationwide
Life and Annuity Insurance Company
· Nationwide
Trust Company, FSB
· Nationwide
Retirement Solutions, Inc.
· National
Deferred Compensation, Inc.
|
|
Variable
Accounts
|
|||
|
Nationwide
Variable Account
Nationwide
Variable Account-II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
Fidelity Advisor VA
Nationwide
Variable Account-8
Nationwide
Variable Account-9
Nationwide
Variable Account-10
Nationwide
Variable Account-11
Nationwide
Variable Account-12
Nationwide
Variable Account-13
Multi-Flex
Variable Account
Nationwide
VA Separate Account-A
Nationwide
VA Separate Account-B
Nationwide
VA Separate Account-C
Nationwide
VA Separate Account-D
|
Nationwide
VLI Separate Account
Nationwide
VLI Separate Account-2
Nationwide
VLI Separate Account-3
Nationwide
VLI Separate Account-4
Nationwide
VLI Separate Account-5
Nationwide
VLI Separate Account-6
Nationwide
VL Separate Account
Nationwide
VL Separate Account-A
Nationwide
VL Separate Account-B
Nationwide
VL Separate Account-C
Nationwide
VL Separate Account-D
Nationwide
DC Variable Account
Nationwide
DC variable Account-II
NACo
Variable Account
Nationwide
Governmental Plans Variable
Account
Nationwide
Governmental Plans Variable
Account-II
Nationwide
Qualified Plans Variable Account
Nationwide
Private Placement Variable Account
Ohio
DC Variable Account
|
||
A-
EXHIBIT
B
This
Exhibit corresponds to the Fund Agreement dated September ___, 2001
Series
of
the Rydex Variable Trust (the “Variable Funds”):
|
Nova
Fund
Ursa
Fund
OTC
Fund
Arktos
Fund
Mekros
Fund
Medius
Fund
U.S.
Government Bond Fund
Titan
500 Fund
Tempest
500 Fund
Velocity
100 Fund
Venture
100 Fund
Large-Cap
Europe Fund
Large-Cap
Japan Fund
Banking
Fund
Basic
Materials Fund
Biotechnology
Fund
|
Consumer
Products Fund
Electronics
Fund
Energy
Fund
Energy
Services Fund
Financial
Services Fund
Health
Care Fund
Internet
Fund
Leisure
Fund
Precious
Metals Fund
Retailing
Fund
Technology
Fund
Telecommunications
Fund
Transportation
Fund
Utilities
Fund
U.S.
Government Money Market Fund
|
Series
of
the Rydex Series Funds (the “Series Funds,” together with the Dynamic Funds, the
“Other Rydex Funds”):
|
Nova
Fund
Ursa
Fund
OTC
Fund
Arktos
Fund
Mekros
Fund
Juno
Fund
U.S.
Government Bond Fund
Large-Cap
Europe Fund
Large-Cap
Japan Fund
Banking
Fund
Basic
Materials Fund
Biotechnology
Fund
Consumer
Products Fund
Electronics
Fund
|
Energy
Fund
Energy
Services Fund
Financial
Services Fund
Health
Care Fund
Internet
Fund
Leisure
Fund
Precious
Metals Fund
Retailing
Fund
Technology
Fund
Telecommunications
Fund
Transportation
Fund
Utilities
Fund
U.S.
Government Money Market Fund
|
Series
of
the Rydex Dynamic Funds (the “Dynamic Funds,” together with the Series Funds,
the “Other Rydex Funds”):
|
Titan
500 Fund
Tempest
500 Fund
|
Velocity
100 Fund
Venture
100 Fund
|
B-
EXHIBIT
C
Services
Provided by NFS with Respect to Contracts Issued Through the Variable Accounts
Listed in Exhibit A:
Pursuant
to the Agreement, NFS agrees to perform administrative and shareholder services
with respect to the Variable Funds, including but not limited to the
following:
|
1.
|
Mailing
or delivering prospectuses and statements of additional information
to
Contract owners and/or financial advisors who allocate Contract
funds for
shares of Variable Funds (“Financial
Advisors”);
|
|
2.
|
Forwarding
communications from the Variable Funds to Contract owners and/or
Financial
Advisors, including proxy solicitation material and annual and
semi-annual
reports;
|
|
3.
|
Assisting
in facilitating and processing transactions in shares of the Variable
Funds in connection with strategic or tactical asset allocation
investing;
|
|
4.
|
Assisting
in providing the Distributor with advance information on strategic
and
tactical asset allocation trends and anticipated investment activity
in
and among the Variable Funds via a datafeed transmission from NFS
to the
Distributor on days in which the New York Stock Exchange is
open. The datafeeds will be transmitted at times mutually
agreed to by the parties. If a datafeed cannot be transmitted,
an immediate communication will be provided to the Distributor
by
NFS;
|
|
5.
|
Assisting
Contract owners who wish or need to change Financial Advisors;
and
|
|
6.
|
Providing
support services to Contract owners and Financial Advisors, including,
but
not limited to: (a) providing Contract owners and Financial Advisors
with
updates on policies and procedures; (b) answering questions of
Contract
owners and Financial Advisors regarding Variable Fund investments;
(c)
providing performance information regarding the Variable Funds;
(d)
providing information to Financial Advisers regarding the Variable
Funds’
investment objectives; (e) providing investor account information
to
Contract owners and/or Financial Advisors; and (f) redeeming Variable
Fund
shares, if necessary, for the payment of Financial Advisor
fees.
|
The
Fee
for the above services shall be __basis points per
annum.
Services
Provided by NFS to Plans:
Pursuant
to the Agreement, NFS agrees to perform administrative and shareholder services
with respect to the Other Rydex Funds, including but not limited to the
following:
|
1.
|
Maintaining
separate records for each Plan, which shall reflect the Fund shares
purchased and redeemed and Fund share balances of such
Plans. Nationwide will maintain accounts with each Fund on
behalf of Plans, and such account shall be in the name of Nationwide
(or
its nominee) as the record owner of shares owned by such
Plans.
|
|
2.
|
Disbursing
or crediting to Plans all proceeds of redemptions of shares of
the Funds
and all dividends and other distributions not reinvested in shares
of the
Funds.
|
|
3.
|
Preparing
and transmitting to Plans, as required by law, periodic statements
showing
the total number
|
C-
|
4.
|
of
shares owned as of the statement closing date, purchases and redemptions
of Fund shares during the period covered by the statement and the
dividends and other distributions paid during the statement period
(whether paid in cash or reinvested in Fund shares), and such other
information as may be required, from time to time, by
Plans.
|
|
5.
|
Supporting
and responding to service inquires from
Plans.
|
|
6.
|
Maintaining
and preserving all records required by law to be maintained and
preserved
in connection with providing the services for
Plans.
|
|
7.
|
Generating
written confirmations and quarterly statements to Plan
participants.
|
|
8.
|
Distributing
to Plans, to the extent required by applicable law, Fund prospectuses,
proxy materials, periodic fund reports to shareholders and other
materials
that the Funds are required by law or otherwise to provide to their
shareholders or prospective
shareholders.
|
|
9.
|
Transmitting
purchase and redemption orders to the Funds on behalf of the
Plans.
|
The
fee
for the above services shall be as follows:
Rydex
Series Funds – Investor Class SharesBps per annum)
Rydex
Series Funds – Advisor Class SharesBps per annum)
Rydex
Series Funds – H Class Shares Bps per annum)
Rydex
Dynamic Funds – H Class Shares Bps per annum)
C-
EXHIBIT
D
INVESTOR
SERVICES PLAN
RYDEX
VARIABLE TRUST
WHEREAS,
Rydex Variable Trust (the “Trust”) is engaged in business as an open-end
management investment company registered under the Investment Company Act
of
1940, as amended (the “1940 Act”) and the Trust desires to compensate service
providers (the “Service Providers”) who provide the services described herein to
investors who engage indirectly in strategic or tactical asset allocation
investing in shares of funds of the Trust (“Investors”) listed in Exhibit A
hereto; and
WHEREAS,
the Trustees of the Trust have determined that there is a reasonable likelihood
that the Investor Services Plan (the “Plan”) will benefit the funds of the Trust
(the “Funds”) and Investors in shares of such Funds (the “Shares”).
NOW,
THEREFORE, the Trustees of the Trust hereby adopt this Plan.
Section
1. The Trust has adopted this Plan to enable the Trust
to provide investor services.
Section
2. The Trust will pay Service Providers a fee up to the
amount set forth on Exhibit A for providing investor
services. Investor services include some or all of the
following:
|
|
(i)
|
printing
Fund prospectuses and statements of additional information and
mailing
them to Investors or to financial advisors who allocate funds for
investments in Shares of the Funds on behalf of Investors (“Financial
Advisors”);
|
|
|
(ii)
|
forwarding
communications from the Funds to Investors or Financial Advisors,
including proxy solicitation material and annual and semiannual
reports;
|
|
|
(iii)
|
assistance
in facilitating and processing increased transactions in Shares
of the
Funds in connection with strategic or tactical asset allocation
investing;
|
|
|
(iv)
|
assistance
in providing the Fund with advance information on strategic and
tactical
asset allocation trends and anticipated investment activity in
and among
the Funds;
|
|
|
(v)
|
assisting
Investors who wish or need to change Financial Advisers;
and
|
|
|
(vi)
|
providing
support services to Financial Advisers, including, but not limited
to: (a)
providing Financial Advisers with updates on policies and procedures;
(b)
answering questions of Financial Advisers regarding the Funds’ portfolio
investments; (c) providing performance information regarding the
Funds;
(d) providing information to Financial Advisers regarding the Funds’
investment objectives; (e) providing Investor account information
to
Financial Advisers; and (f) redeeming Fund Shares, if necessary,
for the
payment of Financial Adviser fees.
|
Service
Providers may also use this fee for payments to insurance companies, and
to
affiliates and subsidiaries of such Service Providers, as compensation for
providing the services described herein.
Section
3. This Plan shall not take effect with respect to any
Fund until it has been approved by a vote of the majority of both the Trustees
of the Trust and the Qualified Trustees (as defined in Section 8 herein),
cast
either in person, telephonically or by written consent.
D-
Section
4. Any person authorized to direct the disposition of
monies paid or payable by the Trust pursuant to this Plan or any related
agreement shall provide to the Trustees of the Trust, at least quarterly,
a
written report of the amounts so expended and the purposes for which such
expenditures were made.
Section
5. This Plan may be terminated at any time by the vote
of a majority of the Qualified Trustees of the Trust.
Section
6. All agreements with any person relating to
implementation of this Plan shall be in writing, and any agreement related
to
this Plan shall provide that: (i) such agreement may be terminated at any
time,
without payment of any penalty, by the vote of a majority of the Qualified
Trustees, on not more than 60 days written notice to any other party to the
agreement; and (ii) that such agreement shall terminate automatically in
the
event of its assignment.
Section
7. This Plan may not be amended to increase materially
the amount of expenses permitted pursuant to Section 2 hereof without the
approval of a majority of the Qualified Trustees of the Trust.
Section
8. As used in this Plan: (i) the term “Qualified
Trustees” shall mean those Trustees of the Trust who are not interested persons
of the Trust, and have no direct or indirect financial interest in the operation
of this Plan or any agreements related to it; and (ii) the terms “assignment”
and “interested person” shall have the respective meanings specified in the 1940
Act and the rules and regulations thereunder, subject to such exemptions
as may
be granted by the Securities and Exchange Commission.
Section
9. While this Plan is in effect, the
selection and nomination of those Trustees who are not interested persons
of the
Trust within the meaning of Section 2(a)(19) of the 1940 Act shall be committed
to the discretion of the Trustees then in office who are not interested persons
of the Trust.
Section
10. This Plan shall not obligate the Trust or any other
party to enter into an agreement with any particular person.
Dated
as
of December 31, 1998.
D-
EXHIBIT
A TO
INVESTOR
SERVICES PLAN
RYDEX
VARIABLE TRUST
Rydex
Variable Trust Investor Service Fee
Rydex
Funds
Nova
Fund
Ursa
Fund
OTC
Fund
Arktos
Fund
Mekros
Fund
Medius
Fund
U.S.
Government Bond Fund
Titan
500
Fund
Tempest
500 Fund
Velocity
100 Fund
Venture
100 Fund
Large-Cap
Europe Fund
Large-Cap
Japan Fund
Banking
Fund
Basic
Materials Fund
Biotechnology
Fund
Consumer
Products Fund
Electronics
Fund
Energy
Fund
Energy
Services Fund
Financial
Services Fund
Health
Care Fund
Internet
Fund
Leisure
Fund
Precious
Metals Fund
Real
Estate Fund
Technology
Fund
Telecommunications
Fund
Transportation
Fund
Utilities
Fund
U.S.
Government Money Market Fund
Investor
Service Fee
Calculation
of Fee
D-
EXHIBIT
E
DISTRIBUTION
AND SHAREHOLDER SERVICES PLAN
RYDEX
SERIES FUNDS
WHEREAS,
Rydex Series Funds (the “Trust”) is engaged in business as an open-end
investment company registered under the Investment Company Act of 1940 (the
“1940 Act”) and the Trust desires to compensate Service Providers who provide,
the services described herein to clients (the “Clients”) who from time to time
beneficially own Advisor Class Shares or C Class Shares (the “Shares”) of any of
the Trust’s Funds (the “Funds”) listed in Exhibits A and B hereto;
and
WHEREAS,
the Trustees of the Trust have determined that there is a reasonable likelihood
that the following Plan will benefit the Funds of the Trust and the Clients
of
the Shares of such Funds; and
WHEREAS,
pursuant to Rule 12b-1 under the 1940 Act, the Trustees of the Trust adopt
the
Plan under which Service Providers will provide, pursuant to a Distribution
Agreement, the distribution services stated in Section 2 herein;
and
WHEREAS,
the Trustees of the Trust adopt the Plan under which Service Providers will
provide to Clients some or all of the shareholder services stated in Section
3
herein;
NOW,
THEREFORE, the Trustees of the Trust hereby adopt this Plan.
Section
1. The Trust has adopted this Plan to enable the Trust
to directly or indirectly bear expenses relating to the distribution of the
Shares of the Trust and for providing shareholder services.
Section
2. The Trust will pay Service Providers a fee up to the
amount set forth on Exhibit A and Exhibit B for distribution
services. Service Providers may use this fee for (i) compensation for
its services in connection with distribution assistance; or (ii) payments
to
financial institutions and intermediaries such as banks, savings and loan
associations, insurance companies and investment counselors, broker-dealers,
mutual fund supermarkets and the Service Providers’ affiliates and subsidiaries
as compensation for services or reimbursement of expenses incurred in connection
with distribution assistance.
Section
3. The Trust will pay Service Providers a fee up to the
amount set forth in Exhibit A and Exhibit B for shareholder
services. Service Providers may use this fee for (i) maintaining
accounts relating to Clients that invest in Shares; (ii) arranging for bank
wires; (iii) responding to Client inquiries relating to the services performed
by Service Providers; (iv) responding to inquiries from Clients concerning
their
investment in Shares; (v) assisting Clients in changing dividend options,
account designations and addresses; (vi) providing information periodically
to
Clients showing their position in Shares; (vii) forwarding shareholder
communications from the Funds such as proxies, shareholder reports, annual
reports, and dividend distribution and tax notices to Clients; (viii) processing
purchase, exchange and redemption requests from Clients and placing orders
with
the Funds or its service providers; (ix) providing sub-accounting with respect
to Shares beneficially owned by Clients; and (x) processing dividend payments
from the Funds on behalf of Clients. Service Providers may also use
this fee for payments to financial institutions and intermediaries such as
banks, savings and loan associations, insurance companies and investment
counselors, broker-dealers, mutual fund supermarkets and the Service Providers’
affiliates and subsidiaries as compensation for such services as are described
herein.
F-
Section
4. This Plan shall not take effect with respect to any
Fund until it has been approved (a) by a vote of at least a majority of the
outstanding voting securities of the Shares of such Fund; and (b) together
with
any related agreements, by votes of the majority of both (i) the Trustees
of the
Trust and (ii) the Qualified Trustees (as defined in Section 10 herein),
cast in
person at a Board of Trustees meeting called for the purpose of voting on
this
Plan or such agreement.
Section
5. This Plan shall continue in effect for a period of
more than one year after it takes effect, only for so long as such continuance
is specifically approved at least annually in the manner provided in Part
(b) of
Section 4 herein for the approval of this Plan.
Section
6. Any person authorized to direct the disposition of
monies paid or payable by the Trust pursuant to this Plan or any related
agreement shall provide to the Trustees of the Trust, at least quarterly,
a
written report of the amounts so expended and the purposes for which such
expenditures were made.
Section
7. This Plan may be terminated at any time by the vote
of a majority of the Qualified Trustees or by vote of a majority of the
outstanding voting securities of the Shares of the Funds.
Section
8. All agreements with any person relating to
implementation of this Plan shall be in writing, and any agreement related
to
this Plan shall provide (a) that such agreement may be terminated at any
time,
without payment of any penalty, by the vote of a majority of the Qualified
Trustees or by the vote of a majority of the outstanding voting securities
of
the Shares of the Funds, on not more than 60 days written notice to any other
party to the agreement; and (b) that such agreement shall terminate
automatically in the event of its assignment.
Section
9. This Plan may not be amended to increase materially
the amount of distribution expenses permitted pursuant to Section 2 hereof
without the approval of Shareholders holding a majority of the outstanding
voting securities of the Shares of the Funds, and all material amendments
to
this Plan shall be approved in the manner provided in Part (b) of Section
4
herein for the approval of this Plan.
Section
10. As used in this Plan, (a) the term “Qualified
Trustees” shall mean those Trustees of the Trust who are not interested persons
of the Trust, and have no direct or indirect financial interest in the operation
of this Plan or any agreements related to it, and (b) the terms “assignment” and
“interested person” shall have the respective meanings specified in the 1940 Act
and the rules and regulations thereunder, subject to such exemptions as may
be
granted by the Securities and Exchange Commission.
Section
11. While this Plan is in effect, the selection and
nomination of those Trustees who are not interested persons of the Trust
within
the meaning of Section 2(a)(19) of the 1940 Act shall be committed to the
discretion of the Trustees then in office who are not interested persons
of the
Trust.
Section
12. This Plan shall not obligate the Trust or any other
party to enter into an agreement with any particular person.
Amended
and Restated as of August 28, 2000.
F-
EXHIBIT
A TO
DISTRIBUTION
AND SHAREHOLDER SERVICES PLAN
RYDEX
SERIES FUNDS
Rydex
Series Funds - Advisor Class
Distribution
and Shareholder Service Fees
Rydex
Funds - Advisor Class
U.S.
Government Money Market Fund
Nova
Fund
Ursa
Fund
OTC
Fund
Banking
Fund
Basic
Materials Fund
Biotechnology
Fund
Consumer
Products Fund
Electronics
Fund
Energy
Fund
Energy
Services Fund
Financial
Services Fund
Health
Care Fund
Internet
Fund
Leisure
Fund
Precious
Metals Fund
Retailing
Fund
Real
Estate Fund
Technology
Fund
Telecommunications
Fund
Transportation
Fund
Utilities
Fund
Distribution
and Shareholder Service Fees
Distribution
Services……………………………………….
Shareholder
Services………………………………………..
Calculation
of Fees
F-
EXHIBIT
B TO
DISTRIBUTION
AND SHAREHOLDER SERVICES PLAN
RYDEX
SERIES FUNDS
DISTRIBUTION
PLAN
RYDEX
SERIES FUNDS
WHEREAS,
Rydex Series Funds (the “Trust”) is engaged in business as an
open-end investment company registered under the Investment Company Act of
1940
(the “1940 Act”) and the Trust desires to compensate Service Providers who
provide, the services described herein to shareholders (“Shareholders”) who from
time to time beneficially own the shares (the “Shares”) of any of the
Trust’s Funds (the “Funds”) listed on Exhibit A hereto; and
WHEREAS,
the Trustees of the Trust have determined that there is a reasonable likelihood
that the following Plan will benefit the Funds of the Trust and Shareholders
of
the Shares of such Funds; and
WHEREAS,
pursuant to Rule 12b-1 under the 1940 Act, the Trustees of the Trust adopt
the
Plan under which Service Providers will provide, pursuant to a Distribution
Agreement, the distribution services stated in Section 2 herein;
NOW,
THEREFORE, the Trustees of the Trust hereby adopt this Plan.
Section
1. The Trust has adopted this Plan to enable the Trust
to directly or indirectly bear expenses relating to the distribution of the
Shares of the Trust.
Section
2. The Trust will pay Service Providers a fee up to the
amount set forth on Exhibit A for distribution services. Service
Providers may use this fee for (i) compensation for its services in connection
with distribution assistance; or (ii) payments to financial institutions
and
intermediaries such as banks, savings and loan associations, insurance companies
and investment counselors, broker-dealers, mutual fund supermarkets and the
Service Provider’s affiliates and subsidiaries as compensation for services or
reimbursement of expenses incurred in connection with distribution
assistance.
Section
3. This Plan shall not take effect with respect to any
Fund until it has been approved (a) by a vote of at least a majority of the
outstanding voting securities of the Shares of such Fund; and (b) together
with
any related agreements, by votes of the majority of both (i) the Trustees
of the
Trust and (ii) the Qualified Trustees (as defined in Section 9 herein), cast
in
person at a Board of Trustees meeting called for the purpose of voting on
this
Plan or such agreement.
Section
4. This Plan shall continue in effect for a period of
more than one year after it takes effect, only for so long as such continuance
is specifically approved at least annually in the manner provided in Part
(b) of
Section 3 herein for the approval of this Plan.
Section
5. Any person authorized to direct the disposition of
monies paid or payable by the Trust pursuant to this Plan or any related
agreement shall provide to the Trustees of the Trust, at least quarterly,
a
written report of the amounts so expended and the purposes for which such
expenditures were made.
Section
6. This Plan may be terminated at any time by the vote
of a majority of the Qualified Trustees or by vote of a majority of the
outstanding voting securities of the Shares of the Funds.
F-
Section
7. All agreements with any person relating to
implementation of this Plan shall be in writing, and any agreement related
to
this Plan shall provide (a) that such agreement may be terminated at any
time,
without payment of any penalty, by the vote of a majority of the Qualified
Trustees or by the vote of a majority of the outstanding voting securities
of
the Shares of the Funds, on not more than 60 days written notice to any other
party to the agreement; and (b) that such agreement shall terminate
automatically in the event of its assignment.
Section
8. This Plan may not be amended to increase materially
the amount of distribution expenses permitted pursuant to Section 2 hereof
without the approval of Shareholders holding a majority of the outstanding
voting securities of the Shares of the Funds, and all material amendments
to
this Plan shall be approved in the manner provided in Part (b) of Section
3
herein for the approval of this Plan.
Section
9. As used in this Plan, (a) the term “Qualified
Trustees” shall mean those Trustees of the Trust who are not interested persons
of the Trust, and have no direct or indirect financial interest in the operation
of this Plan or any agreements related to it, and (b) the terms “assignment” and
“interested person” shall have the respective meanings specified in the 1940 Act
and the rules and regulations thereunder, subject to such exemptions as may
be
granted by the Securities and Exchange Commission.
Section
10. While this Plan is in effect, the selection and
nomination of those Trustees who are not interested persons of the Trust
within
the meaning of Section 2(a)(19) of the 1940 Act shall be committed to the
discretion of the Trustees then in office who are not interested persons
of the
Trust.
Section
11. This Plan shall not obligate the Trust or any other
party to enter into an agreement with any particular person.
Dated
as
of February 25, 2000.
F-
EXHIBIT
C TO
DISTRIBUTION
AND SHAREHOLDER SERVICES PLAN
RYDEX
SERIES FUNDS
Dated
February 25, 2000
Rydex
Series Funds
Distribution
Fees
Rydex
Series Funds
Large-Cap
Europe Fund
Large-Cap
Japan Fund
Mekros
Fund
Medius
Fund
Distribution
Fees
Distribution
Services
Calculation
of Fees
EXHIBIT
D TO
DISTRIBUTION
AND SHAREHOLDER SERVICES PLAN
RYDEX
SERIES FUNDS
DISTRIBUTION
PLAN
RYDEX
DYNAMIC FUNDS
WHEREAS,
Rydex Dynamic Funds (the “Trust”) is engaged in business as an
open-end investment company registered under the Investment Company Act of
1940
(the “1940 Act”) and the Trust desires to compensate Service Providers who
provide, the services described herein to shareholders (“Shareholders”) who from
time to time beneficially own the shares (the “Shares”) of any of the
Trust’s Funds (the “Funds”) listed on Exhibit A hereto; and
WHEREAS,
the Trustees of the Trust have determined that there is a reasonable likelihood
that the following Plan will benefit the Funds of the Trust and Shareholders
of
the Shares of such Funds; and
WHEREAS,
pursuant to Rule 12b-1 under the 1940 Act, the Trustees of the Trust adopt
the
Plan under which Service Providers will provide, pursuant to a Distribution
Agreement, the distribution services stated in Section 2 herein;
NOW,
THEREFORE, the Trustees of the Trust hereby adopt this Plan.
Section
1. The Trust has adopted this Plan to enable the Trust
to directly or indirectly bear expenses relating to the distribution of the
Shares of the Trust.
Section
2. The Trust will pay Service Providers a fee up to the
amount set forth on Exhibit A for distribution services. Service
Providers may use this fee for (i) compensation for its services in connection
with distribution assistance; or (ii) payments to financial institutions
and
intermediaries such as banks, savings and loan associations, insurance companies
and investment counselors, broker-dealers, mutual fund supermarkets and the
Service Provider’s affiliates and subsidiaries as compensation for services or
reimbursement of expenses incurred in connection with distribution
assistance.
Section
3. This Plan shall not take effect with respect to any
Fund until it has been approved (a) by a vote of at least a majority of the
outstanding voting securities of the Shares of such Fund; and (b) together
with
any related agreements, by votes of the majority of both (i) the Trustees
of the
Trust and (ii) the Qualified Trustees (as defined in Section 9 herein), cast
in
person at a Board of Trustees meeting called for the purpose of voting on
this
Plan or such agreement.
Section
4. This Plan shall continue in effect for a period of
more than one year after it takes effect, only for so long as such continuance
is specifically approved at least annually in the manner provided in Part
(b) of
Section 3 herein for the approval of this Plan.
Section
5. Any person authorized to direct the disposition of
monies paid or payable by the Trust pursuant to this Plan or any related
agreement shall provide to the Trustees of the Trust, at least quarterly,
a
written report of the amounts so expended and the purposes for which such
expenditures were made.
Section
6. This Plan may be terminated at any time by the vote
of a majority of the Qualified Trustees or by vote of a majority of the
outstanding voting securities of the Shares of the Funds.
F-
Section
7. All agreements with any person relating to
implementation of this Plan shall be in writing, and any agreement related
to
this Plan shall provide (a) that such agreement may be terminated at any
time,
without payment of any penalty, by the vote of a majority of the Qualified
Trustees or by the vote of a majority of the outstanding voting securities
of
the Shares of the Funds, on not more than 60 days written notice to any other
party to the agreement; and (b) that such agreement shall terminate
automatically in the event of its assignment.
Section
8. This Plan may not be amended to increase materially
the amount of distribution expenses permitted pursuant to Section 2 hereof
without the approval of Shareholders holding a majority of the outstanding
voting securities of the Shares of the Funds, and all material amendments
to
this Plan shall be approved in the manner provided in Part (b) of Section
3
herein for the approval of this Plan.
Section
9. As used in this Plan, (a) the term “Qualified
Trustees” shall mean those Trustees of the Trust who are not interested persons
of the Trust, and have no direct or indirect financial interest in the operation
of this Plan or any agreements related to it, and (b) the terms “assignment” and
“interested person” shall have the respective meanings specified in the 1940 Act
and the rules and regulations thereunder, subject to such exemptions as may
be
granted by the Securities and Exchange Commission.
Section
10. While this Plan is in effect, the selection and
nomination of those Trustees who are not interested persons of the Trust
within
the meaning of Section 2(a)(19) of the 1940 Act shall be committed to the
discretion of the Trustees then in office who are not interested persons
of the
Trust.
Section
11. This Plan shall not obligate the Trust or any other
party to enter into an agreement with any particular person.
Dated
as
of August 10, 1999
As
Amended February 25, 2000.
F-
EXHIBIT
E TO
DISTRIBUTION
AND SHAREHOLDER SERVICES PLAN
RYDEX
SERIES FUNDS
Dated
August 10, 1999
As
Amended February 25, 2000
Rydex
Dynamic Funds
Distribution
Fees
Rydex
Dynamic Funds
Titan
500
Fund
Tempest
500 Fund
Venture
100 Fund
Velocity
100 Fund
Distribution
Fees
Distribution
Services
Calculation
of Fees
F-
