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Exhibit 9(f)
SHAREHOLDER SERVICES AGREEMENT
[Name]
[Address]
[City, State, Zip]
Ladies and Gentlemen:
The Board of Trustees of ProFunds (the "Trust"), an open-end
management investment company organized as a Delaware business trust and
registered with the Securities and Exchange Commission (the "SEC") under the
Investment Company Act of 1940 (the "1940 Act"), on behalf of the holders of
Adviser Shares ("Shares") of each of the investment portfolios of the Trust
(individually, a "Fund" and collectively, the "Funds"), have adopted a
Shareholder Services Plan for the Shares (the "Plan") which, among other
things, authorizes the Trust to enter into this Agreement with you (the
"Authorized Firm"), concerning the provision of service activities to your
clients, members, or customers ("Customers") who may from time to time
beneficially own such Funds' Shares. 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 the Shares of each Fund
(individually, a "Prospectus" and collectively, the "Prospectuses") 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 The Authorized Firm is hereby authorized and may from time to time
undertake to perform support services to Customers in connection with
investments in the Shares of a Fund, which services may include, but
are not limited to: the provision of personal, continuing services to
investors in each Fund; receiving, aggregating and processing purchase
and redemption orders; providing and maintaining retirement plan
records; communicating periodically with shareholders and answering
questions and handling correspondence from shareholders about their
accounts; acting as the sole shareholder of record and nominee for
shareholders; maintaining account records and providing beneficial
owners with account statements; processing dividend payments; issuing
shareholder reports and transaction confirmations; providing
subaccounting services for Fund shares held beneficially; forwarding
shareholder communications to beneficial owners; receiving, tabulating
and
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transmitting proxies executed by beneficial owners; performing daily
investment ("Sweep") functions for Shareholders; general account
administration activities; and providing such other similar services as
the Trust may reasonably request to the extent the Authorized Firm is
permitted to do so under applicable statutes, rules, or regulations.
Overhead and other expenses of the Authorized Firm related to its
"service activities," including telephone and other communications
expenses, may be included in the information regarding amounts expended
for such activities.
2.2 The 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 the Authorized
Firms's business, or any personnel employed by the Authorized Firm) as
may be reasonably necessary or beneficial in order to provide such
support services with respect to a Fund's Shares.
2.3 The minimum dollar purchase of a Fund's Shares (including Shares being
acquired by Customers pursuant to any exchange privileges described in
the Fund's Prospectus) shall be the applicable minimum amount set
forth in the Prospectus of such Fund, and no order for less than such
amount shall be accepted by the Authorized Firm. The procedures
relating to the handling of orders shall be subject to instructions
which the Trust shall forward from time to time to the 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 the Authorized
Firm for the account of any Customer or Customers.
2.4 In no transaction shall the Authorized Firm act as dealer for its own
account; the 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, the 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.
2.5 The 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 the Authorized Firm's
responsibilities under this Agreement. Any person authorized to
direct the disposition of monies paid or payable pursuant to Section 3
of this Agreement will provide to the Trust's Board of Trustees, and
the Trust's Trustees will review at least quarterly, a written report
of the amounts so expended.
In addition, the 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 support services with
respect to Shares 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
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Board of Trustees concerning this Agreement and the monies paid or
payable pursuant hereto, as well as any other reports or filings that
may be required by law.
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3. FEES.
3.1 In consideration of the costs and expenses of furnishing the services
and facilities provided by the Authorized Firm hereunder, and subject
to the limitations of applicable law and regulations, the Authorized
Firm will be compensated quarterly at an annual rate of up to but not
more than 1.00% of the average daily net assets of the Fund
attributable to the Fund's Shares which are attributable to or held in
the name of the Authorized Firm for its Customers.
3.2 The fee rate with respect to any Fund may be prospectively increased
or decreased by the Trust, in its sole discretion, at any time upon
notice to the Authorized Firm.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
4.1 By written acceptance of this Agreement, the Authorized Firm
represents, warrants, and agrees that: (i) the 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 the
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 the Authorized
Firm by Customers in connection with the investment of their assets in
the Trust will be disclosed by the Authorized Firm to Customers and
will be authorized by Customers and will not result in an excessive
fee to the Authorized Firm.
4.2 The 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 furnished the Authorized Firm with a
list of the states or other jurisdictions in which the Trust believes
the Shares of the Funds are qualified for sale, and the 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. The 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 The Authorized Firm agrees that under no circumstances shall the Trust
be liable to the 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.
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5.1 The Trust shall not be liable to the Authorized Firm and the
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 the Authorized Firm of compliance with
any applicable law, rule, or regulation.
5.2 The Authorized Firm will indemnify the Trust and hold it harmless from
any claims or assertions relating to the lawfulness of the Authorized
Firm's participation in this Agreement and the transactions
contemplated hereby or relating to any activities of any persons or
entities affiliated with the 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 the 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 the 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 the 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 Plan Trustees 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 the 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
Shareholder support services with any other person or persons without
the Authorized Firm's consent.
7.3 Upon receiving the consent of the Trust, the Authorized Firm may, at
its expense, subcontract with any entity or person concerning the
provision of the services contemplated hereunder; provided, however,
that the Authorized Firm shall not be relieved of any of its
obligations under this Agreement by the appointment of such
subcontractor and provided
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further, that the 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
the Authorized Firm relating to support services in connection with a
Fund's Shares 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 California 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 Declaration of Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below.
ProFunds
By: ______________
Title:____________
The foregoing Agreement is hereby accepted:
[Authorized Firm]
By: _______________________________
Title: ____________________________
Date: _____________________________
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