EXHIBIT 23(h)(5)(iv)
AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
AGREEMENT, made this 28th day of October, 1997, and amended as of February
18, 1998, and amended and restated as of February 23, 1999, and amended and
restated as of November 14, 2001, between ProFunds, a Delaware business trust
(the "Trust") and ProFund Advisors LLC, a Maryland limited liability company
(the "Manager").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust is authorized to issue shares of beneficial interest
("shares") in separate series with each series representing interests in a
separate portfolio of securities and other assets; and
WHEREAS, the Trust offers shares in the series set forth on Schedule A,
attached hereto, as such schedule may be amended from time to time (each
referred to hereinafter as a "Fund" and collectively as the "Funds"); and
WHEREAS, the Trust desires to engage the Manager to provide certain
services to the Trust on behalf of the Funds; and
WHEREAS, the Manager is willing, in accordance with the terms and
conditions hereof to provide such services to the Trust on behalf of the Funds;
NOW THEREFORE, in consideration of the mutual agreements set forth herein
and intending to be legally bound hereby, the parties agree as follows:
1. APPOINTMENT AND DUTIES OF MANAGER
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(a) The Trust hereby employs the Manager to act as manager of the
Funds and to perform the services set forth in this Agreement, subject
to the supervision of the Board of Trustees of the Trust, for the
period and on the terms set forth in this Agreement. The Manager
hereby accepts such employment, and undertakes to pay the salaries and
expense of all personnel of the Manager who perform services relating
to the services it performs hereunder. The Manager shall for all
purposes herein be deemed to be an independent contractor and shall,
except as otherwise expressly provided or authorized, have no
authority to act for or represent the Trust in any way or otherwise be
deemed an agent of the Trust.
(b) Notwithstanding the foregoing, the Manager shall not be
deemed to have assumed any duties hereunder with respect to, and shall
not, by the execution of this Agreement be responsible for, the
management of the Funds' assets or the rendering of investment advice
and supervision with respect thereto, or the distribution of shares of
the Funds, nor shall the Manager be deemed to have assumed any
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responsibility hereunder with respect to functions specifically
assumed by any administrator, transfer agent, custodian or shareholder
servicing agent of the Trust or the Funds.
(c) Without limiting the generality of the foregoing, the Manager
shall provide the services set forth in Schedule B hereto.
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(d) In carrying out its responsibilities under this Agreement,
the Manager shall at all times act in accordance with the investment
objectives, policies and restrictions applicable to the Funds as set
forth in the Trust's then-current registration statement, applicable
provisions of the 1940 Act and the rules and regulations promulgated
thereunder and other applicable federal securities laws.
(e) The Manager shall render regular reports to the Trust as
requested by the Board of Trustees, and will, at the reasonable
request of the Board, attend meetings of the Board or its validly
constituted committees, and will make its officers and employees
available to meet with the officers and employees of the Trust to
discuss its duties hereunder.
2. EXPENSES AND COMPENSATION
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a) Allocation of Expenses
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The Manager shall, at its expense, employ or associate with
itself such persons as it believes appropriate to assist in performing
its obligations under this Agreement and provide all services,
equipment, facilities and personnel necessary to perform its
obligations under this Agreement.
The Trust shall be responsible for all its expenses and
liabilities, including compensation of its Trustees who are not
affiliated with the Administrator or the Manager or any of their
affiliates; taxes and governmental fees; interest charges; fees and
expenses of the Trust's independent accountants and legal counsel;
trade association membership dues; fees and expenses of any custodian
(including for keeping books and accounts and calculating the net
asset value of shares of each Fund, transfer agent, registrar and
dividend disbursing agent of the Trust; expenses of issuing, selling,
redeeming, registering and qualifying for sale the Trust's shares of
beneficial interest; expenses of preparing and printing share
certificates (if any), prospectuses, shareholders' reports, notices,
proxy statements and reports to regulatory agencies; the cost of
office supplies; travel expenses of all officers, trustees and
employees; insurance premiums; brokerage and other expenses of
executing portfolio transactions; expenses of shareholders' meetings;
organizational expenses; and extraordinary expenses.
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b) Compensation
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For its services under this Agreement, Manager shall be entitled
to receive a fee at the annual rate of .15% of the average daily net
asset value of each Fund except the Money Market ProFund and .35% of
the average daily net asset value of the Money Market ProFund, payable
monthly. For the purpose of accruing compensation, the net asset value
of the Funds will be determined in the manner provided in the
then-current Prospectus of the Trust.
3. LIABILITY OF MANAGER
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Neither the Manager nor its officers, directors, employees,
agents or controlling person ("Associated Person") of the Manager
shall be liable for any error of judgment or mistake of law or for any
loss suffered by the Trust in connection with the matters to which
this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on the part of Manager or
such Associated Persons in the performance of their duties or from
reckless disregard by them of their duties under this Agreement.
4. LIABILITY OF THE TRUST AND FUNDS
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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 as provided in the
Declaration of Trust. The execution and delivery of this Agreement
have been authorized by the Trustees, and it has been signed by an
officer of the Trust, acting as such, and neither such authorization
by such 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 its Declaration of Trust.
With respect to any obligation of the Trust on behalf of any Fund
arising hereunder, the Manager shall look for payment or satisfaction
of such obligations solely to the assets and property of the Fund to
which such obligation relates as though the Trust had separately
contracted with the Manager by separate written instrument with
respect to each Fund.
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5. DURATION AND TERMINATION OF THIS AGREEMENT
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(a) Duration. This Agreement shall become effective on the date
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hereof. Unless terminated as herein provided, this Agreement shall
remain in full force and effect for two years from the date hereof.
Subsequent to such initial period of effectiveness, this Agreement
shall continue in full force and effect for successive periods of one
year thereafter with respect to each Fund so long as such continuance
with respect to such Fund is approved at least annually by the
Trustees of the Trust by the vote of a majority of the Trustees of the
Trust who are not parties to this Agreement or "interested persons"
(as defined in the 0000 Xxx) of any such party.
(b) Amendment. Any amendment to this Agreement shall become
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effective with respect to a Fund upon approval of the Manager and the
Trust.
(c) Termination. This Agreement may be terminated with respect to
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any Fund at any time, without payment of any penalty, by vote of the
Trustees or by vote of a majority of the outstanding voting securities
(as defined in the 0000 Xxx) of that Fund, or by the Manager, in each
case of sixty (60) days' prior written notice to the other party. Any
termination of this Agreement will be without prejudice to the
completion of transactions already initiated by the Manager on behalf
of the Trust at the time of such termination. The Manager shall take
all steps reasonably necessary after such termination to complete any
such transactions and is hereby authorized to take such steps. In
addition, this Agreement may be terminated with respect to one or more
Funds without affecting the rights, duties or obligations of any of
the other Funds.
(d) Automatic Termination. This Agreement shall automatically and
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immediately terminate in the event of its assignment (as defined in
the 1940 Act).
(e) Approval, Amendment or Termination by Individual Fund. Any
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approval, amendment or termination of this Agreement by any Fund shall
be effective to continue, amend or terminate this Agreement with
respect to any such Fund notwithstanding that such action has not been
approved by any other Fund.
6. SERVICES NOT EXCLUSIVE.
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The services of the Manager to the Trust hereunder are not to be
deemed exclusive, and the Manager shall be free to render similar
services to others so long as its services hereunder are not impaired
thereby.
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7. MISCELLANEOUS
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(a) Notice. Any notice under this Agreement shall be in writing,
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addressed and delivered or mailed, postage prepaid, to the other party
at such address as such other party may designate in writing for the
receipt of such notices.
(b) Severability. If any provision of this Agreement shall be
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held or made invalid by a court decision, statue, rule or otherwise,
the remainder shall not be thereby affected.
(c) Applicable Law. This Agreement shall be construed in
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accordance with and governed by the laws of Maryland.
ProFund Advisors LLC, a Maryland limited
liability company
ATTEST: By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Chairman and Chief Executive Officer
Date: November 14, 2001
ProFunds, a Delaware business trust
ATTEST: By: /s/ Xxxxxxx X. Xxxxx
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Date: November 14, 2001
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FORM OF SCHEDULE A
TO THE AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
BETWEEN PROFUNDS AND PROFUND ADVISORS LLC
AS OF MAY 1, 2002
Bull ProFund ProFund VP Bull
Mid-Cap ProFund ProFund VP Mid-Cap
Small-Cap ProFund ProFund VP Small-Cap
OTC ProFund ProFund VP OTC
Europe 30 ProFund ProFund VP Japan
Mid-Cap Value ProFund ProFund VP Europe 30
Mid-Cap Growth ProFund ProFund VP Mid-Cap Value
Small-Cap Value ProFund ProFund VP Mid-Cap Growth
Small-Cap Growth ProFund ProFund VP Small-Cap Value
UltraBull ProFund ProFund VP Small-Cap Growth
UltraMid-Cap ProFund ProFund VP Bull Plus
UltraSmall-Cap ProFund ProFund VP UltraBull
UltraOTC ProFund ProFund VP UltraMid-Cap
UltraJapan ProFund ProFund VP UltraSmall-Cap
Bear ProFund ProFund VP UltraEurope
UltraBear ProFund ProFund VP UltraOTC
UltraShort OTC ProFund ProFund VP Bear
Money Market ProFund ProFund VP UltraBear
Airlines UltraSector ProFund ProFund VP UltraShort OTC
Banks UltraSector ProFund ProFund VP Airlines
Basic Materials UltraSector ProFund ProFund XX Xxxxx
Biotechnology UltraSector ProFund ProFund VP Basic Materials
Consumer Cyclical UltraSector ProFund ProFund VP Biotechnology
Consumer Non-Cyclical UltraSector ProFund ProFund VP Consumer Cyclical
Energy UltraSector ProFund ProFund VP Consumer Non-Cyclical
Leisure Goods & Services UltraSector ProFund ProFund VP Energy
Financial UltraSector ProFund ProFund VP Internet
Healthcare UltraSector ProFund ProFund VP Leisure Goods & Services
Industrial UltraSector ProFund ProFund VP Financial
Internet UltraSector ProFund ProFund VP Healthcare
Oil Drilling Equipment & Services UltraSector ProFund VP Industrial
ProFund ProFund VP Oil Drilling Equipment &
Pharmaceuticals UltraSector ProFund Services
Precious Metals UltraSector ProFund ProFund VP Pharmaceuticals
Real Estate UltraSector ProFund ProFund VP Precious Metals
Semiconductor UltraSector ProFund ProFund VP Real Estate
Technology UltraSector ProFund ProFund VP Semiconductor
Telecommunications UltraSector ProFund ProFund VP Technology
Utilities UltraSector ProFund and ProFund VP Telecommunications
Wireless Communications UltraSector ProFund ProFund VP Utilities
Asia 30 ProFund ProFund VP Wireless Communications and
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UltraDow 30 ProFund ProFund VP Money Market
U.S. Government Plus ProFund ProFund VP Asia 30
Short OTC ProFund ProFund VP U.S. Government Plus
Short Small-Cap ProFund ProFund VP UltraDow 30
Rising Rates Opportunity ProFund ProFund VP Short OTC
ProFund VP Short Small-Cap
ProFund VP Rising Rates Opportunity
PROFUND ADVISORS LLC PROFUNDS
a Maryland limited liability company a Delaware business trust
By: By:
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Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Chairman and Chief Executive Officer Trustee and Chairman
Date: May 1, 2002 Date: May 1, 2002
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SCHEDULE B
MANAGEMENT SERVICES
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Manager shall provide the following management services:
1. Manager shall provide recommendations to the Trust's Board of Trustees (the
"Board") with respect to the selection of third-party service providers
("Service Providers"), and, at the direction of the Board, shall
thereafter:
(a) Negotiate, coordinate and implement the Trust's contractual
obligations with such Service Providers;
(b) Monitor, oversee and review the performance of such Service Providers
to ensure adherence to applicable contractual obligations; and
(c) Prepare reports and presentations to the Board with respect to such
Service Providers as requested or as deemed appropriate.
2. In recognition of the fact that the Trust's Transfer Agent interfaces
solely with direct shareholders of the Trust, and that the Transfer Agent
has no obligation to provide information and/or services to financial
intermediaries (including registered investment advisors and other
securities professionals, collectively "Financial Intermediaries") that
have discretionary authority over Trust shareholder accounts, Manager
shall:
(a) Provide telephone support to Financial Intermediaries from 8 a.m. to 9
p.m. ET;
(b) Answer investment related questions received from Financial
Intermediaries;
(c) Process and verify telephone transactions received from Financial
Intermediaries;
(d) Research and resolve Financial Intermediary account documentation
issues;
(e) Handle correspondence received from Financial Intermediaries;
(f) Mail literature requests to prospective and existing Financial
Intermediaries;
(g) Assist Financial Intermediaries with tax form questions;
(h) Assist Financial Intermediaries with establishing shareholder
accounts;
(i) Advise Financial Intermediaries of procedures for changing account
options;
(j) Provide phone support for Financial Intermediary marketing campaigns;
(k) Provide, negotiate and implement omnibus fee agreements and
shareholder servicing agreements with Financial Intermediaries;
(l) Provide voice mail for weekend and after business hours; and
(m) Engage in any other activities with respect to Financial
Intermediaries as the parties may agree from time to time.
3. It is intended that the assets of the Money Market ProFund will be invested
in a portfolio (the "Portfolio") having substantially the same investment
objective, policies and restrictions as the Money Market ProFund. In
addition to its duties hereunder, with respect to the Money Market ProFund,
the Manager shall perform the following services:
(a) Monitor the performance of the Portfolio.
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(b) Coordinate the relationship of the Money Market ProFund with the
Portfolio.
(c) Communicate with the Board of Trustees of the Money Market
ProFund regarding the performance of the Portfolio and the Money
Market ProFund.
(d) Furnish reports regarding the Portfolio as reasonably requested
from time-to-time by the Trust's Board of Trustees.
(e) Perform such other necessary and desirable services regarding the
"Master Feeder" structure of the Money Market ProFund as the
Trustees may reasonably request from time to time.
4. Make available employees of Manager to serve as officers and Trustees of
the Trust, and pay the salaries and expenses of all such officers and
Trustees.
5. Perform such other services incident to the Trust's business as the parties
may agree from time to time.
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