ADMINISTRATIVE SERVICES AGREEMENT
This AGREEMENT is made this 18th day of October, 1999 by and between
ProFunds (the "Fund"), a Delaware business trust, and American Skandia Life
Assurance Corporation ("American Skandia"), a __________________________ life
insurance company.
WHEREAS, the Fund is registered with the Securities and Exchange
Commission ("SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund is authorized to issue interests ("Shares") in
separate portfolios, with each such portfolio representing interests in a
separate portfolio of securities and other assets; and
WHEREAS, the Fund has established a number of portfolios designated as
the ProFunds VP and set forth in Schedule A, and may establish other portfolios
in the future (each a "Portfolio" and collectively the "Portfolios"); and
WHEREAS, the Fund is currently available to offer shares of one or more
of its Portfolios to a separate account of American Skandia that funds variable
annuity contracts ("Variable Contracts") and, therefore, to serve as an
underlying investment medium for Variable Contracts offered by American Skandia;
and
WHEREAS, pursuant to an Amended and Restated Investment Advisory
Agreement between the Fund and ProFund Advisors LLC (the "Adviser") ("Advisory
Agreement"), the Fund has retained the Adviser to furnish investment advisory
and other services with respect to the Portfolios in the manner and on the terms
thereinafter set forth; and
WHEREAS, the Fund wishes to retain American Skandia to provide certain
administrative services to the Fund with respect to the Portfolios in the manner
and on the terms hereinafter set forth, and
WHEREAS, American Skandia is willing to furnish such services in the
manner and on the terms hereinafter set forth;
NOW, THEREFORE in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. Appointment. The Fund hereby appoints American Skandia as one of the
administrators (the "Administrator") to provide certain administrative and other
services with respect to the Portfolios for the period and on the terms set
forth in this Agreement. The Administrator accepts such appointment and agrees
during such period to render the services herein set forth for the compensation
herein provided.
In the event the Fund establishes and designates additional portfolios
with respect to which it desires to retain the Administrator to render the
administrative and other services hereunder, it shall notify the Administrator
in writing. If the Administrator is willing to render such services it shall
notify the Fund in writing, whereupon such additional portfolios shall become a
Portfolio hereunder.
2. Duties. Subject to the general supervision of the Board of Trustees
of the Fund, the Administrator shall provide those administrative services
reasonably necessary for the operation of the Portfolios, other than the
services provided by the Adviser pursuant to the Advisory Agreement or the
services provided to the Fund pursuant to any other service, operational or
administrative agreement.
(a) The services hereunder shall include, without limitation, the
following: (i) coordinating matters relating to the operation of the Separate
Account with the Portfolios, including any necessary coordination with the
custodian, transfer agent, dividend disbursing agent, recordkeeping agent,
accountants, attorneys, and other parties performing services, operational
functions or administration for the Portfolios; (ii) coordinating the
preparation of the necessary documents for submission to or filing with the SEC
and other federal and state regulatory authorities as may be required; (iii)
taking such other action as may be required by applicable law, with respect to
the foregoing, including without limitation the rules and regulations of the SEC
and of state insurance authorities and other regulatory agencies; (iv) providing
assistance to Variable Contract owners who use or who intend to use the
Portfolios as funding vehicles for their Variable Contracts; and (v)
coordinating with the Adviser regarding investment limitations and parameters
imposed on funding vehicles for variable annuities by the insurance laws of the
various states and by the Internal Revenue Code.
(b) The Administrator shall also make its officers and employees
available to the Board of Trustees and the officers of the Fund for consultation
and discussions regarding the operations of the Separate Account and the
Variable Contracts in connection with the administration of the Portfolios and
services provided to the Portfolios under this Agreement.
(c) In performing these services, the Administrator:
(i) Shall conform with the 1940 Act and all rules and
regulations thereunder, all other applicable federal and state laws and
regulations, with any applicable procedures adopted by the Fund's Board
of Trustees, and with the provisions of the Fund's registration
statement filed on Form N-1A, as supplemented or amended from time to
time.
(ii) Will make available to the Fund, promptly upon request,
appropriate books and records as are maintained under this agreement,
and will furnish to regulatory authorities having the requisite
authority any such books and records and any information or reports in
connection with the Administrator's services under this Agreement that
may be requested, following notice to the Fund.
(iii) Will regularly report to the Fund's Board of Trustees on
the services provided under this Agreement and will furnish the Fund's
Board of Trustees with respect to the Portfolios such periodic and
special reports with respect to such services as the Board of Trustees
may reasonably request.
3. Documentation. The Fund has made available to the Administrator
copies of each of the following documents, and will make available to it all
future amendments and supplements thereto, if any:
(a) the Fund's registration statement as filed with the SEC
and any amendments thereto; and
(b) exhibits, powers of attorneys, certificates and any and
all other documents relating to this Agreement or filed in connection
with the registration statement described above.
4. Independent Contractor. The Administrator shall for all purposes
herein be deemed to be an independent contractor and shall, unless otherwise
expressly provided herein or authorized by the Board of Trustees of the Fund
from time to time, have no authority to act for or represent the Fund in any way
or otherwise be deemed its agent.
5. Administrative Fee. As compensation for the services rendered under
this Agreement, the Fund shall pay to the Administrator a fee at an annual rate
of up to 0.25% of the average daily net assets of each Portfolio that were
invested in such Portfolio through the Separate Account. The fee payable to the
Administrator for all of the Portfolios shall be computed and accrued daily and
paid quarterly. If the Administrator shall serve for less than an entire
quarter, the foregoing compensation shall be prorated.
6. Non-Exclusivity. It is understood that the services of the
Administrator hereunder are not exclusive, and the Administrator shall be free
to render similar services to other investment companies and other clients, and
the Fund may retain other service providers to furnish operational,
administrative and other services appropriate to the Fund's operations.
7. Expenses. During the term of this Agreement, the Administrator will
pay all ordinary expenses incurred by it in connection with its obligations
under this Agreement.
8. Standard of Care. The Administrator shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Fund in
connection with matters to which this Agreement relates, except a loss resulting
from willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or the reckless disregard by it of its obligations and
duties under this Agreement.
9. Terms and Continuation. This Agreement shall take effect as of the
date indicated above, and shall remain in effect, unless sooner terminated as
provided herein, for up to two years from such date, and shall continue
thereafter on an annual basis with respect to the Portfolios provided that such
continuance is approved at least annually by the vote of a majority of the Board
of Trustees of the Fund.
This Agreement may be terminated with respect to any Portfolio:
(a) by the Fund at any time, without the payment of any penalty, with
respect to the services provided by the Administrator, by vote of a majority of
the entire Board of Trustees of the Fund and upon written notice to the
Administrator by the Fund;
(b) by the Administrator at any time, without the payment of any
penalty, upon sixty (60) days' written notice to the Fund.
10. Notice. Any notice shall be sufficiently given when sent by
registered or certified mail to the other party at the address of such party set
forth below or at such other address as such party may from time to time specify
in writing to the other party.
If to the Administrator:
American Skandia Life Assurance Company
Xxx Xxxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: ___________________
If to the Fund:
ProFunds
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
11. Fund Obligations. The Certificate of Formation of the Fund on file
with the Secretary of State of the State of Delaware was executed on behalf of
the Fund by its authorized person, and any obligation of the Fund shall be
binding only upon the assets of the Fund (or applicable Portfolio(s) thereof)
and shall not be binding upon any trustee, officer or shareholder of the Fund.
Neither the authorization of any action by the Trustees or shareholders of the
Fund nor the execution of this Agreement on behalf of the Fund shall impose any
liability upon any Trustee, officer or shareholder of the Fund.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
13. Miscellaneous. (a) This Agreement shall be governed by Maryland law
(without regard to principles of conflicts of law) except for Section 11, which
shall be governed by Delaware law; provided that nothing herein shall be
construed in a manner inconsistent with the 1940 Act or any rule or regulation
of the Securities and Exchange Commission thereunder.
(b) If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
(c) The captions in this Agreement are included for convenience only
and in no way define any of the provisions hereof or otherwise affect their
construction or effect.
(d) This Agreement may not be assigned (as defined under the 0000 Xxx)
by the Fund or the Administrator without the consent of the other party.
(e) This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below effective on the day and year first
above written.
ProFunds
By __________________________________
AMERICAN SKANDIA LIFE ASSURANCE CORPORATION,
a _________________ insurance company
By ___________________________________
Schedule A
Dated: October 18, 1999
Portfolios
ProFund VP UltraOTC
ProFund VP Small Cap
ProFund VP Europe 30
