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 ________________, 1999,
between ProFunds, a Delaware business trust (the "Trust") and ProFunds 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
(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 following services to each of
the Funds:
i) Provide information to and coordinate the Trust's
relationship with registered investment advisors and other
securities professionals who have discretionary authority
over Trust shareholder accounts, assist in facilitating
instructions received by such persons relating to Trust
business and furnish facilities and personnel necessary to
perform such activities.
ii) Assist as appropriate and coordinate with the Trust's
Administrator and other service providers in administering
the affairs of the Trust and perform services on the
Trust's behalf.
iii) Pay the salaries and expenses of all officers and
Trustees of the Trust who are employees of the Manager.
iv) Perform such other services incident to the Trust's
business as parties may from time to time.
(d) 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, set forth in
paragraph 1(c), above, with respect to the Money Market
ProFund, the Manager shall perform the following services:
i) Monitor the performance of the Portfolio.
ii) Coordinate the relationship of the Money Market
ProFund with the Portfolio.
iii) Communicate with the Board of Trustees of the Money
Market ProFund regarding the performance of the Portfolio
and the Money Market ProFund.
iv) Furnish reports regarding the Portfolio as reasonably
requested from time-to-time by the Trust's Board of
Trustees.
v) Perform such other necessary and desirable services
regarding the "Master Feeder" structure of the Money
Market ProFund as theTrustees may reasonably request form
time to time.
(e) In carrying out its responsibilities under this
Agreement, the Manager shall at all times act in accordance
with the investment
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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.
(f) 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
a) ALLOCATION OF EXPENSES
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.
b) COMPENSATION
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
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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
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
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.
5. DURATION AND TERMINATION OF THIS AGREEMENT
(a) DURATION. This Agreement shall become effective on the
date 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
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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 effective with respect to a Fund upon approval of the
Manager and the Trust.
(c) TERMINATION. This Agreement may be terminated with
respect to 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 authorization 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 immediately terminate in the event of its
assignment (as defined in the 1940 Act).
(e) APPROVAL, AMENDMENT OR TERMINATION BY INDIVIDUAL FUND.
Any 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.
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.
7. MISCELLANEOUS
(a) NOTICE. Any notice under this Agreement shall be in
writing, addressed and delivered or mailed, postage prepaid,
to the other party at
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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 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
accordance with and governed by the laws of Maryland.
PROFUNDS ADVISORS LLC, A MARYLAND
LIMITED LIABILITY COMPANY
ATTEST: __________________________________ By:________________________________
________________________________
Date: ____________________________
PROFUNDS, A DELAWARE BUSINESS TRUST
ATTEST: __________________________________ By:________________________________
________________________________
Date: ____________________________
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