ProFunds
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
SERVICES AGREEMENT
[Name]
[Address]
[City, State, Zip]
Ladies and Gentlemen:
ProFunds ("Trust") is an open-end management investment company
organized as a Delaware business trust and registered with the Securities and
Exchange Commission ("SEC") under the Investment Company Act of 1940, as amended
("1940 Act"). On behalf of each of the ProFunds VP series of the Trust
identified in Schedule A ("Funds"), the Trustees of the Trust have adopted a
Distribution Plan ("Plan") that, among other things, authorizes the Trust to
enter into this Agreement with you ("Authorized Firm") concerning the provision
of the services ("Services") set forth in Section 2 to your contract owners or
other permissible purchasers ("Customers") who may from time to time be
investors, or prospective investors, in the Funds. The terms and conditions of
this Agreement are as follows:
1. REFERENCE TO PROSPECTUS; DETERMINATION OF NET ASSET VALUE.
1.1 Reference is made to the prospectus for each Fund as from time to time
are effective under the Securities Act of 1933 (the "1933 Act"). Terms
defined therein and not otherwise defined herein are used herein with
the meaning so defined.
1.2 For purposes of determining the fees payable to you under Section 3,
the average daily net asset value of a Fund's shares will be computed
in the manner specified in the Trust's registration statement (as the
same is in effect from time to time) in connection with the computation
of the net asset value of such Fund's shares for purposes of purchases
and redemptions.
2. SERVICES AS AUTHORIZED FIRM.
2.1 Authorized Firm is hereby authorized and may from time to time
undertake to perform the following non-exclusive list of Services: the
printing and mailing of Fund prospectuses, statements of additional
information, any supplements thereto and shareholder reports for
prospective investors; the development, preparation, printing and
mailing of advertisements, sales literature and other promotional
materials describing and/or relating to the Funds; holding seminars and
sales meetings designed to promote the distribution of the Funds'
shares; obtaining information and providing explanations to wholesale
and retail distributors of contracts regarding the investment
objectives and policies and other information about the Funds,
including the performance of the Funds; training sales personnel
regarding the Funds; and financing any other activity that is primarily
intended to result in the sale of shares of the Funds. Overhead and
other expenses of Authorized Firm related to the provision of Services,
including telephone and other communications expenses, may be included
in the information regarding amounts expended for such activities.
2.2 In addition, Authorized Firm may receive compensation pursuant to this
Agreement for making the Funds available to its Customers as funding
vehicles for their variable insurance contracts, or compensation for
services performed and expenses incurred by Authorized Firm or its
affiliates in connection with the sale of shares of the Funds.
2.3 Authorized Firm will provide such office space and equipment, telephone
facilities, and personnel (which may be any part of the space,
equipment, and facilities currently used in Authorized Firm's business,
or any personnel employed by Authorized Firm) as may be reasonably
necessary or beneficial in order to provide such Services.
2.4 The procedures relating to the handling of orders shall be subject to
instructions which the Trust shall forward from time to time to
Authorized Firm. All orders for a Fund's shares are subject to
acceptance or rejection by the Trust in its sole discretion, and the
Trust may, in its discretion and without notice, suspend or withdraw
the sale of a Fund's shares, including the sale of such shares to
Authorized Firm for the account of any Customer or Customers, unless
otherwise agreed to by the parties to this Agreement.
2.5 In no transaction shall Authorized Firm act as dealer for its own
account; Authorized Firm shall act solely for, upon the specific or
pre-authorized instructions of, and for the account of, its Customers.
For all purposes of this Agreement, Authorized Firm will be deemed to
be an independent contractor, and will have no authority to act as
agent for the Trust or any dealer of the shares in any matter or in any
respect. No person is authorized to make any representations concerning
the Trust or a Fund's shares except those representations contained in
the Fund's then-current prospectus and statement of additional
information and in such printed information as the Trust may
subsequently prepare, unless otherwise agreed to by the parties to this
Agreement.
2.6 Authorized Firm and its employees will, upon request, be available
during normal business hours to consult with the Trust or its designees
concerning the performance of Authorized Firm's responsibilities under
this Agreement. Authorized Firm will provide to the Trust's Board of
Trustees (or assist in the provision of), and the Trust's Trustees will
review at least quarterly, a written report of the amounts so expended.
In addition, Authorized Firm will furnish to the Trust or its designees
such information as the Trust or its designees may reasonably request
(including, without limitation, periodic certifications confirming the
rendering of Services as described herein), and will otherwise
cooperate with the Trust and its designees (including, without
limitation, any auditors designated by the Trust), in the preparation
of reports to the Trust's Board of Trustees concerning this Agreement
and the monies paid, reimbursed, payable, or reimbursable pursuant
hereto, the Services provided hereunder and related expenses, and any
other reports or filings that may be required by law.
3. FEES.
3.1 In consideration of the costs and expenses of furnishing the Services
and facilities provided by Authorized Firm hereunder, and subject to
the limitations of applicable law and regulations, Authorized Firm will
be reimbursed and/or compensated (as applicable) quarterly at an annual
rate of up to, but not more than, 0.25% of the average daily net assets
of a Fund attributable to the Fund's shares which are attributable to
or held in the name of Authorized Firm for its Customers. The fee will
not be paid to Authorized Firm with respect to shares of a Fund that
are redeemed or repurchased by the Trust within seven business days of
receipt of confirmation of such sale.
3.2 The fee rate with respect to any Fund or Funds may be prospectively
increased or decreased by the Trust, in its sole discretion, at any
time upon notice to Authorized Firm.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
4.1 By written acceptance of this Agreement, Authorized Firm represents,
warrants, and agrees that, to the extent required by law: (i)
Authorized Firm will provide to Customers a schedule of the services it
will perform pursuant to this Agreement and a schedule of any fees that
Authorized Firm may charge directly to Customers for services it
performs in connection with investments in the Trust on the Customer's
behalf; and (ii) any and all compensation payable to Authorized Firm by
Customers in connection with the investment of their assets in the
Trust will be disclosed by Authorized Firm to Customers and will be
authorized by Customers and will not result in an excessive fee to
Authorized Firm.
4.2 Authorized Firm agrees to comply with all requirements applicable to it
by reason of all applicable laws, including federal and state
securities laws, the rules and regulations of the SEC, including,
without limitation, all applicable requirements of the 1933 Act, the
Securities Exchange Act of 1934, the Investment Advisers Act of 1940,
and the 1940 Act. The Trust has informed Authorized Firm of the states
or other jurisdictions in which the Trust believes the shares of the
Funds are qualified for sale, and Authorized Firm agrees that it will
not purchase a Fund's shares on behalf of a Customer's account in any
jurisdiction in which such shares are not qualified for sale.
Authorized Firm further agrees that it will maintain all records
required by applicable law or otherwise reasonably requested by the
Trust relating to the services provided by it pursuant to the terms of
this Agreement.
4.3 Authorized Firm agrees that under no circumstances shall the Trust be
liable to Authorized Firm or any other person under this Agreement as a
result of any action by the SEC affecting the operation or continuation
of the Plan.
5. EXCULPATION; INDEMNIFICATION.
5.1 The Trust shall not be liable to Authorized Firm and Authorized Firm
shall not be liable to the Trust except for acts or failures to act
which constitute lack of good faith or gross negligence and for
obligations expressly assumed by either party hereunder. Nothing
contained in this Agreement is intended to operate as a waiver by the
Trust or by Authorized Firm of compliance with any applicable law,
rule, or regulation.
5.2 Authorized Firm will indemnify the Trust and hold it harmless from any
claims or assertions relating to the lawfulness of Authorized Firm's
participation in this Agreement and the transactions contemplated
hereby or relating to any activities of any persons or entities
affiliated with Authorized Firm performed in connection with the
discharge of its responsibilities under this Agreement. If any such
claims are asserted, the Trust shall have the right to manage its own
defense, including the selection and engagement of legal counsel of its
choosing, and all costs of such defense shall be borne by Authorized
Firm.
6. EFFECTIVE DATE; TERMINATION.
6.1 This Agreement will become effective with respect to each Fund on the
date of its acceptance by Authorized Firm. Unless sooner terminated
with respect to any Fund, this Agreement will continue with respect to
a Fund until terminated in accordance with its terms, provided that the
continuance of the Plan is specifically approved at least annually in
accordance with the terms of the Plan.
6.2 This Agreement will automatically terminate with respect to a Fund in
the event of its assignment (as such term is defined in the 1940 Act).
This Agreement may be terminated with respect to any Fund by the Trust
or by Authorized Firm, without penalty, upon sixty days' prior written
notice to the other party. This Agreement may also be terminated with
respect to any Fund at any time without penalty by the vote of a
majority of the Independent Trustees (as defined in the Plan) or a
majority of the outstanding shares of a Fund on sixty days' written
notice.
7. GENERAL.
7.1 All notices and other communications to either Authorized Firm or the
Trust will be duly given if mailed, telegraphed or telecopied to the
appropriate address set forth on page 1 hereof, or at such other
address as either party may provide in writing to the other party.
7.2 The Trust may enter into other similar agreements for the provision of
Services with any other person or persons without Authorized Firm's
consent.
7.3 Upon receiving the consent of the Trust, Authorized Firm may, at its
expense, subcontract with any entity or person concerning the provision
of the Services contemplated hereunder; provided, however, that
Authorized Firm shall not be relieved of any of its obligations under
this Agreement by the appointment of such subcontractor and provided
further, that Authorized Firm shall be responsible, to the extent
provided in Article 5 hereof, for all acts of such subcontractor as if
such acts were its own.
7.4 This Agreement supersedes any other agreement between the Trust and
Authorized Firm relating to the Services and relating to any other
matters discussed herein. All covenants, agreements, representations,
and warranties made herein shall be deemed to have been material and
relied on by each party, notwithstanding any investigation made by
either party or on behalf of either party, and shall survive the
execution and delivery of this Agreement. The invalidity or
unenforceability of any term or provision hereof shall not affect the
validity or enforceability of any other term or provision hereof. The
headings in this Agreement are for convenience of reference only and
shall not alter or otherwise affect the meaning hereof. This Agreement
may be executed in any number of counterparts which together shall
constitute one instrument and shall be governed by and construed in
accordance with the laws (other than the conflict of laws rules) of the
State of Ohio and shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
7.5 It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Trust personally, but shall bind
only the trust property of the Trust. The execution and delivery of
this Agreement have been authorized by the Trustees, and this Agreement
has been signed and delivered by an authorized officer of the Trust,
acting as such, and neither such authorization by the Trustees nor such
execution and delivery by such officer shall be deemed to have been
made by any of them individually or to impose any liability on any of
them personally, but shall bind only the trust property of the Trust as
provided in the Trust's Amended and Restated Declaration of Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below.
ProFunds
By:
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Title:
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The foregoing Agreement is hereby accepted:
[Authorized Firm]
By:
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Title:
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Date:
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Schedule A
Date: October 18, 1999
Funds
ProFund VP Bull
ProFund VP UltraBull
ProFund VP UltraOTC
ProFund VP Europe 30
ProFund VP UltraEurope
ProFund VP Small Cap
ProFund VP Bear
ProFund VP UltraBear
ProFund VP UltraShort OTC
ProFund VP UltraShort Europe
ProFund VP Money Market
