Exhibit 23(m)(4)
[PROFUNDS LOGO]
Profunds Distributors, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
FORM OF DISTRIBUTION AND SHAREHOLDER SERVICES AGREEMENT
FOR NASD REGISTERED MEMBERS
Ladies and Gentlemen:
ProFunds (the "Trust") is 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, as amended (the
"1940 Act"). On behalf of each of the ProFund series of the Trust identified in
Schedule A, as amended from time to time ("Funds"), the Trustees of the Trust
have adopted a Distribution and Service Plan (the "Plan") pursuant to Rule 12b-1
under the 1940 Act that, among other things, authorizes ProFunds Distributors,
Inc. (the "Distributor"), as principal underwriter of the shares of the Funds,
to enter into this Agreement with you (the "Authorized Firm"), concerning the
financing of activities and services (collectively, "Services") set forth in
Section 2 on behalf of your clients, members, or customers ("Customers") who may
from time to time be investors, or prospective investors, in the Service Class
shares (the "Shares") of 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 the Shares of 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 OF AUTHORIZED FIRM.
2.1 The Authorized Firm is hereby authorized and may from time to time
undertake to perform, or arrange for the performance of, some or all
of the following non-exclusive list of Services:
. the provision of personal and continuing services to beneficial
owners of Shares;
. receiving, aggregating and processing purchase, exchange and
redemption orders of shareholders;
. providing and maintaining retirement plan records; o
1
. communicating periodically with shareholders concerning
administrative issues relating to their accounts, and answering
questions and handling correspondence from shareholders about
their accounts;
. maintaining account records and providing beneficial owners with
account statements;
. processing dividend payments for Shares held beneficially;
. providing sub-accounting services for Shares held beneficially;
. issuing shareholder reports and transaction confirmations;
. forwarding shareholder communications to beneficial owners of
Shares;
. receiving, tabulating and transmitting proxies executed by
beneficial owners of Shares;
. performing daily investment ("sweep") functions for shareholders;
. providing investment advisory services;
. general account administration activities;
. advertising, preparation of sales literature and other
promotional materials, and related printing and distribution
expenses;
. paying employees or agents of the distributor of the Shares,
other securities broker-dealers, sales personnel, or "associated
persons" of the Trust who engage in or support the provision of
services to investors and/or distribution of the Shares,
including salary, commissions, telephone, travel and related
overhead expenses;
. incurring expenses of training sales personnel regarding the
Funds;
. preparing, printing and distributing prospectuses, statements of
additional information and reports to prospective investors;
. organizing and conducting sales seminars and meetings;
. paying fees to one or more Authorized Firms in respect of the
average daily value of Shares beneficially owned by investors for
whom the Authorized Firm is the dealer of record or holder of
record, or beneficially owned by shareholders with whom the
Authorized Firm has a servicing relationship;
. incurring costs and expenses in implementing and operating the
Plan, including capital or other expenses of associated
equipment, rent, salaries, bonuses, interest, and other overhead
or financing charges; and
. such other similar activities and services as determined by the
Trust's Board of Trustees from time to time.
2.2. The Authorized Firm is specifically authorized to distribute the
Prospectus and Statement of Additional Information and sales material
received from the Distributor. No person is authorized to distribute
any other sales material relating to a Fund without the Distributor's
prior written approval. The Authorized Firm further agrees to deliver,
upon the Distributor's request, copies of any relevant amended
Prospectus and Statement of Additional Information to shareholders of
the Trust to whom it has sold Shares. As agent for its customers, the
Authorized Firm shall not withhold placing customers' orders for any
Shares so as to profit itself as a result of such withholding and
shall not purchase any Shares from the Distributor except for the
purpose of covering purchase orders already received.
Notice will be given to the Authorized Firm of any repurchase or
redemption within ten days of the date on which the tender of Shares
for redemption is delivered to the Distributor or to the Trust.
Neither party to this Agreement shall purchase any Shares
2
from a record holder at a price lower than the net asset value next
computed by or for the Trust. Nothing in this subparagraph shall
prevent the Authorized Firm from selling Shares for the account of a
record holder to the Distributor or the Trust and charging the
investor a fair commission for handling the transaction. Any order
placed by the Authorized Firm for the repurchase of Shares of a Fund
is subject to the timely receipt by the Trust or its designee of all
required documents in good order. If such documents are not received
within a reasonable time after the order is placed, the order is
subject to cancellation, in which case the Authorized Firm agrees to
be responsible for any loss resulting to the Trust or to the
Distributor from such cancellation.
The Distributor will furnish the Authorized Firm, upon request, with
offering prices for the Shares in accordance with the then-current
Prospectuses for the Funds, and the Authorized Firm agrees to quote
such prices subject to confirmation by the Distributor on any Shares
offered to the Authorized Firm for sale. The public offering price
shall equal the net asset value per Share of a Fund plus a front-end
sales load, if applicable. For Funds with a front-end sales load, the
Authorized Firm will receive a discount from the public offering price
as outlined in the current Prospectus. For Funds with a contingent
deferred sales load, the Authorized Firm will receive from the
Distributor, or a paying agent appointed by the Distributor or the
Trust, a commission in the amount shown in Schedule B. The Distributor
reserves the right to waive sales charges. Each price is always
subject to confirmation, and will be based upon the net asset value
next computed after receipt by the Trust or its designee of an order
that is in good form. The Authorized Firm acknowledges that it is its
responsibility to date and time stamp all orders received by it and to
transmit such orders promptly to the Trust or its designee. The
Authorized Firm further acknowledges that any failure to promptly
transmit such orders that causes a purchaser of Shares to be
disadvantaged, based upon the pricing requirements of Rule 22c-1 under
the 1940 Act, shall be its sole responsibility. The Distributor
reserves the right to terminate this Agreement at any time, effective
immediately, if any Shares shall be offered for sale by the Authorized
Firm at less than the then-current offering price determined by or for
the applicable Fund.
With respect to orders that are placed for the purchase of Fund
Shares, unless otherwise agreed, settlement shall be made with the
Trust within three (3) business days after acceptance of the order. If
payment is not so received or made, the Distributor reserves the right
to cancel the sale, or, at its option, to sell the Shares to the Funds
at the then prevailing net asset value. In this event or in the event
that the Authorized Firm cancels the trade for any reason, the
Authorized Firm agrees to be responsible for any loss resulting to the
Funds or to the Distributor from its failure to make payments as
aforesaid. The Authorized Firm shall not be entitled to any gains
generated thereby.
The Authorized Firm shall be responsible for the accuracy, timeliness
and completeness of any orders transmitted by it on behalf of its
customers by wire or telephone for purchases, exchanges or
redemptions, and shall indemnify the Distributor against any claims by
its customers as a result of its failure to properly transmit their
instructions. In addition, the Authorized Firm agrees to guarantee the
signatures of its customers when such guarantee is required by the
Prospectus of a Fund. In that connection, the Authorized Firm agrees
to indemnify and hold harmless all persons, including the Distributor
and the Funds' Transfer Agent, against any and all loss, cost, damage
or expense suffered or incurred in reliance upon such signature
guarantee.
3
2.3. 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
Firm's business, or any personnel employed by the Authorized Firm) as
may be reasonably necessary or beneficial in order to provide such
Services.
2.4. 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 Distributor 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.
2.5. 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, the Distributor 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.
2.6. The Authorized Firm and its employees will, upon request, be available
during normal business hours to consult with the Distributor 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 and describe the purposes for which the
expenditures are made.
In addition, the Authorized Firm will furnish to the Distributor or
its designees such information as the Distributor 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 Distributor 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 or payable
pursuant hereto, as well as any other reports or filings that may be
required by law.
3. FEES.
3.1.1 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 and the rules of
the National Association of Securities Dealers, Inc. ("NASD'), the
Authorized Firm will be compensated and/or reimbursed (as applicable)
4
monthly at an annual rate of up to, but not more than, 1.00% of the
average daily net assets of each Fund attributable to the Fund's
Shares which are attributable to or held in the name of the Authorized
Firm for its Customers. The fee will not be paid to the 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 may be prospectively increased
or decreased by the Distributor, in its sole discretion, at any time
upon notice to the Authorized Firm.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
4.1 The Authorized Firm agrees to comply with all applicable laws,
including federal and state securities laws, the Rules and Regulations
of the Securities and Exchange Commission, and the Conduct Rules of
the NASD. The Authorized Firm has received a list of the states or
other jurisdictions in which Shares of the Funds have been registered
for sale under, or otherwise qualified for sale pursuant to, the
respective securities laws of such states and jurisdictions. The
Authorized Firm agrees that it will not offer a Fund's Shares to
persons in any jurisdiction in which such Shares are not registered or
otherwise qualified for sale.
4.2 The parties acknowledge that they are financial institutions subject
to the USA Patriot Act of 2001 and the Bank Secrecy Act (collectively,
the "AML Acts"), which require among other things, that financial
institutions adopt compliance programs to guard against money
laundering. The parties further acknowledge that they are in
compliance and will continue to comply with the AML Acts and
applicable anti-money laundering rules of self regulatory
organizations, including 3011 of the NASD, in all relevant respects.
4.3 By written acceptance of this Agreement, the Authorized Firm
represents, warrants, and agrees that, to the extent required by law:
(i) the Authorized Firm has all necessary qualifications,
authorizations and/or registrations relating to 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; (ii) 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 (iii) 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.
4.4. 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 Distributor 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
5
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 Distributor relating to the services
provided by it pursuant to the terms of this Agreement.
4.5. The Authorized Firm agrees that under no circumstances shall the
Distributor or 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.
5.1 The Distributor shall not be liable to the Authorized Firm and the
Authorized Firm shall not be liable to the Distributor except for acts
or failures to act which constitute lack of good faith or negligence
and for obligations expressly assumed by either party hereunder.
Nothing contained in this Agreement is intended to operate as a waiver
by the Distributor or by the Authorized Firm of compliance with any
applicable law, rule, or regulation.
5.2 The Authorized Firm will indemnify the Distributor 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 Distributor 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 0000 Xxx)
or upon termination of the Plan. This Agreement may be terminated with
respect to any Fund by the Distributor 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 (as defined in the Plan) or a majority of the outstanding
Shares of a Fund on sixty days' written notice.
6
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 below or at such other address as
either party may provide in writing to the other party:
if to the Distributor: ProFunds Distributors, Inc
0000 Xxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxx 00000-0000
Attn: President
if to the Authorized Firm:
_______________________________
_______________________________
_______________________________
7.2 The Distributor may enter into other similar agreements for the
provision of Services with any other person or persons without the
Authorized Firm's consent.
7.3 Upon receiving the written consent of the Distributor, 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 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 Distributor
and the Authorized Firm relating to the Services described herein 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 Ohio and shall bind and inure to the benefit of the
parties hereto and their respective successors.
7
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below.
ProFunds Distributors, Inc.
By:
-----------------------------
Title:
--------------------------
The foregoing Agreement is hereby accepted:
----------------------------------------
Authorized Firm
By:
---------------------------------
Title:
---------------------------------
Date:
---------------------------------
8
[PROFUNDS LOGO]
Profunds Distributors, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
FORM OF SHAREHOLDER SERVICES AGREEMENT
FOR NON-NASD MEMBERS
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 Service Shares
("Shares") of each of the investment portfolios of the Trust (individually, a
"Fund" and collectively, the "Funds", identified in Exhibit A, as amended from
time to time), have adopted a Distribution and Service Plan (the "Plan")
pursuant to Rule 12b-1 under the 1940 Act for the Shares which, among other
things, authorizes ProFunds Distributors, Inc. (the "Distributor"), as principal
underwriter of the Shares of the Funds, 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
transmitting proxies executed by beneficial owners; 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
Firm'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 Distributor or 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 or Distributor may subsequently
prepare.
2.5 The Authorized Firm and its employees will, upon request, be available
during normal business hours to consult with the Distributor, 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 Distributor, 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 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.
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 monthly at an annual rate of up to but not
more than 0.25% 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. However, no such
fee shall be due to the Authorized Firm until the Distributor receives
such fee payments from the applicable Fund. In addition, the fee will
not be paid to the 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 may be prospectively increased
or decreased by the Distributor , 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. Upon request, the Distributor will furnish the
Authorized Firm with a list of the states or other jurisdictions in
which the Distributor 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 Distributor
relating to the services provided by it pursuant to the terms of this
Agreement.
4.3 The Authorized Firm is either a financial institution subject to the
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 ("U.S.A.
Patriot Act") and the Bank Secrecy Act (collectively, the "AML Acts")
or it shall perform the services under this Agreement as if it were
subject to the AML Acts, which require among other things, that
financial institutions adopt compliance programs to guard against
money laundering, and it has adopted and implemented and shall
continue to administer a program in compliance with the AML Acts and
applicable anti-money laundering rules of self regulatory
organizations, such as NASD Rule 3011, in all relevant respects.
4.4 The Authorized Firm agrees that under no circumstances shall the
Distributor 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.
5.1 The Distributor shall not be liable to the Authorized Firm and the
Authorized Firm shall not be liable to the Distributor 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 Distributor or by the Authorized Firm of compliance
with any applicable law, rule, or regulation.
5.2 The Authorized Firm will indemnify the Distributor 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 Distributor 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 0000 Xxx)
or upon the termination of the Distributor's distribution agreement
with the Trust. 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 Distributor 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 Distributor 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 Distributor, 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 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 Distributor
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
Ohio and shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below.
ProFunds Distributors, Inc.
By:
-----------------------------
Title:
--------------------------
The foregoing Agreement is hereby accepted:
-------------------------------------------
Authorized Firm
By:
Name:
Title:
Date:
--------------------------------------
