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As filed with the Securities and Exchange Commission on August 15, 2008

Registration No. 333—146801

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

PRE-EFFECTIVE AMENDMENT NO. 2

TO

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

PROSHARES TRUST II

(Exact name of registrant as specified in its charter)

 

Delaware   6799   87-6284802
(State of Organization)  

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification Number)

 

 

Michael L. Sapir

c/o ProShare Capital Management LLC

7501 Wisconsin Avenue

Suite 1000

Bethesda, Maryland 20814

(240) 497-6400

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

Stuart M. Strauss, Esq.

Anthony A. Lopez III, Esq.

c/o Clifford Chance US LLP

31 West 52 nd Street

New York, New York 10019

and

Barry I. Pershkow, Esq.

c/o ProShare Capital Management LLC

7501 Wisconsin Avenue

Suite 1000

Bethesda, MD 20814

 

 

Approximate date of commencement of proposed sale to the public: As promptly as practicable after the effective date of this Registration Statement.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.     x

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

If this form is a post–effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

If this form is a post–effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one.)

 

Large accelerated filer       ¨      Accelerated filer    ¨
Non-accelerated filer       x      Smaller reporting company    ¨
(Do not check if a smaller reporting company)   

CALCULATION OF REGISTRATION FEE

 

 

 

Title of Securities to be Registered  

Proposed Maximum

Aggregate Offering

Price 1

 

Amount of

Registration Fee 2

Ultra DJ-AIG Commodity ProShares Common Units of Beneficial Interest

  $500,000,000   $19,650.00

UltraShort DJ-AIG Commodity ProShares Common Units of Beneficial Interest

  $2,000,000,000   $78,600.00

Ultra DJ-AIG Agriculture ProShares Common Units of Beneficial Interest

  $1,000,000,000   $39,300.00

UltraShort DJ-AIG Agriculture ProShares Common Units of Beneficial Interest

  $1,000,000,000   $39,300.00

Ultra DJ-AIG Crude Oil ProShares Common Units of Beneficial Interest

  $1,000,000,000   $39,300.00

UltraShort DJ-AIG Crude Oil ProShares Common Units of Beneficial Interest

  $2,000,000,000   $78,600.00

Ultra Gold ProShares Common Units of Beneficial Interest

  $2,000,000,000   $78,600.00

UltraShort Gold ProShares Common Units of Beneficial Interest

  $2,000,000,000   $78,600.00

Ultra Silver ProShares Common Units of Beneficial Interest

  $500,000,000   $19,650.00

UltraShort Silver ProShares Common Units of Beneficial Interest

  $1,000,000,000   $39,300.00

Ultra Euro ProShares Common Units of Beneficial Interest

  $500,000,000   $19,650.00

UltraShort Euro ProShares Common Units of Beneficial Interest

  $500,000,000   $19,650.00

Ultra Yen ProShares Common Units of Beneficial Interest

  $500,000,000   $19,650.00

UltraShort Yen ProShares Common Units of Beneficial Interest

  $500,000,000   $19,650.00

TOTAL

  $15,000,000,000   $586,611.45

 

 

1

The proposed maximum aggregate offering price has been calculated assuming that Shares relating to commodities and commodity indexes are sold at a price of $70.00 per Share and Shares relating to currencies are sold at a price of $50.00 per Share.

2

The total amount reflects previous registration fees paid by the Registrant of $1,547.28 on October 18, 2007 and $907.83 on July 9, 2008. The amount of the registration fee of the Shares is calculated in reliance upon Rule 457(o) under the Securities Act and using the proposed maximum aggregate offering price as described above.

 

 

The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


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The information in this Prospectus is not complete and may be changed. The Trust may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This Prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

 

Subject to completion, dated August 15, 2008

LOGO

PROSHARES TRUST II

 

 

 

Title of Securities to be Registered

   Proposed Maximum Aggregate Offering
Price Per Fund

Ultra DJ-AIG Commodity ProShares

   $ 500,000,000

UltraShort DJ-AIG Commodity ProShares

   $ 2,000,000,000

Ultra DJ-AIG Agriculture ProShares

   $ 1,000,000,000

UltraShort DJ-AIG Agriculture ProShares

   $ 1,000,000,000

Ultra DJ-AIG Crude Oil ProShares

   $ 1,000,000,000

UltraShort DJ-AIG Crude Oil ProShares

   $ 2,000,000,000

Ultra Gold ProShares

   $ 2,000,000,000

UltraShort Gold ProShares

   $ 2,000,000,000

Ultra Silver ProShares

   $ 500,000,000

UltraShort Silver ProShares

   $ 1,000,000,000

Ultra Euro ProShares

   $ 500,000,000

UltraShort Euro ProShares

   $ 500,000,000

Ultra Yen ProShares

   $ 500,000,000

UltraShort Yen ProShares

   $ 500,000,000

ProShares Trust II (the “Trust”) is currently organized in fourteen separate series as a Delaware statutory trust. Each series of the Trust (each, a “Fund” and collectively, the “Funds”) will issue common units of beneficial interest (“Shares”), which represent units of fractional undivided beneficial interest in and ownership of only that Fund. Each Fund’s Shares are being offered separately.

On July 2, 2008, the Commodities & Currencies Trust changed its name to ProShares Trust II.

The Shares of each Fund initially will be listed on the American Stock Exchange (the “AMEX”) as set forth in this prospectus.

Each “Ultra” Fund will seek daily investment results (before fees and expenses) that correspond to twice (200%) the daily performance of its corresponding benchmark. Each “UltraShort” Fund will seek daily investment results (before fees and expenses) that correspond to twice (200%) the inverse (opposite) of the daily performance of its corresponding benchmark. Each Fund will generally invest in Financial Instruments ( i.e. , commodity-based or currency-based instruments whose value is derived from the value of an underlying asset, rate or index) as a substitute for investing directly in a commodity or currency in order to gain exposure to the commodity index, commodity or currency. Financial Instruments also are used to produce economically “leveraged” or “inverse” investment results and include futures contracts and options on futures contracts, swap agreements, forward contracts and other commodity-based or currency-based options contracts.

The Funds do not seek to achieve their stated investment objective over a period of time greater than one day because mathematical compounding prevents the Funds from achieving such results.

Each Fund will continuously offer and redeem its Shares in blocks of 50,000 Shares (“Creation Units”) at net asset value (“NAV”) per Share. Only Authorized Participants may purchase and redeem Shares from a Fund and then only in Creation Units. An Authorized Participant is an entity that has entered into an Authorized Participation Agreement with one or more of the Funds. The Authorized Participation Agreement and related Authorized Participant Handbook set forth the terms and conditions under which an Authorized Participant may purchase or redeem a Creation Unit. Authorized Participants may offer to the public, from time to time, Shares from any Creation Unit they create. Shares offered to the public by Authorized Participants will be offered at a per Share offering price that will vary depending on, among other factors, the trading price of the Shares of each Fund, the NAV per Share and the supply of and demand for the Shares at the time of the offer. Shares that were initially part of the same Creation Unit but which are offered by Authorized Participants to the public at different times may have different offering prices. Authorized Participants will not receive from any Fund, ProShare Capital Management LLC, (the “Sponsor”), or any of their affiliates, any fee or other compensation in connection with their sale of Shares to the public.

INVESTING IN THE SHARES INVOLVES SIGNIFICANT RISKS. PLEASE REFER TO “ RISK FACTORS ” BEGINNING ON PAGE 15.

 

   

Financial Instrument trading prices are volatile and even a small movement in market prices could cause large losses.

 

   

The success of each Fund’s trading program will depend upon the skill of the Sponsor and its trading principals.

 

   

Investors could lose all or substantially all of their investment.

 

   

Investors will pay fees in connection with their investment in Shares including a fee of 0.95% per annum of a Fund’s average daily NAV.

An Authorized Participant may receive commissions or fees from investors who purchase Shares through their commission or fee-based brokerage accounts.

These securities have not been approved or disapproved by the United States Securities and Exchange Commission (the “SEC”) or any state securities commission nor has the SEC or any state securities commission passed upon the accuracy or adequacy of this Prospectus. Any representation to the contrary is a criminal offense. None of the Funds is a mutual fund or any other type of investment company within the meaning of the Investment Company Act of 1940, as amended (the “1940 Act”), and none is subject to regulation thereunder.

THE UNITED STATES COMMODITY FUTURES TRADING COMMISSION (“CFTC”) HAS NOT PASSED UPON THE MERITS OF PARTICIPATING IN THESE POOLS NOR HAS THE CFTC PASSED UPON THE ADEQUACY OR ACCURACY OF THIS DISCLOSURE DOCUMENT.


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The Shares are neither interests in nor obligations of any of the Sponsor, Wilmington Trust Company (the “Trustee”), or any of their respective affiliates. The Shares are not insured by the Federal Deposit Insurance Corporation or any other governmental agency.

It is anticipated that the initial Authorized Participant for the Ultra DJ-AIG Commodity ProShares, the UltraShort DJ-AIG Commodity ProShares, the Ultra DJ-AIG Agriculture ProShares, the UltraShort DJ-AIG Agriculture ProShares, the Ultra DJ-AIG Crude Oil ProShares, the UltraShort DJ-AIG Crude Oil ProShares, the Ultra Gold ProShares, the UltraShort Gold ProShares, the Ultra Silver ProShares and the UltraShort Silver ProShares will purchase two or more Creation Units at a price of $70.00 per Share, equal to $3,500,000 per Creation Unit.

It is anticipated that the initial Authorized Participant for the Ultra Euro ProShares, the UltraShort Euro ProShares, the Ultra Yen ProShares and the UltraShort Yen ProShares will purchase two or more Creation Units at a price of $50.00 per Share, equal to $2,500,000 per Creation Unit.

COMMODITY FUTURES TRADING COMMISSION

RISK DISCLOSURE STATEMENT

INVESTORS SHOULD CAREFULLY CONSIDER WHETHER THEIR FINANCIAL CONDITION PERMITS THEM TO PARTICIPATE IN A COMMODITY POOL. IN SO DOING, INVESTORS SHOULD BE AWARE THAT FUTURES TRADING CAN QUICKLY LEAD TO LARGE LOSSES AS WELL AS GAINS. SUCH TRADING LOSSES CAN SHARPLY REDUCE THE NAV OF THE POOL AND CONSEQUENTLY THE VALUE OF INVESTORS’ INTEREST IN THE POOL. IN ADDITION, RESTRICTIONS ON REDEMPTIONS MAY AFFECT INVESTORS’ ABILITY TO WITHDRAW THEIR PARTICIPATION IN THE POOL.

FURTHER, COMMODITY POOLS MAY BE SUBJECT TO SUBSTANTIAL CHARGES FOR MANAGEMENT AND ADVISORY AND BROKERAGE FEES. IT MAY BE NECESSARY FOR THOSE POOLS THAT ARE SUBJECT TO THESE CHARGES TO MAKE SUBSTANTIAL TRADING PROFITS TO AVOID DEPLETION OR EXHAUSTION OF THEIR ASSETS. “CHARGES—BREAKEVEN TABLE” ON PAGE 48 OF THIS DISCLOSURE DOCUMENT CONTAINS A COMPLETE DESCRIPTION OF EACH EXPENSE TO BE CHARGED TO THESE POOLS AND A STATEMENT OF THE PERCENTAGE RETURN NECESSARY TO BREAKEVEN, THAT IS, TO RECOVER THE AMOUNT OF INVESTORS’ INITIAL INVESTMENT.

THIS BRIEF STATEMENT CANNOT DISCLOSE ALL THE RISKS AND OTHER FACTORS NECESSARY TO EVALUATE INVESTORS’ PARTICIPATION IN ANY OF THESE COMMODITY POOLS. THEREFORE, BEFORE INVESTORS DECIDE TO PARTICIPATE IN ANY OF THESE COMMODITY POOLS, INVESTORS SHOULD CAREFULLY STUDY THIS DISCLOSURE DOCUMENT, INCLUDING A DESCRIPTION OF THE PRINCIPAL RISK FACTORS OF THIS INVESTMENT, AT PAGES 13 THROUGH 27.

INVESTORS SHOULD ALSO BE AWARE THAT THIS COMMODITY POOL MAY TRADE FOREIGN FUTURES OR OPTIONS CONTRACTS. TRANSACTIONS ON MARKETS LOCATED OUTSIDE THE UNITED STATES, INCLUDING MARKETS FORMALLY LINKED TO A UNITED STATES MARKET, MAY BE SUBJECT TO REGULATIONS WHICH OFFER DIFFERENT OR DIMINISHED PROTECTIONS TO THE POOL AND ITS PARTICIPANTS. FURTHER, UNITED STATES REGULATORY AUTHORITIES MAY BE UNABLE TO COMPEL THE ENFORCEMENT OF THE RULES OF REGULATORY AUTHORITIES OR MARKETS IN NON-UNITED STATES JURISDICTIONS WHERE TRANSACTIONS FOR THE POOL MAY BE EFFECTED.

THESE POOLS HAVE NOT COMMENCED TRADING AND DO NOT HAVE ANY PERFORMANCE HISTORY. NEITHER THIS POOL OPERATOR NOR ANY OF ITS TRADING PRINCIPALS HAS PREVIOUSLY OPERATED ANY OTHER POOLS OR TRADED ANY OTHER ACCOUNTS. THE COMMODITY TRADING ADVISOR HAS NOT PREVIOUSLY DIRECTED ANY ACCOUNTS.

 

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THIS PROSPECTUS DOES NOT INCLUDE ALL OF THE INFORMATION OR EXHIBITS IN THE REGISTRATION STATEMENT OF THE TRUST. INVESTORS CAN READ AND COPY THE ENTIRE REGISTRATION STATEMENT AT THE PUBLIC REFERENCE FACILITIES MAINTAINED BY THE SEC IN WASHINGTON, D.C.

 

 

THE BOOKS AND RECORDS OF EACH FUND WILL BE MAINTAINED AS FOLLOWS:

 

   

All marketing materials will be maintained at the offices of:

SEI Investments Distribution Co. (“SEI”)

1 Freedom Valley Drive

Oaks, PA 19456

 

   

Creation Unit creation and redemption books and records, accounting and certain other financial books and records (including Fund accounting records, ledgers with respect to assets, liabilities, capital, income and expenses, the register, transfer journals and related details) and certain trading and related documents received from Futures Commission Merchants (“FCMs”) will be maintained at the offices of:

Brown Brothers Harriman & Co. (“BBH”)

50 Milk Street

Boston, MA 02109

 

   

All other books and records of each Fund (including minute books and other general corporate records, trading records and related reports) will be maintained at each Fund’s principal office, c/o ProShare Capital Management LLC, 7501 Wisconsin Avenue, Suite 1000, Bethesda, Maryland 20814.

SHAREHOLDERS WILL HAVE THE RIGHT, DURING NORMAL BUSINESS HOURS, TO HAVE ACCESS TO AND COPY (UPON PAYMENT OF REASONABLE REPRODUCTION COSTS) SUCH BOOKS AND RECORDS IN PERSON OR BY THEIR AUTHORIZED ATTORNEY OR AGENT. MONTHLY ACCOUNT STATEMENTS CONFORMING TO CFTC AND THE NATIONAL FUTURES ASSOCIATION (THE “NFA”) REQUIREMENTS WILL BE POSTED ON THE SPONSOR’S WEBSITE AT WWW.PROSHARES.COM. ADDITIONAL REPORTS MAY BE POSTED ON THE SPONSOR’S WEBSITE IN THE DISCRETION OF THE SPONSOR OR AS REQUIRED BY REGULATORY AUTHORITIES. THERE WILL SIMILARLY BE DISTRIBUTED TO SHAREHOLDERS, NOT MORE THAN 90 DAYS AFTER THE CLOSE OF THE FUNDS’ FISCAL YEAR, CERTIFIED AUDITED FINANCIAL STATEMENTS AND (IN NO EVENT LATER THAN MARCH 15 OF THE IMMEDIATELY FOLLOWING YEAR) THE TAX INFORMATION RELATING TO SHARES OF EACH FUND NECESSARY FOR THE PREPARATION OF SHAREHOLDERS’ ANNUAL FEDERAL INCOME TAX RETURNS.

 

 

THE FUNDS WILL FILE QUARTERLY AND ANNUAL REPORTS WITH THE SEC. INVESTORS CAN READ AND COPY THESE REPORTS AT THE SEC PUBLIC REFERENCE FACILITIES IN WASHINGTON, D.C. PLEASE CALL THE SEC AT 1–800–SEC–0330 FOR FURTHER INFORMATION.

 

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THE FILINGS OF THE TRUST ARE POSTED AT THE SEC WEBSITE AT WWW.SEC.GOV.

 

 

REGULATORY NOTICES

NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE TRUST, ANY OF THE FUNDS, THE SPONSOR, THE AUTHORIZED PARTICIPANTS OR ANY OTHER PERSON.

THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION TO SELL OR A SOLICITATION OF AN OFFER TO BUY, NOR SHALL THERE BE ANY OFFER, SOLICITATION, OR SALE OF THE SHARES IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION, OR SALE IS NOT AUTHORIZED OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE ANY SUCH OFFER, SOLICITATION, OR SALE.

 

 

THE DIVISION OF INVESTMENT MANAGEMENT OF THE SEC REQUIRES THAT THE FOLLOWING STATEMENT BE PROMINENTLY SET FORTH HEREIN: “NEITHER PROSHARES TRUST II NOR ANY SERIES THEREOF IS A MUTUAL FUND OR ANY OTHER TYPE OF INVESTMENT COMPANY WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, AND IS NOT SUBJECT TO REGULATION THEREUNDER.”

 

 

AUTHORIZED PARTICIPANTS MAY BE REQUIRED TO DELIVER A PROSPECTUS WHEN TRANSACTING IN SHARES. SEE “PLAN OF DISTRIBUTION.”

 

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PROSHARES TRUST II

Table of Contents

PART ONE

DISCLOSURE DOCUMENT

 

SUMMARY

   1

Overview

   1

The Ultra ProShares

   1

The UltraShort ProShares

   1

Purchases and Sales in the Secondary Market, on the AMEX

   2

Creation and Redemption Transactions

   2

Breakeven Table

   2

Breakeven Amounts

   2

Risk Factors

   3

Risks Related to the Funds’ Operations and Management

   3

Risks Related to the Funds’ Shares

   4

Risks Related to Regulatory Requirements and Potential Legislative Changes

   5

Investment Objectives

   6

Principal Investment Strategies

   6

The Sponsor

   8

The Administrator, Custodian and Transfer Agent

   9

The Distributor

   9

The Trustee

   9

Futures Commission Merchant

   9

Limitation of Liabilities

   9

Creation and Redemption of Shares

   10

The Offering

   10

Authorized Participants

   11

Net Asset Value

   11

Clearance and Settlement

   11

Use of Proceeds

   11

Fees and Expenses

   11

Distributions

   12

Fiscal Year

   13

Financial Information

   13

U.S. Federal Income Tax Considerations

   13

Reports to Shareholders

   13

Cautionary Note Regarding Forward-Looking Statements

   13

RISK FACTORS

   15

Risks Related to the Funds’ Operations and Management

   15

Risks Related to the Funds’ Shares

   25

Risks Related to Regulatory Requirements and Potential Legislative Changes

   27

INVESTMENT OBJECTIVES AND PRINCIPAL INVESTMENT STRATEGIES

   30

Investment Objectives

   30

Principal Investment Strategies

   31

Supplemental Information About Financial Instruments and Commodities Markets

   33

DESCRIPTION OF THE DOW JONES—AIG COMMODITY INDEX AND SUB-INDICES

   37

The Dow Jones—AIG Commodity Index

   37

Dow Jones—AIG Commodity Index Excess Return

   38

Dow Jones—AIG Agriculture Sub-Index Excess Return

   38

 

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Dow Jones—AIG Crude Oil Sub-Index SM Excess Return

   38

DESCRIPTION OF THE COMMODITY BENCHMARKS

   41

Gold

   41

Silver

   41

DESCRIPTION OF THE CURRENCIES BENCHMARKS

   42

Euro

   42

Japanese Yen

   42

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

   44

OFF-BALANCE SHEET ARRANGEMENTS AND CONTRACTUAL OBLIGATIONS

   46

USE OF PROCEEDS

   47

CHARGES

   48

Breakeven Table

   48

Breakeven Amounts

   49

Organization and Offering Stage

   49

Operational Stage

   50

WHO MAY SUBSCRIBE

   52

CREATION AND REDEMPTION OF SHARES

   53

Creation Procedures

   54

Redemption Procedures

   55

Suspension or Rejection of Redemption Orders

   55

Creation and Redemption Transaction Fee

   56

Special Settlement

   56

LITIGATION

   57

DESCRIPTION OF THE SHARES; THE FUNDS; CERTAIN MATERIAL TERMS OF THE TRUST AGREEMENT

   58

Description of the Shares

   58

Principal Office; Location of Records

   58

The Funds

   59

The Trustee

   59

The Sponsor

   60

Fiduciary and Regulatory Duties of the Sponsor

   62

Ownership or Beneficial Interest in the Funds

   63

Management; Voting by Shareholders

   63

Recognition of the Trust and the Funds in Certain States

   63

Possible Repayment of Distributions Received by Shareholders

   63

Shares Freely Transferable

   64

Book-Entry Form

   64

Reports to Shareholders

   64

Net Asset Value “NAV”

   64

Intraday Indicative Value (“IIV”)

   65

Termination Events

   66

DISTRIBUTIONS

   67

THE ADMINISTRATOR

   68

 

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THE CUSTODIAN

   68

THE TRANSFER AGENT

   68

DISTRIBUTOR

   68

Description of SEI

   68

PRUDENTIAL BACHE COMMODITIES, LLC

   69

Initial Margin Levels Expected to be Held at the FCM

   69

THE SECURITIES DEPOSITORY; BOOK-ENTRY ONLY SYSTEM; GLOBAL SECURITY

   70

SHARE SPLITS

   71

CONFLICT OF INTEREST

   71

MATERIAL CONTRACTS

   72

Administrative Agency Agreement

   72

Custodian Agreement

   72

Distribution Agreement

   73

Futures Account Agreement

   73

MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS

   74

Status of the Funds

   75

U.S. Shareholders

   76

PURCHASES BY EMPLOYEE BENEFIT PLANS

   86

General

   86

“Plan Assets”

   86

Ineligible Purchasers

   87

PLAN OF DISTRIBUTION

   88

Buying and Selling Shares

   88

Authorized Participants

   88

Likelihood of Becoming a Statutory Underwriter

   88

General

   89

LEGAL MATTERS

   90

EXPERTS

   90

WHERE INVESTORS CAN FIND MORE INFORMATION

   90

RECENT FINANCIAL INFORMATION AND ANNUAL REPORTS

   90

PRIVACY POLICY

   91

INDEX TO FINANCIAL INFORMATION

   F-1

APPENDIX A — GLOSSARY

   A-1

 

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SUMMARY

Investors should read the following summary together with the more detailed information, including under the caption “Risk Factors,” and all exhibits to the Prospectus before deciding to invest in any Shares. For ease of reference, any references throughout this Prospectus to various actions taken by each of the Funds are actually actions that the Trust has taken on behalf of such Funds.

Definitions used in this Prospectus can be found in the Glossary in Appendix A.

 

 

Overview

The Funds offer investors the opportunity to get leveraged or short exposure to commodities indexes, particular commodities or particular currencies.

Groups of Funds are collectively referred to in two different ways. References to Ultra ProShares or UltraShort ProShares refer to the different Funds based upon their investment objectives, but without distinguishing among the Funds’ benchmarks. References to Commodity Index Funds, Commodity Funds and Currency Funds refer to the different Funds according to their general benchmark categories without distinguishing among the Funds’ investment objectives or Fund-specific benchmarks.

ProShare Capital Management LLC, will serve as the Trust’s Sponsor, commodity pool operator and commodity trading advisor. The principal office of the Sponsor is located at 7501 Wisconsin Avenue, Suite 1000, Bethesda, Maryland 20814. The telephone number of the Sponsor is (240) 497-6400.

The Ultra ProShares

Each Ultra Fund seeks to provide daily investment results (before fees and expenses) that correspond to twice (200%) the daily performance of its corresponding benchmark shown below. The Ultra ProShares do not seek to achieve their stated investment objective over a period of time greater than one day because mathematical compounding prevents the Funds from achieving such results.

 

Ultra ProShares Fund Name

 

Benchmark

Ultra DJ-AIG Commodity ProShares   Dow Jones—AIG Commodity Index SM
Ultra DJ-AIG Agriculture ProShares   Dow Jones—AIG Agriculture Sub-Index SM
Ultra DJ-AIG Crude Oil ProShares   Dow Jones—AIG Crude Oil Sub-Index SM
Ultra Gold ProShares   The daily performance of gold bullion as measured by the U.S. Dollar p.m. fixing price for delivery in London
Ultra Silver ProShares   The daily performance of silver bullion as measured by the U.S. Dollar fixing price for delivery in London
Ultra Euro ProShares   The U.S. Dollar price of the Euro
Ultra Yen ProShares   The U.S. Dollar price of the Japanese Yen

The UltraShort ProShares

Each UltraShort Fund seeks to provide daily investment results (before fees and expenses) that correspond to twice (200%) the inverse (opposite) of the daily performance of the corresponding benchmark shown below. The UltraShort ProShares do not seek to achieve their stated investment objective over a period of time greater than one day because mathematical compounding prevents the Funds from achieving such results.

 

UltraShort ProShares Fund Name

 

Benchmark

UltraShort DJ-AIG Commodity ProShares   Dow Jones—AIG Commodity Index SM
UltraShort DJ-AIG Agriculture ProShares   Dow Jones—AIG Agriculture Sub-Index SM
UltraShort DJ-AIG Crude Oil ProShares   Dow Jones—AIG Crude Oil Sub-Index SM
UltraShort Gold ProShares   The daily performance of gold bullion as measured by the U.S. Dollar p.m. fixing price for delivery in London
UltraShort Silver ProShares   The daily performance of silver bullion as measured by the U.S. Dollar fixing price for delivery in London
UltraShort Euro ProShares   The U.S. Dollar price of the Euro
UltraShort Yen ProShares   The U.S. Dollar price of the Japanese Yen

 

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Purchases and Sales in the Secondary Market, on the AMEX

An application has been made to list the Shares of each Fund on the AMEX under the following symbols:

 

Fund

  

Ticker Symbol

Ultra DJ-AIG Commodity ProShares    UCD
UltraShort DJ-AIG Commodity ProShares    CMD
Ultra DJ-AIG Agriculture ProShares    HOE
UltraShort DJ-AIG Agriculture ProShares    SOW
Ultra DJ-AIG Crude Oil ProShares    USF
UltraShort DJ-AIG Crude Oil ProShares    OLS
Ultra Gold ProShares    ULD
UltraShort Gold ProShares    UGL
Ultra Silver ProShares    AGQ
UltraShort Silver ProShares    ZSL
Ultra Euro ProShares    ULE
UltraShort Euro ProShares    EXZ
Ultra Yen ProShares    YCL
UltraShort Yen ProShares    YCS

Secondary market purchases and sales of Shares will be subject to ordinary brokerage commissions and charges. The Shares of each Fund will trade on the AMEX, or any successor entity thereto, like any other equity security.

Creation and Redemption Transactions

Only Authorized Participants may purchase ( i.e. , create) or redeem Creation Units of Shares in each Fund. Creation Units in a Fund are expected to be created when there is sufficient demand for Shares in such Fund that the market price per Share is at a premium to the NAV per Share. Authorized Participants will likely sell such Shares to the public at prices that are expected to reflect, among other factors, the trading price of the Shares of such Fund and the supply of and demand for the Shares at the time of sale and are expected to fall between NAV and the trading price of the Shares at the time of sale. Similarly, it is expected that Creation Units in a Fund will be redeemed when the market price per Share of such Fund is at a discount to the NAV per Share. The Sponsor expects that the exploitation of such arbitrage opportunities by Authorized Participants and their clients and customers will tend to cause the public trading price of the Shares to track the NAV per Share of a Fund closely over time. Retail investors seeking to purchase or sell Shares on any day are expected to effect such transactions in the secondary market at the market price per Share, rather than in connection with the creation or redemption of Creation Units.

Breakeven Table

See “Charges—Breakeven Table” on page 48 of this Prospectus for detailed Breakeven Tables.

Breakeven Amounts

The Funds will be profitable only if their annual returns from a Fund’s investments plus any income received on those investments, exceed a Fund’s fees, costs and expenses. It is not possible to predict whether a Fund will breakeven at the end of the first twelve months of an investment.

The estimated amount of all fees and expenses which are anticipated to be incurred by a new investor during the first twelve months is 0.955% (or $0.67 for the initial offering price per Share of $70.00) for each of the following Funds: Ultra DJ-AIG Commodity ProShares, UltraShort DJ-AIG Commodity ProShares, Ultra DJ-AIG Agriculture ProShares, UltraShort DJ-AIG Agriculture ProShares, Ultra DJ-AIG Crude Oil ProShares, UltraShort DJ-AIG Crude Oil ProShares, Ultra Gold ProShares, UltraShort Gold ProShares, Ultra Silver ProShares and UltraShort Silver ProShares.

 

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The estimated amount of all fees and expenses which are anticipated to be incurred by a new investor during the first twelve months is 0.955% (or $0.48 for the initial offering price per Share of $50.00) for each of the following Funds: Ultra Euro ProShares, UltraShort Euro ProShares, Ultra Yen ProShares and UltraShort Yen ProShares.

See “Charges—Breakeven Table,” on page 48, for detailed Breakeven Amounts and Tables.

Risk Factors

An investment in the Shares has risks. The “Risk Factors” section of this Prospectus contains a detailed discussion of the most important risks. Please refer to the “Risk Factors” section for a more detailed discussion of the risks summarized below and other risks of investment in the Shares.

Risks Related to the Funds’ Operations and Management

 

   

The Funds are subject to the risks associated with being newly organized, which may adversely affect the operations of the Funds.

 

   

The Funds have no operating history, and, as a result, investors may not rely on past performance in deciding whether to buy the Shares.

 

   

Investors cannot be assured of the Sponsor’s continued services, which discontinuance may be detrimental to the Funds.

 

   

Investors may be adversely affected by redemption orders that are subject to postponement, suspension or rejection under certain circumstances.

 

   

An investor may be adversely affected by lack of independent advisers representing investors.

 

   

Possibility of termination of the Funds may adversely affect an investor’s portfolio.

 

   

The value of the Shares of each Fund relates directly to the value of, and realized profit or loss from, the Financial Instruments and other assets held by the Fund and fluctuations in the price of these assets could materially adversely affect an investment in the Shares.

 

   

The NAV may not always correspond to market price and, as a result, investors may be adversely affected by the creation or redemption of Creation Units at a value that differs from the market price of the Shares.

 

   

Using leverage and/or short positions should be considered to be speculative and could result in the total loss of an investor’s investment.

 

   

Fewer representative commodities may result in greater benchmark volatility, which could adversely affect an investment in the Shares.

 

   

Failure of the commodity or the currency markets, as the case may be, to exhibit low to negative correlation to general financial markets will reduce benefits of diversification and may exacerbate losses to an investor’s portfolio.

 

   

Trading on commodity exchanges outside the United States is not subject to U.S. regulation and may result in different or diminished investor protections.

 

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An investment in the Shares may be adversely affected by competition from other methods of investing in commodities or currencies.

 

   

The presence of “contango” in the market prices of benchmark commodity futures contracts will generally adversely affect the value of those Ultra Funds, and the presence of “backwardation” in the market prices of benchmark commodity futures contracts will generally adversely affect the value of those UltraShort Funds.

 

   

Funds that are designed to track a multiple or inverse multiple of the daily performance of gold or silver bullion (Ultra Gold ProShares, UltraShort Gold ProShares, Ultra Silver ProShares and UltraShort Silver ProShares) will not invest in bullion itself as certain other exchange traded products do. Rather the Funds will use Financial Instruments to gain exposure to these precious metals. Not investing directly in bullion may introduce additional tracking error and these Funds will be subject to the effects of contango and backwardation described above.

 

   

The Funds will be subject to counterparty risks, credit risks and other risks associated with swap agreements and forward contracts, which could result in significant losses to the Funds.

 

   

Each Fund will seek to track a multiple or inverse multiple of a benchmark on a daily basis at all times even during periods in which the applicable benchmark is flat as well as when a benchmark is moving in a manner which causes a Fund’s NAV to decline, thereby causing losses to such Fund.

 

   

Investors who only invest in any one of an Ultra Fund or an UltraShort Fund may not be able to profit if the market value of the underlying benchmark moves against such investment.

 

   

A Fund’s exposure to the commodities or currencies markets may subject the Fund to greater volatility than investments in traditional securities, which may adversely affect an investor’s investment in that Fund.

 

   

While close tracking of any Fund to its benchmark may be achieved on any single trading day, over time the cumulative percentage increase or decrease in the NAV of the Shares of a Fund may diverge significantly from the cumulative percentage decrease or increase in the relevant benchmark due to a compounding effect.

 

   

Price volatility, which is exacerbated by the use of leverage, may possibly cause the total loss of an investor’s investment.

 

   

Fees are charged regardless of profitability and may result in depletion of assets.

 

   

Possible illiquid markets may exacerbate losses.

 

   

Competing claims of intellectual property rights may adversely affect the Funds and an investment in the Shares.

 

   

Investors may be adversely affected by an overstatement or understatement of the NAV calculation of a Fund due to the valuation method employed when a settlement price is not available on the date of NAV calculation.

Risks Related to the Funds’ Shares

 

   

The lack of active trading markets for the Shares of a Fund may result in losses on investors’ investments at the time of disposition of his, her, or its Shares.

 

   

The Shares of each Fund are new securities products and their value could decrease if unanticipated operational or trading problems arise.

 

   

The liquidity of the Shares may also be affected by the withdrawal from participation of Authorized Participants, which could adversely affect the market price of the Shares.

 

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Shareholders that are not Authorized Participants may only purchase or sell their Shares in secondary trading markets, and the conditions associated with trading in secondary markets may adversely affect investors’ investment in the Shares.

 

   

AMEX may halt trading in the Shares of a Fund which would adversely impact investors’ ability to sell Shares.

 

   

Shareholders will not have the protections associated with ownership of shares in an investment company registered under the 1940 Act.

 

   

Shareholders do not have the rights enjoyed by investors in certain other vehicles and may be adversely affected by a lack of statutory rights and by limited voting and distribution rights.

 

   

The value of the Shares will be adversely affected if the Funds are required to indemnify the Trustee or the Sponsor.

 

   

Although the Shares of each Fund are limited liability investments, certain circumstances such as bankruptcy of a Fund or indemnification of a Fund by the shareholder will increase a shareholder’s liability.

 

   

A court could potentially conclude that the assets and liabilities of one Fund are not segregated from those of another Fund and thereby potentially exposing assets in one Fund to the liabilities of another Fund.

 

   

With respect to the Currency Funds, substantial purchases or sales of a foreign currency by the official sector of the relevant foreign country could adversely affect an investment in the Shares.

 

   

Shareholders of each Fund will be subject to taxation on their share of the Fund’s taxable income, whether or not they receive cash distributions.

 

   

Investors could be adversely affected if items of income, gain, deduction, loss and credit with respect to Shares of a Fund are reallocated in the event that the IRS does not accept the assumptions or conventions used by the Fund in allocating Fund tax items.

 

   

Investors could be adversely affected if the current treatment of long-term capital gains under current U.S. federal income tax law is changed or repealed in the future.

Risks Related to Regulatory Requirements and Potential Legislative Changes

 

   

The Funds will be subject to regulatory risk associated with futures contracts that could adversely affect the Funds’ operations and profitability and cause conflicts of interest.

 

   

Failure of FCMs to segregate assets may increase losses in the Funds.

 

   

Regulatory changes or actions may alter the operations and profitability of the Funds.

 

   

Legislative changes are being proposed that could make it more difficult, if not impossible, for the Funds to operate.

 

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Investment Objectives

Investment objectives of the “Ultra ProShares”:

Each “Ultra” Fund will seek daily investment results (before fees and expenses) that correspond to twice (200%) the daily performance of its corresponding benchmark. If an “Ultra” Fund is successful in meeting its objective, its value on a given day (before fees and expenses) should gain approximately twice as much on a percentage basis as its corresponding benchmark when the benchmark rises on a given day. Conversely, its value on a given day (before fees and expenses) should lose approximately twice as much on a percentage basis as the corresponding benchmark when the benchmark declines on a given day. An Ultra Fund will acquire long exposure in any one of or combinations of Financial Instruments, including Financial Instruments with respect to the applicable Ultra Fund’s benchmark, such that each Ultra Fund has approximately 200% exposure to the corresponding benchmark at the time of the NAV calculation.

Investment objectives of the “UltraShort ProShares”:

Each “UltraShort” Fund will seek daily investment results (before fees and expenses) that correspond to twice (200%) the inverse (opposite) of the daily performance of its corresponding benchmark. If an “UltraShort” Fund is successful in meeting its objective, its value on a given day (before fees and expenses) should gain approximately twice as much on a percentage basis as its corresponding benchmark when the benchmark falls on a given day. Conversely, its value on a given day (before fees and expenses) should lose approximately twice as much on a percentage basis as the corresponding benchmark when the benchmark rises on a given day. An UltraShort Fund will acquire short exposure in any one of or combinations of Financial Instruments, including Financial Instruments with respect to the applicable UltraShort Fund’s benchmark, such that each UltraShort Fund has approximately 200% exposure to the corresponding benchmark at the time of the NAV calculation.

There can be no assurance that any Fund will achieve its investment objective or avoid substantial losses.

Principal Investment Strategies

In seeking to achieve each Fund’s investment objective, the Sponsor uses a mathematical approach to investing. Using this approach, the Sponsor determines the type, quantity and mix of investment positions that the Sponsor believes in combination should produce daily returns consistent with a Fund’s objective. The Sponsor relies upon a pre-determined model to generate trading signals. It is currently contemplated that each Fund will invest principally in any one of or combinations of the Financial Instruments described below with respect to the applicable Fund’s benchmark to the extent determined appropriate by the Sponsor. Assets of each Fund not invested in Financial Instruments will be invested in cash and/or U.S. Treasury Securities or other high credit quality short-term fixed-income or similar securities (such as shares of money market funds, bank deposits, bank money market accounts, certain variable rate-demand notes and repurchase agreements collateralized by government securities, whether denominated in U.S. or the applicable foreign currency with respect to a Currency Fund) that will serve as collateral for the Financial Instruments.

Swap Agreements

Swap agreements are two-party contracts entered into primarily by institutional investors for a specified period ranging from a day to more than a year. In a standard swap transaction, the parties agree to exchange the returns on a particular predetermined investment, instrument or index. The gross returns to be exchanged are calculated with respect to a notional amount and the benchmark returns to which the swap is linked. Swaps are usually entered into on a net basis, that is, the two payment streams are netted out in a cash settlement on the payment date or dates specified in the agreement with the parties receiving or paying, as the case may be, only the net amount of the two payments. In a typical swap agreement entered into by an Ultra Fund, absent Fees and transaction costs, the Ultra Fund would be entitled to settlement payments in the event the benchmark increases and would be required to make payments to the swap counterparty in the event the benchmark decreases. In a typical swap agreement entered into by an UltraShort Fund, the UltraShort Fund would be required to make payments to the swap counterparty in the event the benchmark increases and would be entitled to settlement payments in the event the benchmark decreases.

 

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Forward Contracts

A forward contract is a contractual obligation to purchase or sell a specified quantity of a commodity or currency at or before a specified date in the future at a specified price and, therefore, is economically similar to a futures contract. Unlike futures contracts, however, forward contracts are typically traded in the over-the-counter (“OTC”) markets and are not standardized contracts. Forward contracts for a given commodity or currency are generally available for various amounts and maturities and are subject to individual negotiation between the parties involved. Moreover, generally there is no direct means of offsetting or closing out a forward contract by taking an offsetting position as one would a futures contract on a U.S. exchange. If a trader desires to close out a forward contract position, he generally will establish an opposite position in the contract but will settle and recognize the profit or loss on both positions simultaneously on the delivery date. Thus, unlike in the futures contract market where a trader who has offset positions will recognize profit or loss immediately, in the forward market a trader with a position that has been offset at a profit will generally not receive such profit until the delivery date, and likewise a trader with a position that has been offset at a loss will generally not have to pay money until the delivery date. In recent years, however, the terms of forward contracts have become more standardized, and in some instances such contracts now provide a right of offset or cash settlement as an alternative to making or taking delivery of the underlying commodity or currency. The forward markets are largely unregulated. Forward contracts are, in general, not cleared or guaranteed by a third party.

The forward markets provide what has typically been a highly liquid market for foreign exchange trading, and in certain cases the prices quoted for foreign exchange forward contracts may be more favorable than the prices for foreign exchange futures contracts traded on U.S. exchanges. Commercial banks participating in trading foreign exchange forward contracts often do not require margin deposits, but rely upon internal credit limitations and their judgments regarding the creditworthiness of their counterparties. In recent years, however, many OTC market participants in foreign exchange trading have begun to require that their counterparties post margin.

Futures Contracts

A futures contract is a standardized contract traded on, or subject to the rules of, an exchange that calls for the future delivery of a specified quantity and type of a commodity at a specified time and place. Futures contracts are traded on a wide variety of commodities, including bonds, interest rates, agricultural products, stock indices, currencies, energy and metals. The size and length of futures contracts on a particular commodity are identical and are not subject to any negotiation, other than with respect to price and the number of contracts traded between the buyer and seller.

The contractual obligations of a buyer or seller may generally be satisfied by taking or making physical delivery of the underlying commodity or by making an offsetting sale or purchase of an identical futures contract on the same or linked exchange before the designated date of delivery. The difference between the price at which the futures contract is purchased or sold and the price paid for the offsetting sale or purchase, after allowance for brokerage commissions, constitutes the profit or loss to the trader. Some futures contracts, such as stock index contracts, settle in cash (reflecting the difference between the contract purchase/sale price and the contract settlement price) rather than by delivery of the underlying commodity.

Options

Option contracts grant one party a right, for a price, either to buy or sell forward contracts, futures contracts or currencies at a fixed price during a specified period or on a specified day.

 

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How the Funds Expect to Obtain 200% (or -200%) Exposure to the Corresponding Benchmark

Each of the Funds attempts to have total exposure to the corresponding benchmark that equals 200% of Fund assets for the Ultra Funds, and -200% of Fund assets for the UltraShort Funds, at the time NAV is calculated.

To achieve this, each Fund is expected to hold some combination of Financial Instruments (swap contracts, futures contracts, forward contracts, option contracts) and that in combination with cash equivalents result in total long notional exposure equal to 200% of Fund assets for the Ultra Funds, and total short notional exposure equal to -200% of Fund assets for the UltraShort Funds.

Each of the Financial Instruments held in a particular Fund will have an underlying benchmark that is substantially the same as the underlying benchmark for the particular Fund. Furthermore each of the Financial Instruments held (with the exception of certain options) will have a beta of approximately one so that the return of the Financial Instrument is essentially equivalent to the return of the index. As such, for each dollar invested in the Fund, two dollars of long exposure in Financial Instruments will be sought for the Ultra Funds and two dollars of short exposure will be sought for the UltraShort Funds.

By way of example, the benchmark for the Ultra DJ-AIG Crude Oil ProShares is the Dow Jones—AIG Crude Oil Sub Index SM . The index is in turn based on the price of nearby futures contracts of sweet, light crude oil traded on the New York Mercantile Exchange (“NYMEX”). Any swap held by the Fund would be based on the performance of the Index (or a substantially equivalent index) and futures contracts held by the Fund would be the NYMEX crude oil futures contract (or a substantially equivalent futures contract) that underlie the Index. Using the planned $7 million initial purchase for this Fund as an example, the Sponsor would seek to obtain $14 million in exposure to the Index either directly through long swap positions or indirectly through long futures positions. The particular ratio of swap, futures and other Financial Instruments held may vary greatly overtime depending on which instruments the Sponsor believes will best meet the investment objective of the Fund. One example of a possible portfolio composition follows:

 

Fund Holdings:

   Index Exposure     Market Value*  

DJ-AIG Crude Oil Sub Index Swap (Long)

   $ 11,200,000     $ 0.00  

NYMEX crude oil futures contracts (Long)

   $ 2,800,000     $ 0.00  

Cash Equivalents

   $ 0.00     $ 7,000,000  

Totals

   $ 14,000,000     $ 7,000,000  

 

Similarly, the UltraShort DJ-AIG Crude Oil ProShares might have the following holdings after the initial purchase:

 

 

Fund Holdings:

   Index Exposure     Market Value*  

DJ-AIG Crude Oil Sub Index Swap (Short)

   $ (11,200,000 )   $ 0.00  

NYMEX crude oil futures contracts (Short)

   $ (2,800,000 )   $ 0.00  

Cash and Cash Equivalents

   $ 0.00     $ 7,000,000 **

Totals

   $ (14,000,000 )   $ 7,000,000  

 

* Absent transaction costs, initially upon entering into a swap or futures contract, there is no market value until the index moves away from the level at which it was at when the agreement was entered into.
** As described below, certain cash or cash equivalents will be held in segregated accounts at the FCM. The remainder will be held at the Custodial Bank. Interest earned on all cash and cash equivalents will accrue to the Fund.

The Sponsor

ProShare Capital Management LLC, a Maryland limited liability company formed on May 11, 1999, will serve as the Trust’s Sponsor, commodity pool operator and commodity trading advisor. The Sponsor and its trading principals do not have established experience in operating commodity pools and managing futures trading accounts. The Sponsor is registered as a commodity pool operator and commodity trading advisor with the CFTC, and is a member of the NFA. As a registered commodity pool operator and commodity trading advisor, with respect to the Trust, the Sponsor must comply with various regulatory requirements under the Commodity Exchange Act, (the “CEA”), and the rules and regulations of the CFTC and the NFA, including investor protection requirements, antifraud prohibitions, disclosure requirements, and reporting and recordkeeping requirements. The Sponsor is also subject to periodic inspections and audits by the CFTC and NFA.

 

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Under the Trust Agreement (as defined below), the Sponsor has exclusive management and control of all aspects of the business of each Fund. The Trustee will have no duty or liability to supervise the performance of the Sponsor, nor will the Trustee have any liability for the acts or omissions of the Sponsor.

Each Fund will pay the Sponsor a Management Fee, monthly in arrears, in an amount equal to 0.95% per annum of the average daily NAV of such Fund. The Management Fee will be paid in consideration of the Sponsor’s trading advisory services.

The Administrator, Custodian and Transfer Agent

BBH will serve as the administrator (the “Administrator”), custodian (the “Custodian”) and transfer agent (the “Transfer Agent”) of each Fund and its Shares and has entered into an administrative agency agreement (the “Administrative Agency Agreement”) and a custodian agreement (the “Custodian Agreement”) with the Trust in connection therewith. In such capacities, BBH will, among other things, perform various fund accounting services; legal and regulatory administration support services; hold each Fund’s assets pursuant to a custodial agreement; and maintain books and records relating to ownership of Fund Shares.

BBH, a private bank founded in 1818, is not a publicly held company nor is it insured by the Federal Deposit Insurance Corporation. BBH is authorized to conduct a commercial banking business in accordance with the provisions of Article IV of the New York State Banking Law, New York Banking Law §§ 160 – 181, and is subject to regulation, supervision, and examination by the New York State Banking Department. BBH is also licensed to conduct a commercial banking business by the Commonwealths of Massachusetts and Pennsylvania and is subject to supervision and examination by the banking supervisors of those states.

The Distributor

SEI will serve as Distributor of the Shares and will assist the Sponsor and the Administrator with certain functions and duties relating to distribution and marketing, including reviewing and approving marketing materials. SEI will retain all marketing materials separately for each Fund, at c/o SEI, One Freedom Valley Drive, Oaks, PA 19456. The Sponsor, on behalf of each Fund, will enter into a distribution agreement (the “Distribution Agreement”) with SEI.

The Trustee

Wilmington Trust Company, (the “Trustee”), a Delaware banking corporation, is the sole trustee of the Trust. Under an Amended and Restated Trust Agreement, as may be further amended and restated from time to time, (the “Trust Agreement”), the Trustee does not have the power and authority to manage the Trust’s business and affairs and has only nominal duties and liabilities to the Trust.

Futures Commission Merchant

The Sponsor has selected Prudential Bache Commodities, LLC (“PBC”) as its initial Futures Commission Merchant and has entered into a Futures Commission Merchant Agreement with PBC. PBC, in its capacity as a registered FCM, will serve as a clearing broker to the Trust and each Fund and as such will arrange for the execution and clearing of each Fund’s commodity futures trades.

Limitation of Liabilities

Investors investment in a Fund is part of the assets of that Fund, and it will therefore only be subject to the risks of that Fund’s trading. Investors cannot lose more than their investment in a Fund, and they will not be subject to the losses or liabilities of a Fund in which they have not invested. The Trust will receive an opinion of counsel that each Fund will be entitled to the benefits of the limitation on inter-series liability provided under the Delaware Statutory Trust Act, (the “DSTA”). Each Share, when purchased in accordance with the Trust Agreement of the Trust, shall, except as otherwise provided by law, be fully-paid and non-assessable.

 

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The debts, liabilities, obligations, claims and expenses of a particular Fund will be enforceable against the assets of that Fund only, and not against the assets of other Funds or the assets of the Trust generally, and, unless otherwise provided in the Trust Agreement, none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the Trust generally or any other series thereof will be enforceable against the assets of such Fund, as the case may be.

Creation and Redemption of Shares

The Funds will create and redeem Shares from time to time, but only in one or more Creation Units. A Creation Unit is a block of 50,000 Shares of a Fund. Creation Units may be created or redeemed only by Authorized Participants. Except when aggregated in Creation Units, the Shares are not redeemable securities. Authorized Participants pay a fixed and variable transaction fee in connection with each order to create or redeem a Creation Unit. Authorized Participants may sell the Shares included in the Creation Units they purchase from the Funds to other investors. The form of Authorized Participant Agreement and related Authorized Participant Handbook sets forth the procedures for the creation and redemption of Creation Units of Shares and for the delivery of cash required for such creations or redemptions.

See “Creation and Redemption of Shares” for more details.

The Offering

The initial Authorized Participant for the Ultra DJ-AIG Commodity ProShares, the UltraShort DJ-AIG Commodity ProShares, the Ultra DJ-AIG Crude Oil ProShares and the UltraShort DJ-AIG Crude Oil ProShares will be Goldman Sachs Execution & Clearing L.P.

The initial Authorized Participant for the Ultra DJ-AIG Agriculture ProShares, the UltraShort DJ-AIG Agriculture ProShares, the Ultra Gold ProShares, the UltraShort Gold ProShares, the Ultra Silver ProShares, the UltraShort Silver ProShares, the Ultra Euro ProShares, the UltraShort Euro ProShares, the Ultra Yen ProShares and the UltraShort Yen ProShares will be Merrill Lynch Professional Clearing Corp.

The initial Authorized Participants will purchase two or more initial Creation Units at an initial offering per Share for each Fund as follows:

 

Fund

   Price per Share

Ultra DJ-AIG Commodity ProShares

   $ 70.00

UltraShort DJ-AIG Commodity ProShares

   $ 70.00

Ultra DJ-AIG Agriculture ProShares

   $ 70.00

UltraShort DJ-AIG Agriculture ProShares

   $ 70.00

Ultra DJ-AIG Crude Oil ProShares

   $ 70.00

UltraShort DJ-AIG Crude Oil ProShares

   $ 70.00

Ultra Gold ProShares

   $ 70.00

UltraShort Gold ProShares

   $ 70.00

Ultra Silver ProShares

   $ 70.00

UltraShort Silver ProShares

   $ 70.00

Ultra Euro ProShares

   $ 50.00

UltraShort Euro ProShares

   $ 50.00

Ultra Yen ProShares

   $ 50.00

UltraShort Yen ProShares

   $ 50.00

The initial Authorized Participants intend to offer the Shares of each initial Creation Unit publicly. The effective date will be the date on which the SEC declares the registration statement relating to this Prospectus effective. The proceeds are expected to be invested after cash is received from the initial Authorized Participants. The Shares are expected to begin trading on the second day following the purchase of the initial Creation Units by the initial Authorized Participants. Thereafter, each Fund will issue Shares in Creation Units to Authorized Participants in the manner described in “Creation and Redemption of Shares.”

 

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Authorized Participants

Each Authorized Participant must (1) be a registered broker -dealer or other securities market participant, such as a bank or other financial institution which is not required to register as a broker -dealer to engage in securities transactions, (2) be a participant in the Depository Trust Company, or DTC, and (3) have entered into an agreement with each Fund and the Sponsor (an Authorized Participant Agreement). A list of the current Authorized Participants can be obtained from the Distributor. See “Creation and Redemption of Shares” for more details.

Net Asset Value

The NAV means the total assets of a Fund including, but not limited to, all cash and cash equivalents or other debt securities less total liabilities of such Fund, each determined on the basis of generally accepted accounting principles in the United States, consistently applied under the accrual method of accounting. NAV will be calculated at the following times:

 

Fund

  

NAV Calculation Time

Ultra Silver ProShares

UltraShort Silver ProShares

   7:00 a.m. (Eastern Time) *

Ultra Gold ProShares

UltraShort Gold ProShares

   10:00 a.m. (Eastern Time) *

Ultra DJ-AIG Agriculture ProShares

UltraShort DJ-AIG Agriculture ProShares

   2:15 p.m. (Eastern Time)

Ultra DJ-AIG Commodity ProShares

UltraShort DJ-AIG Commodity ProShares

   2:30 p.m. (Eastern Time)

Ultra DJ-AIG Crude Oil ProShares

UltraShort DJ-AIG Crude Oil ProShares

   2:30 p.m. (Eastern Time)

Ultra Euro ProShares

UltraShort Euro ProShares

   4:00 p.m. (Eastern Time)

Ultra Yen ProShares

UltraShort Yen ProShares

   4:00 p.m. (Eastern Time)

 

* For silver and gold this time may vary due to differences in when daylight savings time is effective between London and New York. The actual times will equate to noon London time for silver, and 3 p.m. London time for gold.

The NAV will be calculated as described under “Description of the Shares; The Funds; Certain Material Terms of the Trust Agreement—Net Asset Value” for more details.

Clearance and Settlement

The Shares of each Fund are evidenced by global certificates that the Fund issues to DTC. The Shares of each Fund are available only in book-entry form. Shareholders may hold Shares of a Fund through DTC, if they are participants in DTC, or indirectly through entities that are participants in DTC.

Use of Proceeds

Substantially all of the proceeds of the offering of the Shares of each Fund will be used by each Fund to enter into Financial Instruments relating to that Fund’s benchmark and purchase cash equivalents (such as shares of money market funds, bank deposits, bank money market accounts, certain variable rate-demand notes and repurchase agreements collateralized by government securities) that collateralize such obligations relating to that Fund’s benchmark with a view to achieving, before fees and expenses, the Fund’s investment objective. The Sponsor has selected PBC as its initial FCM. See “Use of Proceeds” for more details.

Fees and Expenses

 

Management Fee

Each Fund will pay the Sponsor a Management Fee, monthly in arrears, in an amount equal to 0.95% per annum of the average daily NAV of such Fund.

 

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Organization and Offering Expenses

Expenses incurred in connection with organizing each Fund and the initial offering of its shares will be paid by the Trust, and the Sponsor will not charge its fee in the first year of operations of each Fund in an amount equal to the organization and offering expenses. The Sponsor will reimburse the Fund to the extent that the Fund’s organizational and offering costs exceed 0.95% of the average daily NAV of each Fund for the first year of operations. Normal and expected expenses incurred in connection with the continuous offering of Shares of each Fund after the commencement of its trading operations will be paid by the Sponsor.

 

Brokerage Commissions and Fees

Each Fund will pay all brokerage commissions, including applicable exchange fees, NFA fees and give-up fees.

 

Routine Operational, Administrative and Other Ordinary Expenses

The Sponsor will pay all of the routine operational, administrative and other ordinary expenses of each Fund, generally, as determined by the Sponsor, including, but not limited to, accounting and audit fees and expenses, tax preparation expenses, legal fees not in excess of $100,000 per year, ongoing SEC registration fees and FINRA filing fees not exceeding .021% per annum of the NAV of a Fund, individual K-1 preparation and mailing fees not exceeding .05% per annum of the NAV of a Fund, and report preparation and mailing expenses.

 

Non-Recurring Fees and Expenses

Each Fund will pay all non-recurring and unusual fees and expenses, if any, as determined by the Sponsor. Such fees and expenses are those that are non-recurring, unexpected or unusual in nature.

In the event that none of the expenses described in the immediately preceding paragraph are charged to the Trust, an investment of $10,000 in Shares will incur an annual fee of approximately $            , or approximately $             over five years. Additionally, investors should expect to pay customary brokerage fees and expenses for each purchase or sale of Shares.

Each Fund also will impose on an Authorized Participant Transaction Fees to offset transfer and other transaction costs associated with the issuance and redemption of Creation Units. There is a fixed and a variable component to the total Transaction Fee on transactions in Creation Units. A fixed Transaction Fee of $500 is applicable to each creation and redemption transaction, regardless of the number of Creation Units transacted. A variable Transaction Fee up to 0.10% of the value of each Creation Unit also is applicable to each creation and redemption transaction. The Trust currently expects that the variable Transaction Fee will be 0.022% for the Commodity Funds and Commodity Index Funds and 0.0% for the Currency Funds. In addition, purchasers of Creation Units that include in-kind currencies are responsible for payment of the costs of depositing the currency with the Custodian including foreign exchange costs. Redeemers of Creation Units that include in-kind currencies are responsible for the costs of receiving the currency from the Custodian including foreign exchange costs. Investors who use the services of a broker or other such intermediary may pay additional fees for such services.

Distributions

Each Fund will make distributions at the discretion of the Sponsor. The Funds currently do not expect to make distributions with respect to capital gains or income. Depending on the applicable Fund’s performance for the

 

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taxable year and an investor’s own tax situation for such year, an investor’s income tax liability for the taxable year for an investor’s allocable share of such Fund’s net ordinary income or loss and capital gain or loss may exceed any distributions an investor receives with respect to such year.

Fiscal Year

The fiscal year of each Fund ends on December 31 of each year.

Financial Information

The Funds have only recently been organized and have no financial history.

U.S. Federal Income Tax Considerations

Subject to the discussion below in “Material U.S. Federal Income Tax Considerations,” none of the Funds will be classified as an association taxable as a corporation. Instead, each Fund will be classified as a partnership for U.S. federal income tax purposes. Accordingly, no Fund will incur U.S. federal income tax liability; rather, each beneficial owner of a Fund’s Shares will be required to take into account its allocable share of its Fund’s income, gain, loss, deductions and other items for its Fund’s taxable year ending with or within the beneficial owner’s taxable year.

The treatment of an investment in a Fund by an entity that is classified as a regulated investment company for U.S. federal income tax purposes, or a RIC, will depend, in part, on whether the corresponding Fund is classified as a qualified publicly traded partnership, or a qualified PTP, for purposes of the RIC rules. Prospective RIC investors should refer to the discussion in “Material U.S. Federal Income Tax Considerations—Regulated Investment Companies” and consult a tax adviser regarding the treatment of an investment in a Fund under current tax rules and in light of their particular circumstances.

Additionally, please refer to the “Material U.S. Federal Income Tax Considerations” section below for information on the potential U.S. federal income tax consequences of the purchase, ownership and disposition of Shares in a Fund.

Reports to Shareholders

The Sponsor will furnish shareholders of record with an annual report of each Fund in which such shareholders are invested within 90 calendar days after the end of such Fund’s fiscal year as required by the rules and regulations of the SEC as well as with those reports required by the CFTC and the NFA, including, but not limited to, an annual audited financial statement examined and certified by independent registered public accountants and any other reports required by any other governmental authority that has jurisdiction over the activities of the Funds. Shareholders of record also will be provided with appropriate information to permit them to file United States federal and state income tax returns (on a timely basis) with respect to Shares held. Monthly account statements conforming to CFTC and NFA requirements, as well as annual and quarterly reports and other filings made with the SEC, will be posted on the Sponsor’s website at www.proshares.com . Additional reports may be posted on the Sponsor’s website in the discretion of the Sponsor or as required by regulatory authorities.

Cautionary Note Regarding Forward-Looking Statements

This Prospectus contains forward-looking statements that are subject to risks and uncertainties. Investors can identify these forward-looking statements by the use of expressions such as “may,” “will,” “expect,” “anticipate,” “believe,” “intend,” “plan,” “project,” “should,” “estimate” or any negative or other variations on such expression. These forward-looking statements are based on information currently available to the Sponsor and are subject to a number of risks, uncertainties and other factors, both known, such as those listed in “Risk Factors” in this Summary, described in “Risk Factors” and elsewhere in this Prospectus, and unknown, that could cause the actual results, performance, prospects or opportunities of the Funds to differ materially from those expressed in, or implied by, these forward-looking statements.

 

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Except as expressly required by federal securities laws, the Trust assumes no obligation to update publicly any forward-looking statements, whether as a result of new information, future events or otherwise. Investors should not place undue reliance on any forward-looking statements.

 

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RISK FACTORS

Before investors invest in the Shares, they should be aware that there are various risks. Investors should consider carefully the risks described below together with all of the other information included in this Prospectus before they decide to purchase any Shares.

Risks Related to the Funds’ Operations and Management

The Funds are subject to the risks associated with being newly organized, which may adversely affect the operations of the Funds.

The Funds are newly organized. The success of the Funds will depend on a number of conditions that are beyond the control of the Funds. There is risk that the investment objectives of the Funds will not be met. The Sponsor has not previously managed any publicly offered commodity pool. If the experience of the Sponsor and its principals is not adequate or suitable to manage investment vehicles such as the Funds, the operations of the Funds may be adversely affected.

The Funds have no operating history, and, as a result, investors may not rely on past performance in deciding whether to buy the Shares.

None of the Funds have commenced trading and none have any performance history upon which to evaluate an investor’s investment in the Funds. Although past performance is not necessarily indicative of future results, if the Funds had performance histories, such performance histories might (or might not) provide investors with more information on which to evaluate an investment in a Fund. As none of the Funds have commenced trading or developed any performance history, investors will have to make their decision to invest in a Fund without such information. Likewise, a benchmark may have a limited history which might be indicative of the future results of such benchmark, or of the future performance of each applicable Fund.

Investors cannot be assured of the Sponsor’s continued services, which discontinuance may be detrimental to the Funds.

Investors cannot be assured that the Sponsor will be willing or able to continue to service the Funds for any length of time. If the Sponsor discontinues its activities on behalf of the Funds, the Funds may be adversely affected, as there may be no entity servicing the Funds for a period of time. If the Sponsor’s registrations with the CFTC or memberships in the NFA were revoked or suspended, the Sponsor would no longer be able to provide services and/or to render trading advice to the Funds. As the Funds themselves are not registered with the CFTC in any capacity, if the Sponsor were unable to provide services and/or trading advice to the Funds, the Funds would be unable to pursue their investment objectives unless and until the Sponsor’s ability to provide services and trading advice to the Funds was reinstated or a replacement for the Sponsor as commodity pool operator and/or commodity trading advisor could be found. Such an event could result in termination of the Funds.

Investors may be adversely affected by redemption orders that are subject to postponement, suspension or rejection under certain circumstances.

The Funds may, in their discretion, suspend the right of redemption or postpone the redemption settlement date, for (1) any period during which the AMEX is closed, other than for customary holidays or weekends, or when trading is restricted or suspended, (2) any period during which an emergency exists as a result of which the redemption distribution is not reasonably practicable, or (3) such other period as the Sponsor determines to be necessary for the protection of the shareholders of a Fund. In addition, the Funds will reject a redemption order if the order is not in proper form as described in the Authorized Participant Agreement or if the fulfillment of the order, in the opinion of its counsel, might be unlawful. Any such postponement, suspension or rejection could adversely affect a redeeming Authorized Participant. For example, the resulting delay may adversely affect the value of the Authorized Participant’s redemption proceeds if the NAV of the applicable Fund declines during the period of delay. The Funds disclaim any liability for any loss or damage that may result from any such suspension or postponement.

 

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An investor may be adversely affected by lack of independent advisers representing investors.

The Sponsor has consulted with counsel, accountants and other advisers regarding the formation and operation of the Funds. No counsel has been appointed to represent an investor in connection with the offering of the Shares. Accordingly, an investor should consult his, her, or its own legal, tax and financial advisers regarding the desirability of an investment in the Shares of a Fund. Lack of such consultation may lead to an undesirable investment decision with respect to investment in the Shares.

Possibility of termination of the Funds may adversely affect an investor’s portfolio.

The Sponsor may withdraw from the Funds upon 30 days’ notice, which would also cause the Funds to terminate unless a substitute sponsor were obtained. If the Sponsor withdraws, investors who wish to continue to invest in a Fund’s corresponding benchmark through a fund vehicle will have to find another vehicle, and may not be able to find another vehicle that offers the same features as such Fund.

The value of the Shares of each Fund relates directly to the value of, and realized profit or loss from, the Financial Instruments and other assets held by the Fund and fluctuations in the price of these assets could materially adversely affect an investment in the Shares.

With regard to the Commodity Index Funds or the Commodity Funds, several factors may affect the price of a commodity underlying a Commodity Index Fund or a Commodity Fund, and in turn, the Financial Instruments and other assets, if any, owned by such a Fund, including, but not limited to:

 

   

The recent proliferation of exchange traded products and their unknown effect on the commodity markets.

 

   

Large purchases or sales of physical commodities by the official sector. Governments and large institutions have large commodities holdings or may establish major commodities positions. For example, a significant portion of the aggregate world gold holdings is owned by governments, central banks and related institutions. Similarly, nations with centralized or nationalized oil production and organizations such as the Organization of Petroleum Exporting Countries control large physical quantities of crude oil. If one or more of these institutions decides to buy or sell any commodity in amounts large enough to cause a change in world prices, the price of Shares based upon a benchmark related to that commodity will be affected.

 

   

Other political factors. In addition to the organized political and institutional trading-related activities described above, peaceful political activity such as imposition of regulations or entry into trade treaties, as well as political disruptions caused by societal breakdown, insurrection and/or war may greatly influence commodities prices.

 

   

Significant increases or decreases in the available supply of a physical commodity due to natural or technological factors. Natural factors would include depletion of known cost-effective sources for a commodity or the impact of severe weather on the ability to produce or distribute the commodity. Technological factors, such as increases in availability created by new or improved extraction, refining and processing equipment and methods or decreases caused by failure or unavailability of major refining and processing equipment (for example, shutting down or constructing oil refineries), also materially influence the supply of commodities.

 

   

Significant increases or decreases in the demand for a physical commodity due to natural or technological factors. Natural factors would include such events as unusual climatological conditions impacting the demand for energy commodities. Technological factors may include such developments as substitutes for energy or other industrial commodities.

 

   

A significant increase or decrease in commodity hedging activity by commodity producers. Should there be an increase or decrease in the level of hedge activity of commodity producing

 

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companies, countries and/or organizations, it could cause a change in world prices of any given commodity, causing the price of Shares based upon a benchmark related to that commodity to be affected.

 

   

A significant change in the attitude of speculators and investors towards a commodity. Should the speculative community take a negative or positive view towards any given commodity, it could cause a change in world prices of any given commodity, the price of Shares based upon a benchmark related to that commodity will be affected.

The impact of changes in the price of a physical commodity will affect investors differently depending upon the Fund in which investors invest. Daily increases in the price of an underlying commodity will negatively impact the daily performance of Shares of an UltraShort Fund and daily decreases in the price of an underlying commodity will negatively impact the daily performance of Shares of an Ultra Fund. For information regarding how the volatility of an index can have a negative effect on performance over time, see “—Price volatility, which is exacerbated by the use of leverage, may possibly cause the total loss of an investor’s investment.”

With regard to the Currency Funds, several factors may affect the value of the foreign currencies or the U.S. Dollar, and in turn, the swap agreements, futures contracts, forward contracts thereof and other assets, if any, owned by a Fund, including, but not limited to:

 

   

Debt level and trade deficit of the relevant foreign countries;

 

   

Inflation rates of the United States and the relevant foreign countries and investors’ expectations concerning inflation rates;

 

   

Interest rates of the United States and the relevant foreign countries and investors’ expectations concerning interest rates;

 

   

Investment and trading activities of mutual funds, hedge funds and currency funds;

 

   

Global or regional political, economic or financial events and situations; and

 

   

Sovereign action to set or restrict currency conversion.

The impact of changes in the price of a currency will affect investors differently depending upon the Fund in which investors invest. Daily increases in the price of a currency will negatively impact the daily performance of Shares of an UltraShort Fund and daily decreases in the price of a currency will negatively impact the daily performance of Shares of an Ultra Fund. For information regarding how the volatility of an index can have a negative effect on performance over time, see “—Price volatility, which is exacerbated by the use of leverage, may possibly cause the total loss of an investor’s investment.”

The NAV may not always correspond to market price and, as a result, investors may be adversely affected by the creation or redemption of Creation Units at a value that differs from the market price of the Shares.

The NAV per share of the Shares of a Fund will change as fluctuations occur in the market value of the Fund’s portfolio. Investors should be aware that the public trading price of a number of Shares of a Fund otherwise amounting to a Creation Unit may be different from the NAV of an actual Creation Unit ( i.e. , 50,000 individual Shares may trade at a premium over, or a discount to, NAV of a Creation Unit of Shares) and similarly the public trading price per Share of the Fund may be different from the NAV per Share of the Fund. Consequently, an Authorized Participant may be able to create or redeem a Creation Unit of Shares of a Fund at a discount or a premium to the public trading price per Share of the Fund. This price difference may be due, in large part, to the fact that supply and demand forces at work in the secondary trading market for Shares of a Fund are closely related, but not identical, to the same forces influencing the price of an underlying commodity at any point in time. Investors also should note that the size of each Fund in terms of total assets held may change substantially over time and from time-to-time as Creation Units are created and redeemed.

 

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Authorized Participants or their clients or customers may have an opportunity to realize a riskless profit if they can purchase a Creation Unit at a discount to the public trading price of the Shares of a Fund or can redeem a Creation Unit at a premium over the public trading price of the Shares of the Fund. The Sponsor expects that the exploitation of such arbitrage opportunities by Authorized Participants and their clients and customers will tend to cause the public trading price to track NAV per Share of the Funds closely over time.

The value of a Share of a Fund may be influenced by nonconcurrent trading hours between the AMEX and the futures exchange on which the futures contracts underlying the applicable benchmark are traded. While the Shares of each Fund trade on the AMEX from 9:30 a.m. to 4:00 p.m. (Eastern Time), the futures contracts underlying a benchmark may be traded during different time frames. Consequently, liquidity in the futures contracts underlying the applicable benchmark will be reduced after the close of trading at the applicable commodities exchange. As a result, during the time when the AMEX is open and the applicable commodities exchange is closed, trading spreads and the resulting premium or discount on the Shares of a Fund may widen, and, therefore, increase the difference between the price of the Shares of a Fund and the NAV of such Shares.

Using leverage and/or short positions should be considered to be speculative and could result in the total loss of an investor’s investment.

The Funds use leveraged investment techniques in seeking to achieve their respective investment objectives. Leverage should cause a Fund to lose more money in market environments adverse to its daily investment objectives than a Fund that does not employ leverage, which could result in the total loss of an investor’s investment.

Because the Ultra and UltraShort Funds offered hereby include a 200% multiplier, a price movement of 50% or more in a relevant benchmark could result in the total loss of an investor’s investment if that price movement is contrary to the investment objective of the Fund in which an investor has invested. This would be the case with downward price movements in an Ultra Fund, even though the underlying benchmark would always have a value greater than zero. In addition to the leveraged risk in which a 50% upward move in a benchmark underlying an UltraShort Fund would result in the total loss of an investor’s investment, a benchmark could, in theory, rise infinitely, so a bearish swap agreement or short position in related futures or forward contracts would expose an UltraShort Fund to theoretically unlimited liability.

Because liability due to losses will be segregated to either an Ultra Fund or an UltraShort Fund, as applicable, losses to investors in one Ultra Fund from such exposure will not subject investors in the corresponding UltraShort Fund to such exposure, and vice versa.

Fewer representative commodities may result in greater benchmark volatility, which could adversely affect an investment in the Shares.

Each of the benchmark indices for the Commodity Index Funds is concentrated in terms of the number of commodities represented, and some of the sub-indexes are highly concentrated in a single commodity. The Commodity Funds and the Currency Funds are concentrated solely on their single benchmark physical commodity or currency. Investors should be aware that other commodities benchmarks are more diversified in terms of both the number and variety of commodities included. Concentration in fewer commodities may result in a greater degree of volatility in a benchmark and the NAV of the Fund which tracks a benchmark under specific market conditions and over time.

Failure of the commodity or the currency markets, as the case may be, to exhibit low to negative correlation to general financial markets will reduce benefits of diversification and may exacerbate losses to an investor’s portfolio.

Historically, returns of the commodity or currency markets, as the case may be, have tended to exhibit low to negative correlation with the returns of other assets such as stocks and bonds. Although commodity or currency futures trading can provide a diversification benefit to investor portfolios because of its low to negative correlation with other financial assets, the fact that a benchmark is not 100% negatively correlated with financial assets such as

 

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stocks and bonds means that each respective Fund cannot be expected to be automatically profitable during unfavorable periods for the stock or bond market, or vice versa. If the Shares perform in a manner that correlates with the general financial markets or do not perform successfully, investors will obtain no diversification benefits by investing in the Shares and the Shares may produce no gains to offset their losses from other investments. Furthermore, there is no historical data regarding the correlation of daily rebalanced leveraged and short investments in commodities and/or currencies to other asset classes.

Trading on commodity exchanges outside the United States is not subject to U.S. regulation and may result in different or diminished investor protections.

Some of the Funds’ trading may be conducted on commodity exchanges outside the United States. Trading on such exchanges is not regulated by any United States governmental agency and may involve certain risks not applicable to trading on United States exchanges, including different or diminished investor protections. In trading contracts denominated in currencies other than U.S. Dollars, the Shares are subject to the risk of adverse exchange rate movements between the dollar and the functional currencies of such contracts. Investors could incur substantial losses from trading on foreign exchanges which such investors would not have otherwise been subject had the Funds’ trading been limited to U.S. markets.

An investment in the Shares may be adversely affected by competition from other methods of investing in commodities or currencies.

A Fund constitutes a new, and thus untested, type of investment vehicle. A Fund competes with other financial vehicles, including other commodity or currency pools, as the case may be, hedge funds, traditional debt and equity securities issued by companies in the commodities or currency industry, other securities backed by or linked to such commodities or currency, and direct investments in the underlying commodities or currency or commodity or currency futures contracts. Market and financial conditions, and other conditions beyond the Sponsor’s control, may make it more attractive to invest in other financial vehicles or to invest in such commodities or currencies directly, which could limit the market for the Shares and reduce the liquidity of the Shares.

The presence of “contango” in the market prices of benchmark commodity future contracts will generally adversely affect the value of those Ultra Funds, and the presence of “backwardation” in the market prices of benchmark commodity future contracts will generally adversely affect the value of those UltraShort Funds.

As the futures contracts that underlie a benchmark near expiration, they are replaced by contracts that have a later expiration. Thus, for example, a contract purchased and held in August 2008 may specify an October 2008 expiration. For an Ultra Fund, as that contract nears expiration, it may be replaced by selling the October 2008 contract and purchasing the contract expiring in December 2008. This process is referred to as “rolling”. Rolling may have a positive or negative impact on performance. For example, historically, the prices of crude oil have frequently been higher for contracts with shorter-term expirations than for contracts with longer-term expirations, which is referred to as “backwardation.” In these circumstances, absent other factors, the sale of the October 2008 contract would take place at a price that is higher than the price at which the December 2008 contract is purchased, thereby creating a gain in connection with rolling. While crude oil has historically exhibited consistent periods of backwardation, backwardation will likely not exist in these markets at all times. The presence of contango (rather than backwardation) in crude oil at the time of rolling would be expected to adversely affect the Dow Jones—AIG Crude Oil Sub Index SM and thus would adversely affect the value of the Ultra DJ-AIG Crude Oil ProShares, which tracks daily changes in the value of the Dow Jones—AIG Crude Oil Sub Index SM, and positively affect the value of the UltraShort DJ-AIG Crude Oil ProShares which tracks daily changes in the value of the Dow Jones—AIG Crude Oil Sub Index SM . Similarly, the presence of contango in any other relevant benchmarks of a given Ultra Fund would adversely affect the value of that Ultra Fund and positively affect the value of an UltraShort Fund.

Conversely, gold, silver and certain agriculture units historically exhibit “contango” markets rather than backwardation. Contango markets are those in which the prices of contracts are higher in the distant delivery months than in the nearer delivery months due to the costs of long-term storage of a physical commodity prior to delivery or other factors. The presence of backwardation (rather than contango) at the time of rolling in relevant benchmarks of a given UltraShort Fund would be expected to adversely affect the value of that UltraShort Fund which tracks daily changes in the value of the relevant benchmark and positively affect the value of that Ultra Fund which tracks daily changes in the value of the relevant benchmark.

 

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Funds that are designed to track a multiple or inverse multiple of the daily performance of gold or silver bullion (Ultra Gold ProShares, UltraShort Gold ProShares, Ultra Silver ProShares and UltraShort Silver ProShares) will not invest in bullion itself as certain other exchange traded products do. Rather the funds will use Financial Instruments to gain exposure to these precious metals. Not investing directly in bullion may introduce additional tracking error and these funds will be subject to the effects of contango and backwardation described above.

Using Financial Instruments such as forwards and futures in an effort to replicate the performance of gold and silver bullion may introduce tracking error to the performance of the Funds. The primary cause of tracking error resulting from not investing directly in bullion is expected to be caused by the need to roll futures or forward contracts as described above and the resulting possibility that contango or backwardation can occur. Gold and silver historically exhibit contango markets during most periods. The existence of historically prevalent contango markets would be expected to adversely affect the Ultra Funds. Alternatively, the existence of backwardated markets in either silver or gold would have an adverse impact on the UltraShort Funds.

The Funds will be subject to counterparty risks, credit risks and other risks associated with swap agreements and forward contracts, which could result in significant losses to the Funds.

Some of the Funds currently contemplate the use of swap agreements and/or forward contracts as a means to achieve their investment objective. These investment vehicles are typically traded on a principal-to-principal basis through dealer markets that are dominated by major money center and investment banks and other institutions and are essentially unregulated by the CFTC. Investors, therefore, do not receive the protection of CFTC regulation or the statutory scheme of the CEA in connection with each Fund’s swap agreements or forward contracts. The markets rely upon the integrity of market participants in lieu of the additional regulation imposed by the CFTC on participants in the futures markets. The lack of regulation in these markets could expose investors to significant losses under certain circumstances including in the event of trading abuses or financial failure by participants.

Unlike in futures contracts, the counterparty to swap agreements or forward contracts is generally a single bank or other financial institution, rather than a clearing organization backed by a group of financial institutions. As a result, a Fund will be subject to credit risk with respect to the amount it expects to receive from counterparties to Financial Instruments entered into as part of that Fund’s principal investment strategy. If a counterparty becomes bankrupt or otherwise fails to perform its obligations due to financial difficulties, a Fund could suffer significant losses on these contracts and the value of an investor’s investment in a Fund may decline.

A Fund may experience significant delays in obtaining any recovery in a bankruptcy or other reorganization proceeding from a counterparty and a Fund may obtain only limited recovery or may obtain no recovery in such circumstances. The Funds typically enter into transactions with counterparties whose credit rating is investment grade, as determined by a nationally recognized statistical rating organization, or, if unrated, judged by the Sponsor to be of comparable quality.

Swaps or forward contracts have terms that make them less marketable than futures contracts. Swaps or forward contracts are less marketable because they are not traded on an exchange, do not have uniform terms and conditions, and are entered into based upon the creditworthiness of the parties and the availability of credit support, such as collateral, and in general, are not transferable without the consent of the counterparty.

Each Fund will seek to track a multiple or inverse multiple of a benchmark on a daily basis at all times even during periods in which the applicable benchmark is flat as well as when a benchmark is moving in a manner which causes a Fund’s NAV to decline, thereby causing losses to such Fund.

The Funds are not actively managed by traditional methods, which typically involve effecting changes in the composition of a portfolio on the basis of judgments relating to economic, financial and market considerations with a view toward obtaining positive results under all market conditions. Rather, the Sponsor will seek to cause the NAV to track, on a daily basis, a benchmark or in the case of the Ultra Funds or the UltraShort Funds a multiple of a Fund’s benchmark at all times, even during periods in which a benchmark is flat or moving in a manner which causes the NAV of the Funds to decline. It is possible to lose money over time when an underlying benchmark is up (down) for the corresponding Ultra (UltraShort) Fund due to the effects of daily rebalancing, volatility and compounding.

Investors who only invest in any one of an Ultra Fund or an UltraShort Fund may not be able to profit if the market value of the underlying benchmark moves against such investment.

An Ultra Fund is expected to rise as a result of any daily upward price movement in its underlying benchmark. An UltraShort Fund is expected to rise as a result of any daily downward price movement in a benchmark.

If the price of a relevant benchmark decreases on a given day, the corresponding UltraShort Fund should generally profit and the Ultra Fund should generally suffer a loss. If the price of a relevant benchmark increases on

 

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a given day, the corresponding Ultra Fund should generally profit and the UltraShort Fund should generally suffer a loss. Therefore, the investment experience of investors who plan to invest in any one of the Funds will depend upon selection of the appropriate Fund in light of the price movements of the underlying benchmark. Such selection may become unprofitable in the future if the price of the benchmark changes direction or may even become unprofitable over time regardless of index direction.

Certain investors who decide to invest in any combination of the Ultra Fund Shares or UltraShort Fund Shares relating to the same underlying benchmark may, nevertheless, suffer losses if the investor’s investment mix between the Ultra Fund Shares and the UltraShort Fund Shares is biased in one direction and the market price of the relevant benchmark moves in the opposite direction.

A Fund’s exposure to the commodities or currencies markets may subject the Fund to greater volatility than investments in traditional securities, which may adversely affect an investor’s investment in that Fund.

A Fund’s exposure to the commodities or currencies markets may subject the Fund to greater volatility than investments in traditional securities. The value of commodity-linked financial instruments or currency-linked financial instruments may be affected by changes in overall market movements, commodity or currency benchmark, as the case may be, volatility, changes in interest rates, or factors affecting a particular industry, commodity or currency, such as drought, floods, weather, livestock disease, embargoes, tariffs and international economic political and regulatory developments.

While close tracking of any Fund to its benchmark may be achieved on any single trading day, over time the cumulative percentage increase or decrease in the NAV of the Shares of a Fund may diverge significantly from the cumulative percentage decrease or increase in the relevant benchmark due to a compounding effect.

While the Funds do not expect that their daily returns will deviate adversely from their respective daily investment objectives, several factors may affect their ability to achieve this correlation. Among these factors are: (1) a Fund’s expenses, including fees, transaction costs and the cost of the investment techniques employed by that Fund (such as costs related to the purchase, sale and storage of the commodities or currencies and the cost of leverage, all of which may be embedded in financial instruments used by a Fund); (2) less than all of the commodities in the relevant benchmark index being held by a Commodity Index Fund or its weighting of investment exposure to such commodities being different from that of the relevant benchmark index; (3) an imperfect correlation between the performance of instruments held by a Fund, such as swaps, futures contracts and/or forward contracts, and the performance of the applicable underlying commodities indices, commodities or currencies in the cash market; (4) bid-ask spreads; (5) holding instruments traded in a market that has become illiquid or disrupted; (6) a Fund’s share prices being rounded to the nearest cent; (7) changes to a benchmark index that are not disseminated in advance; (8) the need to conform a Fund’s portfolio holdings to comply with investment restrictions or policies or regulatory or tax law requirements; (9) early and unanticipated closings of the markets on which the holdings of a Fund trade, resulting in the inability of the Fund to execute intended portfolio transactions. While close tracking of any Fund to its benchmark may be achieved on any single trading day, over time the cumulative percentage increase or decrease in the NAV of the Shares of a Fund may diverge significantly from the cumulative percentage decrease or increase in the relevant benchmark due to a compounding effect. The Funds do not seek to achieve their stated investment objective over a period of time greater than one day because mathematical compounding prevents the Funds from achieving such results. In addition, there is a special form of correlation risk that derives from the Ultra and UltraShort Funds’ use and daily rebalancing of leverage, which is that for periods greater than one day, the use and daily rebalancing of leverage tends to cause the performance of a Fund to be either greater than or less than the benchmark performance times the stated multiple in the fund objective, before accounting for fees and fund expenses.

Solely to illustrate this point, each of the three graphs simulates the one year performance of a benchmark compared with the performance of a fund that each day perfectly achieves its investment objective of twice (200%) the daily benchmark returns. The graphs demonstrate that, for periods greater than one day, a leveraged Fund is likely to underperform or overperform (but not match) the benchmark performance times the stated multiple in the fund objective. No representation is being made that any of the benchmarks or the Funds will or are likely to achieve the performance below.

 

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To isolate the impact of leverage, these graphs assume no fund expenses and borrowing/lending rates (to obtain required leverage) of zero percent. If fund expenses were included, the fund’s performance would be lower than that shown. Each of the graphs also assumes a volatility rate of 15%. A benchmark’s volatility rate is a statistical measure of the magnitude of fluctuations in the returns of a benchmark. Other benchmarks to which the Funds are benchmarked have different historical volatility rates; certain of the Funds’ benchmarks’ historical volatility rates are substantially in excess of 15%.

LOGO

Price volatility, which is exacerbated by the use of leverage, may possibly cause the total loss of an investor’s investment.

Swap agreements, futures and forward contracts have a high degree of price variability and are subject to occasional rapid and substantial changes, which will be magnified by the leveraged positions of the Funds. Consequently, investors could lose all or substantially all of their investment in a Fund.

Each of the Funds are “leveraged” funds in the sense that each has an investment objective to match a multiple or inverse multiple of the performance of a benchmark on a given day. These Funds are subject to the correlation risks described in the preceding risk factor. In addition, as described above, there is a special form of

 

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correlation risk that derives from these Funds’ use of leverage, which is that for periods greater than one day, the use of leverage tends to cause the performance of an Ultra or UltraShort Fund to be either greater than, or less than, the benchmark performance times the stated multiple in the fund objective.

The fund performance for a leveraged fund can be estimated given certain assumptions. The tables below illustrate the impact of two factors, benchmark volatility and benchmark performance, on a leveraged fund. Benchmark volatility is a statistical measure of the magnitude of fluctuations in the returns of a benchmark and is calculated as the standard deviation of the natural logarithms of one plus the benchmark return (calculated daily), multiplied by the square root of the number of trading days per year (assumed to be 252). The tables show estimated fund returns for a number of combinations of benchmark performance and benchmark volatility over a one year period. Assumptions used in the tables include: a) no fund expenses and b) borrowing/lending rates (to obtain leverage) of zero percent. If fund expenses were included, the fund’s performance would be lower than shown. The first table below shows an example in which a leveraged fund that has an investment objective to correspond to twice (200%) of the daily performance of a benchmark. The leveraged fund could be expected to achieve a 20% return on a yearly basis if the benchmark performance was 10%, absent any costs or the correlation risk or other factors described above. However, as the table shows, with a benchmark volatility of 20%, such a fund would return 16.3%, again absent any costs or other factors described above and in the Prospectus under “Correlation Risk.” In the charts below, areas shaded green represent those scenarios where a leveraged fund with the investment objective described will outperform ( i.e. , return more than) the benchmark performance times the stated multiple in the Fund’s investment objective; conversely areas shaded red represent those scenarios where the Fund will underperform ( i.e. , return less than) the benchmark performance times the stated multiple in the Fund’s investment objective.

Estimated Fund Return Over One Year When the Fund Objective is to Seek Daily Results, Before Fees and Expenses and Leverage Costs, that Correspond to Twice (200%) the Daily Performance of a Benchmark.

 

One Year Benchmark

Performance

  

200%

One Year Benchmark

Performance

   Benchmark Volatility  
      0%     5%     10%     15%     20%     25%     30%     35%     40%  
-40%    -80%    -64.0 %   -64.1 %   -64.4 %   -64.8 %   -65.4 %   -66.2 %   -67.1 %   -68.2 %   -69.3 %
-35%    -70%    -57.8 %   -57.9 %   -58.2 %   -58.7 %   -59.4 %   -60.3 %   -61.4 %   -62.6 %   -64.0 %
-30%    -60%    -51.0 %   -51.1 %   -51.5 %   -52.1 %   -52.9 %   -54.0 %   -55.2 %   -56.6 %   -58.2 %
-25%    -50%    -43.8 %   -43.9 %   -44.3 %   -45.0 %   -46.0 %   -47.2 %   -48.6 %   -50.2 %   -52.1 %
-20%    -40%    -36.0 %   -36.2 %   -36.6 %   -37.4 %   -38.5 %   -39.9 %   -41.5 %   -43.4 %   -45.5 %
-15%    -30%    -27.8 %   -27.9 %   -28.5 %   -29.4 %   -30.6 %   -32.1 %   -34.0 %   -36.1 %   -38.4 %
-10%    -20%    -19.0 %   -19.2 %   -19.8 %   -20.8 %   -22.2 %   -23.9 %   -26.0 %   -28.3 %   -31.0 %
-5%    -10%    -9.8 %   -10.0 %   -10.6 %   -11.8 %   -13.3 %   -15.2 %   -17.5 %   -20.2 %   -23.1 %
0%    0%    0.0 %   -0.2 %   -1.0 %   -2.2 %   -3.9 %   -6.1 %   -8.6 %   -11.5 %   -14.8 %
5%    10%    10.3 %   10.0 %   9.2 %   7.8 %   5.9 %   3.6 %   0.8 %   -2.5 %   -6.1 %
10%    20%    21.0 %   20.7 %   19.8 %   18.3 %   16.3 %   13.7 %   10.6 %   7.0 %   3.1 %
15%    30%    32.3 %   31.9 %   30.9 %   29.3 %   27.1 %   24.2 %   20.9 %   17.0 %   12.7 %
20%    40%    44.0 %   43.6 %   42.6 %   40.8 %   38.4 %   35.3 %   31.6 %   27.4 %   22.7 %
25%    50%    56.3 %   55.9 %   54.7 %   52.8 %   50.1 %   46.8 %   42.8 %   38.2 %   33.1 %
30%    60%    69.0 %   68.6 %   67.3 %   65.2 %   62.4 %   58.8 %   54.5 %   49.5 %   44.0 %
35%    70%    82.3 %   81.8 %   80.4 %   78.2 %   75.1 %   71.2 %   66.6 %   61.2 %   55.3 %
40%    80%    96.0 %   95.5 %   94.0 %   91.6 %   88.3 %   84.1 %   79.1 %   73.4 %   67.0 %

Estimated Fund Return Over One Year When the Fund Objective is to Seek Daily Results, Before Fees and Expenses, that Correspond to Twice (200%) the Inverse of the Daily Performance of a Benchmark.

 

One Year Benchmark

Performance

  

200% Inverse of

One Year Benchmark

Performance

   Benchmark Volatility  
      0%     5%     10%     15%     20%     25%     30%     35%     40%  

-40%

   80%    177.8 %   175.7 %   169.6 %   159.6 %   146.4 %   130.3 %   112.0 %   92.4 %   71.9 %

-35%

   70%    136.7 %   134.9 %   129.7 %   121.2 %   109.9 %   96.2 %   80.7 %   63.9 %   46.5 %

-30%

   60%    104.1 %   102.6 %   98.1 %   90.8 %   81.0 %   69.2 %   55.8 %   41.3 %   26.3 %

-25%

   50%    77.8 %   76.4 %   72.5 %   66.2 %   57.7 %   47.4 %   35.7 %   23.1 %   10.0 %

-20%

   40%    56.3 %   55.1 %   51.6 %   46.1 %   38.6 %   29.5 %   19.3 %   8.2 %   -3.3 %

-15%

   30%    38.4 %   37.4 %   34.3 %   29.4 %   22.8 %   14.7 %   5.7 %   -4.2 %   -14.4 %

-10%

   20%    23.5 %   22.5 %   19.8 %   15.4 %   9.5 %   2.3 %   -5.8 %   -14.5 %   -23.6 %

-5%

   10%    10.8 %   10.0 %   7.5 %   3.6 %   -1.7 %   -8.1 %   -15.4 %   -23.3 %   -31.4 %

0%

   0%    0.0 %   -0.7 %   -3.0 %   -6.5 %   -11.3 %   -17.1 %   -23.7 %   -30.8 %   -38.1 %

5%

   -10%    -9.3 %   -10.0 %   -12.0 %   -15.2 %   -19.6 %   -24.8 %   -30.8 %   -37.2 %   -43.9 %

10%

   -20%    -17.4 %   -18.0 %   -19.8 %   -22.7 %   -26.7 %   -31.5 %   -36.9 %   -42.8 %   -48.9 %

15%

   -30%    -24.4 %   -25.0 %   -26.6 %   -29.3 %   -32.9 %   -37.3 %   -42.3 %   -47.6 %   -53.2 %

20%

   -40%    -30.6 %   -31.1 %   -32.6 %   -35.1 %   -38.4 %   -42.4 %   -47.0 %   -51.9 %   -57.0 %

25%

   -50%    -36.0 %   -36.5 %   -37.9 %   -40.2 %   -43.2 %   -46.9 %   -51.1 %   -55.7 %   -60.4 %

30%

   -60%    -40.8 %   -41.3 %   -42.6 %   -44.7 %   -47.5 %   -50.9 %   -54.8 %   -59.0 %   -63.4 %

35%

   -70%    -45.1 %   -45.5 %   -46.8 %   -48.7 %   -51.3 %   -54.5 %   -58.1 %   -62.0 %   -66.0 %

40%

   -80%    -49.0 %   -49.4 %   -50.5 %   -52.3 %   -54.7 %   -57.7 %   -61.1 %   -64.7 %   -68.4 %

 

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The foregoing tables are intended to isolate the effect of benchmark volatility and benchmark performance on the return of a leveraged fund. The Funds’ actual returns may be significantly greater or less than the returns shown above as a result of any of the factors discussed above or under the preceding risk factor describing correlation risks.

Fees are charged regardless of profitability and may result in depletion of assets.

Each Fund indirectly is subject to the fees and expenses described herein which are payable irrespective of profitability. Such fees and expenses include asset-based fees of 0.95% per annum of the average daily NAV of such Fund. Additional charges may include other fees as applicable. The Index will reflect the performance of its underlying commodities, including roll costs, without regard to income earned on cash positions.

Possible illiquid markets may exacerbate losses.

Swap agreements and forward contracts may entail breakage costs if terminated prior to the final maturity date and futures positions cannot always be liquidated at the desired price. It is difficult to execute a trade at a specific price when there is a relatively small volume of buy and sell orders in a market. A market disruption, such as when governments may take or be subject to political actions which disrupt the markets in their major commodities exports and imports, can also make it difficult to liquidate a position or find a swap or forward contract counterparty at a reasonable cost.

There can be no assurance that market illiquidity will not cause losses for the Funds. The large size of the positions which the Funds may acquire increases the risk of illiquidity by both making their positions more difficult to liquidate and increasing the losses incurred while trying to do so. Any type of disruption or illiquidity will be exacerbated due to the fact that the Funds only invest in Financial Instruments related to one commodity.

Competing claims of intellectual property rights may adversely affect the Funds and an investment in the Shares.

Parties throughout the financial industry could be granted patent applications that would limit the use of methods and systems for creating and administering interests in commodity and currency pools, as well as other elements of the Trust’s exchange-traded funds structure, any or all of which could impede the Funds from achieving their investment objectives.

Although the Sponsor does not anticipate that such filings will adversely impact the Funds, it is impossible to provide definite assurances that no such negative impact will occur. Further, it is not possible to predict whether a patent will issue at all, nor, if a patent is issued, what subject matter it will cover. The Sponsor believes that it has properly licensed or obtained the appropriate consent of all necessary parties with respect to intellectual property rights. However, other third parties may allege ownership as to such rights and may bring an action in asserting their claims. To the extent any action is brought by a third party asserting such rights, the expenses in litigating, negotiating, cross-licensing or otherwise settling such claims may adversely affect the Funds.

 

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Investors may be adversely affected by an overstatement or understatement of the NAV calculation of a Fund due to the valuation method employed when a settlement price is not available on the date of NAV calculation.

Calculating the NAV of each Fund includes, in part, any unrealized profits or losses on open swap agreements, futures or forward contracts. Under normal circumstances, the NAV of each Fund will reflect its corresponding benchmark and therefore, the settlement price of relevant baskets of open futures contracts on the date when the NAV is being calculated. However, if a futures contract traded on an exchange could not be purchased or sold on a day when a Fund is accepting creation and redemption orders (due to the operation of daily limits or other rules of the exchange or otherwise), a Fund may be improperly exposed which could cause it to fail to meet its stated investment objective. Alternatively, the Fund may attempt to calculate the fair value of such instruments. In such a situation, there is a risk that the calculation of the relevant benchmark, and therefore, the NAV of the applicable Fund on such day, may not accurately reflect the realizable market value of the futures contracts underlying such benchmark.

Risks Related to the Funds’ Shares

The lack of active trading markets for the Shares of a Fund may result in losses on investors’ investments at the time of disposition of his, her, or its Shares.

Although the Sponsor anticipates that the Shares of each Fund will be listed and traded on the AMEX, there can be no guarantee that an active trading market for the Shares of any Fund will develop or be maintained. If investors need to sell their Shares at a time when no active market for them exists, the price investors receive for their Shares, assuming that investors are able to sell them, likely will be lower than the price that investors would receive if an active market did exist.

The Shares of each Fund are new securities products and their value could decrease if unanticipated operational or trading problems arise.

The mechanisms and procedures governing the creation, redemption and offering of the Shares have been developed specifically for these securities products. Consequently, there may be unanticipated problems or issues with respect to the mechanics of the operations of the Funds and the trading of the Shares that could have a material adverse effect on an investment in the Shares. In addition, although the Funds are not actively “managed” by traditional methods, to the extent that unanticipated operational or trading problems or issues arise, the Sponsor’s past experience and qualifications may not be suitable for solving these problems or issues.

The liquidity of the Shares may also be affected by the withdrawal from participation of Authorized Participants, which could adversely affect the market price of the Shares.

In the event that one or more Authorized Participants which have substantial interests in the Shares withdraw from participation, the liquidity of the Shares will likely decrease, which could adversely affect the market price of the Shares and result in investors incurring a loss on their investment.

Shareholders that are not Authorized Participants may only purchase or sell their Shares in secondary trading markets, and the conditions associated with trading in secondary markets may adversely affect investors’ investment in the Shares.

Only Authorized Participants may create or redeem Creation Units. All other investors that desire to purchase or sell Shares must do so through the AMEX or in other markets, if any, in which the Shares may be traded.

AMEX may halt trading in the Shares of a Fund which would adversely impact investors’ ability to sell Shares.

Trading in Shares of a Fund may be halted due to market conditions or, in light of AMEX rules and procedures, for reasons that, in the view of the AMEX, make trading in Shares of a Fund inadvisable. In addition, trading is subject to trading halts caused by extraordinary market volatility pursuant to “circuit breaker” rules that

 

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require trading to be halted for a specified period based on a specified market decline. There can be no assurance that the requirements necessary to maintain the listing of the Shares of a Fund will continue to be met or will remain unchanged. A Fund will be terminated if the Shares are delisted.

Shareholders will not have the protections associated with ownership of shares in an investment company registered under the 1940 Act.

None of the Funds are either registered as an investment company under the 1940 Act or required to register under such Act. Consequently, shareholders will not have the regulatory protections provided to investors in investment companies and regulated investment companies.

Shareholders do not have the rights enjoyed by investors in certain other vehicles and may be adversely affected by a lack of statutory rights and by limited voting and distribution rights.

The Shares have limited voting and distribution rights (for example, shareholders do not have the right to elect directors and the Funds are not required to pay regular distributions, although the Funds may pay distributions at the discretion of the Sponsor).

The value of the Shares will be adversely affected if the Funds are required to indemnify the Trustee or the Sponsor.

Under the Trust Agreement, the Trustee and the Sponsor have the right to be indemnified for any liability or expense incurred without gross negligence or willful misconduct. That means the Sponsor may require the assets of a Fund to be sold in order to cover losses or liability suffered by it or by the Trustee. Any sale of that kind would reduce the NAV of one or more Funds.

Although the Shares of each Fund are limited liability investments, certain circumstances such as bankruptcy of a Fund or indemnification of a Fund by the shareholder will increase a shareholder’s liability.

The Shares of each Fund are limited liability investments; investors may not lose more than the amount that they invest plus any profits recognized on their investment. However, shareholders could be required, as a matter of bankruptcy law, to return to the estate of a Fund any distribution they received at a time when such Fund was in fact insolvent or in violation of its Trust Agreement.

A court could potentially conclude that the assets and liabilities of one Fund are not segregated from those of another Fund and thereby potentially exposing assets in one Fund to the liabilities of another Fund.

Each Fund is a separate series of a Delaware statutory trust and not itself a separate legal entity. Section 3804(a) of the Delaware Statutory Trust Act provides that if certain provisions are in the formation and governing documents of a statutory trust organized in series and if separate and distinct records are maintained for any series and the assets associated with that series are held in separate and distinct records (directly or indirectly, including through a nominee or otherwise) and accounted for in such separate and distinct records separately from the other assets of the statutory trust, or any series thereof, then the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular series are enforceable against the assets of such series only, and not against the assets of the statutory trust generally or any other series thereof and none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the statutory trust generally or any other series thereof shall be enforceable against the assets of such series. The Sponsor is not aware of any court case that has interpreted Section 3804(a) or provided any guidance as to what is required for compliance. The Sponsor intends to maintain separate and distinct records for each Fund and account for them separately but it is possible a court could conclude that the methods used did not satisfy Section 3804(a) of the Delaware Statutory Trust Act and thus potentially expose assets in one Fund to the liabilities of another Fund.

 

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With respect to the Currency Funds, substantial purchases or sales of a foreign currency by the official sector of the relevant foreign country could adversely affect an investment in the Shares.

The official sector consists of central banks, other governmental agencies and multi-lateral institutions that buy, sell and hold foreign currencies as part of their reserve assets. The official sector holds a significant amount of foreign currencies that can be mobilized in the open market. In the event that future economic, political or social conditions or pressures require members of the official sector to buy or sell their currency simultaneously or in an uncoordinated manner, the demand for the foreign currency might not be sufficient to accommodate the sudden change in the supply of the foreign currency to the market. Consequently, the price of the foreign currency could decline, which would adversely affect an investment in the corresponding Ultra ProShares, or increase, which would adversely affect an investment in the corresponding UltraShort ProShares.

Shareholders of each Fund will be subject to taxation on their share of the Fund’s taxable income, whether or not they receive cash distributions.

Shareholders of each Fund will be subject to United States federal income taxation and, in some cases, state, local, or foreign income taxation on their share of the Fund’s taxable income, whether or not they receive cash distributions from the Fund. Shareholders of a Fund may not receive cash distributions equal to their share of the Fund’s taxable income or even the tax liability that results from such income.

Investors could be adversely affected if items of income, gain, deduction, loss and credit with respect to Shares of a Fund are reallocated in the event that the IRS does not accept the assumptions or conventions used by the Fund in allocating Fund tax items.

U.S. federal income tax rules applicable to partnerships are complex and often difficult to apply to publicly traded partnerships. Each Fund will apply certain assumptions and conventions in an attempt to comply with applicable rules and to report income, gain, deduction, loss and credit to shareholders of a Fund in a manner that reflects shareholders’ beneficial shares of partnership items, but these assumptions and conventions may not be in compliance with all aspects of applicable tax requirements. It is possible that the IRS will successfully assert that the conventions and assumptions used by a Fund do not satisfy the technical requirements of the Code and/or Treasury regulations and could require that items of income, gain, deduction, loss or credit be adjusted or reallocated in a manner that adversely affects investors.

Investors could be adversely affected if the current treatment of long-term capital gains under current U.S. federal income tax law is changed or repealed in the future.

Under current law, long-term capital gains are taxed to non-corporate investors at a maximum United States federal income tax rate of 15%. This tax treatment may be adversely affected, changed or repealed by future changes in tax laws at any time and is currently scheduled to expire for tax years beginning after December 31, 2010.

PROSPECTIVE INVESTORS ARE STRONGLY URGED TO CONSULT THEIR OWN TAX ADVISERS AND COUNSEL WITH RESPECT TO THE POSSIBLE TAX CONSEQUENCES TO THEM OF AN INVESTMENT IN THE SHARES OF A FUND; SUCH TAX CONSEQUENCES MAY DIFFER IN RESPECT OF DIFFERENT INVESTORS.

Risks Related to Regulatory Requirements and Potential Legislative Changes

The Funds will be subject to regulatory risk associated with futures contracts that could adversely affect the Funds’ operations and profitability and cause conflicts of interest.

The CFTC and the U.S. commodities exchanges have established limits referred to as “speculative position limits” on the maximum net long or short speculative futures positions that any person may hold or control in derivatives traded on U.S. commodities exchanges. All accounts owned or managed by the commodity trading advisers, their principals and their affiliates will be combined for position limit purposes. Because futures position

 

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limits allow a commodity trading advisor and its principals to control only a limited number of contracts in any one commodity, the Sponsor and its principals are potentially subject to a conflict among the interests of all accounts the Sponsor and its principals control which are competing for shares of that limited number of contracts. Although the Sponsor may be able to achieve the same performance results with OTC substitutes for futures contracts, the OTC market may be subject to differing prices, lesser liquidity and greater counterparty credit risks than the regulated U.S. commodities exchanges. The Sponsor may in the future reduce the size of positions that would otherwise be taken for a Fund or not trade in certain markets on behalf of the Funds in order to avoid exceeding such limits. Modification of trades that would otherwise be made by a Fund, if required, could adversely affect the Fund’s operations and profitability. A violation of speculative position limits by the Sponsor could lead to regulatory action materially adverse to a Fund’s prospects for profitability.

It is possible that in the future, the CFTC may propose new rules with respect to such position limits for traders engaged in trading that is neither for speculative nor bona fide hedging purposes in accordance with existing CFTC requirements. Depending on the outcome of any future CFTC rulemaking, the rules concerning position limits may be amended in a manner that is either detrimental or favorable to the Funds. For example, if the amended rules are detrimental to a Fund, the Fund’s ability to issue new Creation Units or to reinvest income in additional commodity futures contracts may be limited to the extent these activities would cause the Fund to exceed the applicable position limits. Limiting the size of the Fund may affect the correlation between the price of the Shares, as traded on the AMEX, and the NAV of the Fund. That is, the inability to create additional Creation Units could result in Shares in the Fund trading at a premium or discount to NAV of the Fund.

Failure of FCMs to segregate assets may increase losses in the Funds.

The CEA requires a clearing broker to segregate all funds received from customers from such broker’s proprietary assets. There is a risk that assets deposited by the Sponsor on behalf of each Fund as margin with the FCM may, in certain circumstances, be used to satisfy losses of other clients of the FCM which cannot be satisfied by such other clients or by the FCM. If the FCM fails to segregate the funds received from the Sponsor, the assets of the Funds might not be fully protected in the event of the FCM’s bankruptcy. Furthermore, in the event of the FCM’s bankruptcy, any Fund Shares could be limited to recovering only a pro rata share of all available funds segregated on behalf of the FCM’s combined customer accounts, even though certain property specifically traceable to a particular Fund was held by the FCM. The FCM may, from time-to-time, have been the subject of certain regulatory and private causes of action.

In the event of a bankruptcy or insolvency of any exchange or a clearing house, a Fund could experience a loss of the funds deposited through its FCM as margin with the exchange or clearing house, a loss of any profits on its open positions on the exchange, and the loss of unrealized profits on its closed positions on the exchange.

Regulatory changes or actions may alter the operations and profitability of the Funds.

Considerable regulatory attention has been focused on non-traditional investment pools which are publicly distributed in the United States. There is a possibility of future regulatory changes altering, perhaps to a material extent, the nature of an investment in the Funds or the ability of the Funds to continue to implement their investment strategies.

The futures markets are subject to comprehensive statutes, regulations, and margin requirements. In addition, the CFTC and the exchanges are authorized to take extraordinary actions in the event of a market emergency, including, for example, the retroactive implementation of speculative position limits or higher margin requirements, the establishment of daily price limits and the suspension of trading. The regulation of swaps and futures transactions in the United States is a rapidly changing area of law and is subject to modification by government and judicial action. The effect of any future regulatory change on the Funds is impossible to predict, but could be substantial and adverse.

 

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Legislative changes are being proposed that could make it more difficult, if not impossible, for the Funds to operate.

In June 2008, the Chairman of the Senate’s government affairs committee unveiled a series of restrictive proposals aimed at financial speculators in commodities. The most severe would prohibit private and public pension funds with more than $500 million in assets from investing in agricultural and energy commodities traded on a U.S. futures exchange, foreign exchange or OTC. A second plan would direct the CFTC to establish total limits on the share of the commodity market held by financial investors. A third proposal would direct the CFTC to impose speculative-position limits on any stakes not related to real hedging activities.

In July 2008, the Senate’s Majority Leader introduced a bill in an effort to curb excessive speculation and increase transparency and accountability in the oil and gas markets. The aim of the bill is also to prevent traders from “gaming” these markets. The bill proposes to increase the resources and authority of the CFTC to detect, prevent and punish price manipulation and excessive speculation of energy commodities. The bill attempts to distinguish legitimate hedge fund trading from all other trading in energy commodities by defining hedge fund trading as transactions that involve the future delivery of an actual physical energy commodity. Any trading that does not involve the physical delivery of an energy commodity would be subject to speculative position limits established by the CFTC. The bill also requires institutional traders that engage in OTC transactions to keep detailed records so that the CFTC can determine if price manipulation or excessive speculation is taking place. If the CFTC determines that such trading has resulted in a major market disturbance, the bill authorizes the CFTC to take remedial action, including the liquidation of OTC contracts. In addition, the bill attempts to increase the transparency of index trading by requiring the CFTC to routinely collect detailed information from index traders and swap dealers. To further reduce speculation, the bill aims to close the so-called London Loophole that appears to permit excessive speculation through unregulated foreign exchanges. On July 25, 2008, the bill was blocked by a vote of the Senate which prevented the bill from being considered on the Senate floor. The Senate is currently considering various amendments which would allow the bill to proceed to a vote at a future date.

Another bill aimed at preventing excessive speculation in oil and other futures was introduced by the Chair of the House Committee on Agriculture on July 30, 2008. This bill failed to pass by a vote in the House. The sponsor of the bill has stated that he will attempt to call for a new vote on the bill in September.

If any of these proposals were to be enacted into law in their current form, it could negatively impact the ability of investors to invest in the Funds and, consequently, for the Sponsor to manage the Funds.

 

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INVESTMENT OBJECTIVES AND PRINCIPAL INVESTMENT STRATEGIES

Investment Objectives

Investment objectives of the “Ultra ProShares”:

Each “Ultra” Fund will seek daily investment results (before fees and expenses) that correspond to twice (200%) the daily performance, whether positive or negative, of its corresponding benchmark. Expenses may include, among other things, costs related to the purchase, sale and storage of commodities or currencies and the cost of leverage, all of which may be embedded in financial instruments used by that Fund. If an “Ultra” Fund is successful in meeting its objective, its value on a given day (before fees and expenses) should gain approximately twice as much on a percentage basis as its corresponding benchmark when the benchmark rises on a given day. Conversely, its value on a given day (before fees and expenses) should lose approximately twice as much on a percentage basis as the corresponding benchmark when the benchmark declines on a given day. An Ultra Fund will acquire long exposure in any one of or combinations of Financial Instruments, including Financial Instruments with respect to the applicable Ultra Fund’s benchmark such that each Ultra Fund has approximately 200% exposure to the corresponding benchmark at the time of the NAV calculation.

Investment objectives of the “UltraShort ProShares”:

Each “UltraShort” Fund will seek daily investment results (before fees and expenses) that correspond to twice (200%) the inverse (opposite) of the daily performance, whether positive or negative, of its corresponding benchmark. Expenses may include, among other things, expenses related to the purchase, sale and storage of commodities or currencies and the cost of leverage, all of which may be embedded in financial instruments used by that Fund. If an “UltraShort” Fund is successful in meeting its objective, its value on a given day (before fees and expenses) should gain approximately twice as much on a percentage basis as its corresponding benchmark when the benchmark falls on a given day. Conversely, its value on a given day (before fees and expenses) should lose approximately twice as much on a percentage basis as the corresponding benchmark when the benchmark rises on a given day. An UltraShort Fund will acquire short exposure in any one of or combinations of Financial Instruments, including Financial Instruments with respect to the applicable UltraShort Fund’s benchmark such that each UltraShort Fund has approximately 200% exposure to the corresponding benchmark at the time of the NAV calculation.

There can be no assurance that any Fund will achieve its investment objective or avoid substantial losses.

The corresponding benchmark for each Fund is listed below:

Ultra DJ-AIG Commodity ProShares and UltraShort DJ-AIG Commodity ProShares : The Dow Jones—AIG Commodity Index.

Ultra DJ-AIG Agriculture ProShares and UltraShort DJ-AIG Agriculture ProShares : The Dow Jones—AIG Agriculture Sub-Index.

Ultra DJ-AIG Crude Oil ProShares and UltraShort DJ-AIG Crude Oil ProShares : The Dow Jones—AIG Crude Oil Sub-Index SM .

Ultra Gold ProShares and UltraShort Gold ProShares : the daily performance of gold bullion as measured by the U.S. Dollar p.m. fixing price for delivery in London.

Ultra Silver ProShares and UltraShort Silver ProShares : the daily performance of silver bullion as measured by the U.S. Dollar fixing price for delivery in London.

Ultra Euro ProShares and UltraShort Euro ProShares : the 4:00 p.m. (Eastern Time) spot price of the Euro versus the U.S. Dollar using Euro exchange rate, expressed in terms of U.S. Dollars per unit of foreign currency.

 

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Ultra Yen ProShares and UltraShort Yen ProShares : the 4:00 p.m. (Eastern Time) spot price of the Japanese yen versus the U.S. Dollar using the Japanese yen exchange rate, expressed in terms of U.S. Dollars per unit of foreign currency.

Principal Investment Strategies

In seeking to achieve each Fund’s investment objective, the Sponsor uses a mathematical approach to investing. Using this approach, the Sponsor determines the type, quantity and mix of investment positions that the Sponsor believes in combination should produce daily returns consistent with a Fund’s objective. The Sponsor relies upon a pre-determined model to generate trading signals. It is currently contemplated that each Fund will invest principally in any one of or combinations of Financial Instruments, including swap agreements, futures contracts, options on futures contracts or forward contracts with respect to the applicable Fund’s benchmark to the extent determined appropriate by the Sponsor. Assets of each Fund not invested in Financial Instruments will be invested in cash equivalents (such as shares of money market funds, bank deposits, bank money market accounts, certain variable rate-demand notes and repurchase agreements collateralized by government securities, whether denominated in U.S. or the applicable foreign currency with respect to a Currency Fund) that will serve as collateral for the Financial Instruments.

The Sponsor does not invest the assets of the Funds in Financial Instruments or other assets based on its view of the investment merit of a particular investment, nor does it conduct conventional commodity or currency research or analysis, or forecast market movement or trends, in managing the assets of the Funds. Each Fund seeks to remain fully invested at all times in securities and/or financial instruments that provide exposure to the Fund’s underlying benchmark without regard to market conditions, trends or direction.

For the Commodity Index Funds, a Fund may hold through Financial Instruments a representative sample of the components in the underlying index, which has aggregate characteristics similar to those of the underlying index. This “sampling” process typically involves selecting a representative sample of components in an index principally to enhance liquidity and reduce transaction costs while seeking to maintain high correlation with, and similar aggregate characteristics (e.g., underlying commodities and valuations) to, the underlying index. In addition, a Fund may obtain exposure to components not included in the underlying index, invest in assets that are not included in the underlying index or may overweight or underweight certain components contained in the underlying index.

Swap Agreements

Swap agreements are two-party contracts entered into primarily by institutional investors for a specified period ranging from a day to more than a year. In a standard swap transaction, the parties agree to exchange the returns on a particular predetermined investment, instrument or index. The gross returns to be exchanged are calculated with respect to a notional amount and the benchmark returns to which the swap is linked. Swaps are usually entered into on a net basis, that is, the two payment streams are netted out in a cash settlement on the payment date or dates specified in the agreement with the parties receiving or paying, as the case may be, only the net amount of the two payments. In a typical swap agreement entered into by an Ultra Fund, the Ultra Fund would be entitled to settlement payments in the event the benchmark increases and would be required to make payments to the swap counterparty in the event the benchmark decreases. In a typical swap agreement entered into by an UltraShort Fund, the UltraShort Fund would be required to make payments to the swap counterparty in the event the benchmark increases and would be entitled to settlement payments in the event the benchmark decreases.

Forward Contracts

A forward contract is a contractual obligation to purchase or sell a specified quantity of a commodity or currency at or before a specified date in the future at a specified price and, therefore, is economically similar to a futures contract. Unlike futures contracts, however, forward contracts are typically traded in the OTC markets and are not standardized contracts. Forward contracts for a given commodity or currency are generally available for various amounts and maturities and are subject to individual negotiation between the parties involved. Moreover, generally there is no direct means of offsetting or closing out a forward contract by taking an offsetting position as one would a futures contract on a U.S. exchange. If a trader desires to close out a forward contract position, he generally will establish

 

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an opposite position in the contract but will settle and recognize the profit or loss on both positions simultaneously on the delivery date. Thus, unlike in the futures contract market where a trader who has offset positions will recognize profit or loss immediately, in the forward market a trader with a position that has been offset at a profit will generally not receive such profit until the delivery date, and likewise a trader with a position that has been offset at a loss will generally not have to pay money until the delivery date. In recent years, however, the terms of forward contracts have become more standardized, and in some instances such contracts now provide a right of offset or cash settlement as an alternative to making or taking delivery of the underlying commodity or currency.

The forward markets are largely unregulated. Forward contracts are, in general, not cleared or guaranteed by a third party.

The forward markets provide what has typically been a highly liquid market for foreign exchange trading, and in certain cases the prices quoted for foreign exchange forward contracts may be more favorable than the prices for foreign exchange futures contracts traded on U.S. exchanges. The forward markets are largely unregulated. Forward contracts are, in general, not cleared or guaranteed by a third party. Commercial banks participating in trading foreign exchange forward contracts often do not require margin deposits, but rely upon internal credit limitations and their judgments regarding the creditworthiness of their counterparties. In recent years, however, many OTC market participants in foreign exchange trading have begun to require that their counterparties post margin.

Options on Forward Contracts

An option on a forward contract gives the buyer of the option the right, but not the obligation, to take a position at a specified price (the strike price) in the underlying forward contract. Options on forward contracts are individually negotiated between counterparties and are generally traded in the OTC market. Thus, options on forward contracts possess many of the same characteristics of forward contracts relating to offsetting positions and credit risk that are described above.

The buyer of a call option purchases the right, but not the obligation, to purchase the underlying interest at a specified price. The buyer of a put option purchases the right, but not the obligation, to sell the underlying interest at a specified price. The seller of an option is obligated to take a position in the underlying interest opposite the buyer of the option if the option is exercised. Therefore, the seller of a call option must sell the underlying interest to the buyer of the call option if the buyer chooses to exercise the option. Conversely, the seller of a put option must buy the underlying interest from the buyer of the put option if the buyer chooses to exercise the option.

A call option is considered to be in-the-money if the strike price is below the current market price and out-of-the-money if the strike price is above the current market price. A put option, on the other hand, is considered to be in-the-money if the strike price is above the current market price and out-of-the-money if the strike price is below the current market price. Options typically have limited life spans, which are tied to the delivery or settlement date of the underlying interest. Unexercised options on forwards contracts become worthless at the time of expiration.

Losses to the buyer of an option are limited to the amount paid for the option. Sellers of options, however, face risk similar to that of participants in the forwards markets. For example, the seller of a call option is subject to the same risk as a person who initially sold a forward contract, offset only by the amount received by selling the option.

Futures Contracts

A futures contract is a standardized contract traded on, or subject to the rules of, an exchange that calls for the future delivery of a specified quantity and type of a commodity at a specified time and place. Futures contracts are traded on a wide variety of commodities, including bonds, interest rates, agricultural products, stock indices, currencies, energy and metals. The size and length of futures contracts on a particular commodity are identical and are not subject to any negotiation, other than with respect to price and the number of contracts traded between the buyer and seller.

 

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The contractual obligations of a buyer or seller may generally be satisfied by taking or making physical delivery of the underlying commodity or by making an offsetting sale or purchase of an identical futures contract on the same or linked exchange before the designated date of delivery. The difference between the price at which the futures contract is purchased or sold and the price paid for the offsetting sale or purchase, after allowance for brokerage commissions, constitutes the profit or loss to the trader. Some futures contracts, such as stock index contracts and certain electronically traded commodity contracts, settle in cash (reflecting the difference between the contract purchase/sale price and the contract settlement price) rather than by delivery of the underlying commodity.

Options on Futures Contracts

Options on futures contracts operate in a manner similar to options on forward contracts. An option on a futures contract gives the buyer the right, but not the obligation, to take a position at a specified price in the underlying futures contract. Unlike options on forward contracts, however, options on futures contracts are standardized contracts traded on an exchange. Furthermore, in-the-money options on futures contracts on certain exchanges are automatically exercised on their expiration date.

Options on Currencies

Options on currencies grant the holder the right, but not the obligation, to buy or sell currency at a specified exchange rate during a specified period of time.

Supplemental Information About Financial Instruments and Commodities Markets

Participants

The two broad classes of persons who trade futures interest contracts are hedgers and speculators. Financial institutions that manage or deal in interest rate sensitive instruments, foreign currencies and stocks, and commercial market participants, including farmers and manufacturers, that market or process commodities, and which are exposed to currency, interest rate and stock market risks, may use the futures markets for hedging. Hedging is a protective procedure designed to minimize losses that may occur due to an adverse movement in the price of the underlying commodity, such as the adverse price movement between the time a farmer or manufacturer enters into a contract to buy or sell a commodity at a certain price and the time he must perform his obligations under the contract. The futures market enables the hedger to transfer the risk of price fluctuations to the speculator. The usual objective of the hedger is to protect the profit that he expects to earn from his operations rather than to profit in his trading. The speculator, on the other hand, risks his capital in an attempt to make profits from price fluctuations in the commodities. Speculators rarely make or take delivery of the commodities underlying their contracts, but rather close out their positions by entering into offsetting purchases or sales of contracts prior to the delivery date. Since the speculator may take either a long or short position in the futures markets, it is possible for him to make profits or incur losses regardless of whether prices go up or down.

U.S. Futures Exchanges

Futures exchanges provide centralized market facilities for trading futures contracts and options (but not forward contracts) in which multiple persons have the ability to execute or trade contracts by accepting bids and offers from multiple participants. Members of, and trades executed on, a particular exchange are subject to the rules of that exchange. Among the principal exchanges in the United States are the Chicago Board of Trade (“CBOT”), the Chicago Mercantile Exchange (“CME”), the NYMEX, and the Intercontinental Exchange (“ICE”)/New York Board of Trade (“NYBOT”).

Each futures exchange in the United States has an associated “clearing house.” Clearing houses provide services designed to transfer credit risk and ensure the integrity of trades. Once trades between members of an exchange have been confirmed or cleared, the clearing house becomes substituted for each buyer and each seller of contracts traded on the exchange and, in effect, becomes the other party to each trader’s open position in the market. Thereafter, each party to a trade looks only to the clearing house for performance. The clearing house generally establishes some sort of security or guarantee fund to which all clearing members of the exchange must contribute. This fund acts as an emergency buffer which is intended to enable the clearing house to meet its obligations with regard to the other side of an insolvent clearing member’s contracts. Furthermore, clearing houses require margin deposits and continuously mark positions to market to provide some assurance that their members will be able to fulfill their contractual obligations. Thus, members effecting futures transactions on an organized exchange do not bear the risk of the insolvency of the party on the opposite side of the trade; their credit risk is limited to the respective solvencies of their commodity broker and the clearing house. The clearing house “guarantee” of performance on open positions does not run to customers. If a member firm goes bankrupt, customers could lose money.

 

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Non-U.S. Futures Exchanges

Foreign futures exchanges differ in certain respects from their U.S. counterparts. Non-U.S. futures exchanges are not subject to regulation by the CFTC. In contrast to U.S. exchanges, certain foreign exchanges are “principals’ markets,” where trades remain the liability of the traders involved, and the exchange or an affiliated clearing house, if any, does not become substituted for any party. Therefore, participants in such markets must often satisfy themselves as to the creditworthiness of their counterparty. Additionally, in the event of the insolvency or bankruptcy of a non-U.S. market or broker, the rights of market participants are likely to be more limited than the rights afforded by the U.S. futures exchanges.

Regulations

Futures exchanges in the United States are subject to regulation under the CEA, by the CFTC, the governmental agency having responsibility for regulation of futures exchanges and trading on those exchanges. (Investors should be aware that no governmental U.S. agency regulates the OTC foreign exchange markets.)

The CFTC has exclusive authority to designate exchanges for the trading of specific futures contracts and options on futures contracts and to prescribe rules and regulations of the marketing of each. The CFTC also regulates the activities of “commodity trading advisors” and “commodity pool operators” and the CFTC has adopted regulations with respect to certain of such persons’ activities. Pursuant to its authority, the CFTC requires a commodity pool operator, such as the Sponsor, to keep accurate, current and orderly records with respect to each pool it operates. The CFTC may suspend, modify or terminate the registration of any registrant for failure to comply with CFTC rules or regulations. Suspension, restriction or termination of the Sponsor’s registration as a commodity pool operator would prevent it, until such time (if any) as such registration were to be reinstated, from managing, and might result in the termination of, the Funds. The CEA gives the CFTC similar authority with respect to the activities of commodity trading advisors, such as the Sponsor, and requires commodity trading advisors to maintain current and accurate records within the United States. If the registration of a Sponsor as a commodity trading advisor were to be terminated, restricted or suspended, the Sponsor would be unable, until such time (if any) as such registration were to be reinstated, to render trading advice to the Funds. The Funds themselves are not registered with the CFTC in any capacity. Therefore, if the Sponsor were unable to provide services and/or trading advice to the Funds, the Funds would be unable to pursue their investment objectives unless and until the Sponsor’s ability to provide services and trading advice to the Funds was reinstated or a replacement for the Sponsor as commodity pool operator and/or commodity trading advisor could be found. Such an event could result in termination of the Funds.

The CEA requires all FCMs to meet and maintain specified fitness and financial requirements, segregate customer funds from proprietary funds and account separately for all customers’ funds and positions, and to maintain specified book and records open to inspection by the staff of the CFTC. See “Risk Factors—Risks Related to Regulatory Requirements and Potential Legislative Changes—FCMs to segregate assets may increase losses in the Funds.”

The CEA also gives the states certain powers to enforce its provisions and the regulations of the CFTC.

Under certain circumstances, the CEA grants shareholders the right to institute a reparations proceeding before the CFTC against the Sponsor (as a registered commodity pool operator and commodity trading advisor), the FCM, as well as those of their respective employees who are required to be registered under the CEA. Shareholders may also be able to maintain a private right of action for certain violations of the CEA.

Pursuant to authority in the CEA, the NFA has been formed and registered with the CFTC as a registered futures association. At the present time, the NFA is the only self regulatory organization for commodities professionals other than exchanges. As such, the NFA promulgates rules governing the conduct of commodity professionals and disciplines those professionals that do not comply with such standards. The CFTC has delegated to the NFA responsibility for the registration of commodity trading advisors, commodity pool operators, FCMs, introducing brokers and their respective associated persons and floor brokers. The Sponsor is a member of the NFA (the Funds themselves are not required to become members of the NFA). As an NFA member, the Sponsor is subject to NFA standards relating to fair trade practices, financial condition, and consumer protection. The CFTC is prohibited by statute from regulating trading on foreign commodity exchanges and markets.

 

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Recent Legislative Efforts

In June 2008, the Chairman of the Senate’s government affairs committee unveiled a series of restrictive proposals aimed at financial speculators in commodities. The most severe would prohibit private and public pension funds with more than $500 million in assets from investing in agricultural and energy commodities traded on a U.S. futures exchange, foreign exchange or OTC. A second plan would direct the CFTC to establish total limits on the share of the commodity market held by financial investors. A third proposal would direct the CFTC to impose speculative-position limits on any stakes not related to real hedging activities.

In July 2008, the Senate’s Majority Leader introduced a bill in an effort to curb excessive speculation and increase transparency and accountability in the oil and gas markets. The aim of the bill is also to prevent traders from “gaming” these markets. The bill proposes to increase the resources and authority of the CFTC to detect, prevent and punish price manipulation and excessive speculation of energy commodities. The bill attempts to distinguish legitimate hedge fund trading from all other trading in energy commodities by defining hedge fund trading as transactions that involve the future delivery of an actual physical energy commodity. Any trading that does not involve the physical delivery of an energy commodity would be subject to speculative position limits established by the CFTC. The bill also requires institutional traders that engage in OTC transactions to keep detailed records so that the CFTC can determine if price manipulation or excessive speculation is taking place. If the CFTC determines that such trading has resulted in a major market disturbance, the bill authorizes the CFTC to take remedial action, including the liquidation of OTC contracts. In addition, the bill attempts to increase the transparency of index trading by requiring the CFTC to routinely collect detailed information from index traders and swap dealers. To further reduce speculation, the bill aims to close the so-called London Loophole that appears to permit excessive speculation through unregulated foreign exchanges. On July 25, 2008, the bill was blocked by a vote of the Senate which prevented the bill from being considered on the Senate floor. The Senate is currently considering various amendments which would allow the bill to proceed to a vote at a future date.

Another bill aimed at preventing excessive speculation in oil and other futures was introduced by the Chair of the House Committee on Agriculture on July 30, 2008. This bill failed to pass by a vote in the House. The sponsor of the bill has stated that he will attempt to call for a new vote on the bill in September.

Daily Limits

Most U.S. futures exchanges (but generally not foreign exchanges or banks or dealers in the cases of forward contracts, swap agreements and options on forward contracts) limit the amount of fluctuation in some futures contract or options on futures contract prices during a single day by regulations. These regulations specify what are referred to as “daily price fluctuation limits” or more commonly “daily limits.” Once the daily limit has been reached in a particular futures interest, no trades may be made at a price beyond that limit.

Margin

“Initial” or “original” margin is the minimum amount of funds that a futures trader must deposit with his commodity broker in order to initiate futures contract trading or to maintain an open position in futures contracts. Maintenance margin is the amount (generally less than initial margin) to which a trader’s account may decline before he must deliver additional margin. A margin deposit is like a cash performance bond. It helps assure the futures trader’s performance of the futures interests which contracts he purchases or sells. The minimum amount of margin required in connection with a particular futures contract is set by the exchange on which such contract is traded and is subject to change at any time during the term of the contract. Futures interests are customarily bought and sold on margins that represent a very small percentage (ranging upward from less than 2%) of the aggregate purchase or sales price of the contract. Because of such low margins, price fluctuations occurring in the futures markets may create profits and losses that are greater, in relation to the amount invested, than are customary in other forms of investments.

 

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Brokerage firms carrying accounts for traders in futures interests contracts may not accept lower, and may require higher, amounts of margin as a matter of policy in order to afford further protection for themselves.

Margin requirements are computed each day by a commodity broker. At the close of each trading day, each open futures interests contract is marked to market, that is, the gain or loss on the position is calculated from the prior day’s close. When the market value of a particular open futures interests contract position changes to a point where the margin on deposit does not satisfy maintenance margin requirements, a margin call is made by the commodity broker. If the margin call is not met within a reasonable time, the broker may close out the trader’s position.

Trading in OTC markets, such as swaps and forward contracts, where no clearing facility is provided, generally does not require margin but generally does require the extension of credit between the counterparties. In such cases, dealers that maintain exposure to the Funds may require the Funds to post collateral or other similar assurance of performance.

 

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DESCRIPTION OF THE DOW JONES—AIG COMMODITY INDEX AND SUB-INDICES

The Dow Jones—AIG Commodity Index

The Dow Jones—AIG Commodity Index SM (the “Dow Jones—AIG”) is designed to be a highly liquid and diversified benchmark for the commodity futures market. The Dow Jones—AIG is composed of futures contracts on 19 physical commodities. Unlike equities, which entitle the holder to a continuing stake in a corporation, commodity futures contracts specify a delivery date for the underlying physical commodity. In order to avoid delivery and maintain a long futures position, nearby contracts must be sold and contracts that have not yet reached the delivery period must be purchased. This process is known as “rolling” a futures position. The Dow Jones—AIG is a “rolling index” which means that the Dow Jones—AIG Index does not take actual physical possession of the commodities it tracks, rather it purchases futures contracts of a commodity and as the time for the contract becomes due it sells those contracts and purchases new futures contracts that have not yet reached their delivery period.

The Dow Jones—AIG is comprised of commodities in eight different sectors including, petroleum, natural gas, livestock, grains, industrial metals, precious metals, softs and vegetable oil. These eight sectors track futures contracts prices of 19 specific commodities such as natural gas, crude oil, unleaded gasoline, heating oil, live cattle, lean hogs, wheat, corn, soybeans, soybean oil, aluminum, copper, zinc, nickel, gold, silver, sugar, cotton and coffee. The Dow Jones-AIG is designed to minimize concentration in any one commodity or sector. No single commodity may constitute less than 2% or more than 15% of the index. No related group of commodities (e.g., energy, precious metals, livestock or grains) may constitute more than 33% of the index as of the annual reweightings of the components.

To determine its component weightings, the Dow Jones—AIG relies primarily on liquidity data, or the relative amount of trading activity of a particular commodity. Liquidity is an important indicator of the value placed on a commodity by financial and physical market participants. The index also relies to a lesser extent on dollar-adjusted production data. The index thus relies on data that is endogenous to the futures markets (liquidity) and exogenous to the futures markets (production) in determining relative weightings. All data used in both the liquidity and production calculations is averaged over a five-year period.

In consultation with the DJ—AIG Commodity Index Advisory Committee, the DJ—AIG Commodity Index Supervisory Committee meets annually to determine the composition of the index in accordance with the rules established in the DJ-AIGCI Handbook. The Supervisory Committee consists of employees of AIG-FP and Dow Jones. DJ—AIG Commodity Index Advisory Committee members are drawn from the academic, financial and legal communities.

The Dow Jones—AIG is composed of commodities traded on U.S. exchanges, with the exception of aluminum, nickel and zinc, which trade on the London Metal Exchange (“LME”). Trading hours for the U.S. commodity exchanges are between 8:00 a.m. and 3:00 p.m. (Eastern Time). The Dow Jones—AIG ER contract trades exclusively on the CBOT’s electronic trading platform. The new Dow Jones—AIG ER futures contract will trade exclusively on the Exchange’s premier electronic trading platform, e-cbot ® , from 8:15 a.m. – 1:30 p.m. Central Time, Monday through Friday. A daily settlement price for the index is published at approximately 5:00 p.m. (Eastern Time).

The Dow Jones—AIG is designed to provide:

 

   

Weightings that reflect economic significance

 

   

Diversification

 

   

Low volatility

 

   

Annual reweighting and rebalancing

 

   

Liquidity

 

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Dow Jones—AIG Commodity Index

The Ultra DJ-AIG Commodity ProShares and UltraShort DJ-AIG Commodity ProShares are designed to track a multiple or inverse multiple of the daily performance of Dow Jones—AIG Commodity Index SM . The Dow Jones-AIG Commodity Index is a proprietary index that AIG Financial Products Corp. (successor to AIG International, Inc.) (“AIG-FP”) developed and that Dow Jones, in conjunction with AIG-FP, calculates. The methodology for determining the composition and weighting of the Index and for calculating its level is subject to modification by the Sponsors any time. Dow Jones disseminates the Index level at least every 15 seconds from 8:00 a.m. to 3:00 p.m. (Eastern Time), and publishes a daily Index level at approximately 5:00 p.m. (Eastern Time), each business day on its website at http://www.djindexes.com and on other major market data vendors.

The Index is re-weighted and rebalanced each year in January on a price-percentage basis. The annual weightings for the Index are determined each year in June or July by AIG-FP and Dow Jones under the supervision of the Dow Jones-AIG Commodity Index Oversight Committee (the “Oversight Committee”), announced after approval by the Committee and implemented the following January.

The Index is designed to track rolling futures positions in a diversified basket of 19 exchange-traded futures contracts on physical commodities. The 19 physical commodities selected for 2008 are natural gas, crude oil, unleaded gasoline, heating oil, live cattle, lean hogs, wheat, corn, soybeans, soybean oil, aluminum, copper, zinc, nickel, gold, silver, sugar, cotton and coffee.

The Index tracks what is known as a rolling futures position, which is a position where, on a periodic basis, futures contracts on physical commodities specifying delivery on a nearby date must be sold and futures contracts on physical commodities that have not yet reached the delivery period must be purchased. An investor with a rolling futures position is able to avoid delivering underlying physical commodities while maintaining exposure to those commodities. The rollover for each Index component occurs over a period of five Dow Jones-AIG business days each month according to a pre-determined schedule. The Index will reflect the performance of its underlying commodities, including roll costs, without regard to income earned on cash positions.

The Dow Jones-AIG Commodity Index is intended to reflect the overall commodity sector. The Index tracks 19 commodities from eight broad sectors such as petroleum, natural gas, livestock, grains, industrial metals, precious metals, softs and vegetable oil. The Index is composed of notional amounts of the futures contracts for each of the Index commodities with the weighting of each commodity broadly based in proportion to historical levels of the world’s production and supplies of such Index commodity. The Index reflects the return of the underlying commodity prices movement only, whether positive or negative. As of the date of this filing, the Dow Jones-AIG Commodity Index is the basis for a listed and traded futures contract on the CBOT. Futures contracts on the Index commodities currently trade on U.S. futures exchanges, with the exception of aluminum, nickel and zinc, which trade on the LME.

Dow Jones—AIG Agriculture Sub-Index

The Ultra DJ-AIG Agriculture ProShares and UltraShort DJ-AIG Agriculture ProShares are designed to track a multiple or inverse multiple of the daily performance of Dow Jones—AIG Agriculture Sub-Index SM . The Dow Jones-AIG Agriculture Sub-Index SM is intended to reflect the agricultural market. The Index consists of the following seven commodity futures contracts: coffee, corn, cotton, soybeans, soybean oil, sugar and wheat. The Index will reflect the performance of its underlying commodities, including roll costs, without regard to income earned on cash positions.

Dow Jones—AIG Crude Oil Sub-Index SM

The Ultra DJ-AIG Crude Oil ProShares and UltraShort DJ-AIG Crude Oil ProShares are designed to track a multiple or inverse multiple of the daily performance of Dow Jones—AIG Crude Oil Sub-Index SM . The Dow Jones-AIG Crude Oil Sub-Index SM is intended to reflect the performance of crude oil as measured by the price of nearby futures contracts of sweet, light crude oil traded on the NYMEX, including roll costs, without regard to income earned on cash positions. Crude oil is the world’s most actively traded commodity and may

 

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experience significant volatility. The price of crude oil is established by the supply and demand conditions in the global market overall, and more particularly, in the main refining centers of Singapore, Northwest Europe, and the U.S. Gulf Coast. Demand for petroleum products by consumers, as well as agricultural, manufacturing and transportation industries, determines demand for crude oil by refiners. Since the precursors of product demand are linked to economic activity, crude oil demand will tend to reflect economic conditions. However, other factors such as weather also influence product and crude oil demand. The Index will reflect the performance of its underlying commodities, including roll costs, without regard to income earned on cash positions.

Information About the Index Licensor

“Dow Jones,” “AIG ® ”, Dow Jones—AIG Commodity Index SM , Dow Jones—AIG Agriculture Sub-Index SM , Dow Jones—AIG Crude Oil Sub-Index SM ,” and DJ-AIG SM ” are service marks of Dow Jones & Company, Inc. and American International Group, Inc. (“American International Group”), as the case may be, and have been licensed for use for certain purposes by the Trust (“Licensee”). Dow Jones—AIG Commodity Index SM , Dow Jones—AIG Agriculture Sub-Index SM , Dow Jones—AIG Crude Oil Sub-Index SM are collectively referred to as the Indexes.

The Funds are not sponsored, endorsed, sold or promoted by Dow Jones & Company, Inc. (“Dow Jones”), American International Group, Inc. (“American International Group”), AIG Financial Products Corp. (“AIG-FP”) or any of their subsidiaries or affiliates. None of Dow Jones, American International Group, AIG-FP or any of their subsidiaries or affiliates makes any representation or warranty, express or implied, to the owners of or counterparts to the Funds or any member of the public regarding the advisability of investing in securities or commodities generally or in the Funds particularly. The only relationship of Dow Jones, American International Group, AIG-FP or any of their subsidiaries or affiliates to the Licensee is the licensing of certain trademarks, trade names and service marks and of the Indexes, which are determined, composed and calculated by Dow Jones in conjunction with AIG-FP without regard to the Licensee or the Funds. Dow Jones and AIG-FP have no obligation to take the needs of the Licensee or the shareholders of the Funds into consideration in determining, composing or calculating the Indexes. None of Dow Jones, American International Group, AIG-FP or any of their respective subsidiaries or affiliates is responsible for or has participated in the determination of the timing of, prices at, or quantities of the shares of the Funds to be issued or in the determination or calculation of the equation by which the shares of the Funds are converted into cash. None of Dow Jones, American International Group, AIG-FP or any of their subsidiaries or affiliates shall have any obligation or liability, including, without limitation, to Fund shareholders, in connection with the administration, marketing or trading of the Funds. In addition, American International Group, AIG-FP and their subsidiaries and affiliates actively trade commodities, commodity indexes and commodity futures (including the Indexes), as well as swaps, options and derivatives which are linked to the performance of such commodities, commodity indexes and commodity futures. It is possible that this trading activity will affect the value of the Dow Jones-AIG Commodity Index SM , and Fund shares.

Fund shareholders should not conclude that the inclusion of a futures contract in the Dow Jones-AIG Commodity Index SM is any form of investment recommendation of the futures contract or the underlying exchange-traded physical commodity by Dow Jones, American International Group, AIG-FP or any of their subsidiaries or affiliates. The information in this Prospectus regarding the Index components has been derived solely from publicly available documents. None of Dow Jones, American International Group, AIG-FP or any of their subsidiaries or affiliates has made any due diligence inquiries with respect to the Dow Jones-AIG Commodity Index SM components in connection with Funds. None of Dow Jones, American International Group, AIG-FP or any of their subsidiaries or affiliates makes any representation that these publicly available documents or any other publicly available information regarding the Index components, including without limitation a description of factors that affect the prices of such components, are accurate or complete.

NONE OF DOW JONES, AMERICAN INTERNATIONAL GROUP, AIG-FP OR ANY OF THEIR SUBSIDIARIES OR AFFILIATES GUARANTEES THE ACCURACY AND/OR THE COMPLETENESS OF THE INDEXES OR ANY DATA INCLUDED THEREIN AND NONE OF DOW JONES, AMERICAN INTERNATIONAL GROUP, AIG-FP OR ANY OF THEIR SUBSIDIARIES OR AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. NONE OF DOW JONES, AMERICAN INTERNATIONAL GROUP, AIG-FP OR ANY OF THEIR SUBSIDIARIES OR AFFILIATES MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY THE LICENSEE, FUND SHAREHOLDERS, OR ANY OTHER PERSON OR ENTITY FROM THE USE OF THE INDEXES OR ANY DATA INCLUDED THEREIN. NONE OF DOW JONES, AMERICAN

 

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INTERNATIONAL GROUP, AIG-FP OR ANY OF THEIR SUBSIDIARIES OR AFFILIATES MAKES ANY EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE INDEXES OR ANY DATA INCLUDED THEREIN. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL DOW JONES, AMERICAN INTERNATIONAL GROUP, AIG-FP OR ANY OF THEIR SUBSIDIARIES OR AFFILIATES HAVE ANY LIABILITY FOR ANY LOST PROFITS OR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES, EVEN IF NOTIFIED OF THE POSSIBILITY THEREOF. THERE ARE NO THIRD PARTY BENEFICIARIES OF ANY AGREEMENTS OR ARRANGEMENTS AMONG DOW JONES, AIG-FP AND THE LICENSEE, OTHER THAN AMERICAN INTERNATIONAL GROUP.

 

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DESCRIPTION OF THE COMMODITY BENCHMARKS

Gold

The Ultra Gold ProShares and the UltraShort Gold ProShares are designed to track a multiple or inverse multiple of the daily performance of gold bullion as measured by the U.S. Dollar p.m. fixing price for delivery in London. The Funds will not directly or physically hold the underlying gold, but instead, will seek exposure to gold through the use of Financial Instruments whose value is based on the underlying price of gold to pursue their investment objective. The benchmark price of gold will be the U.S. Dollar price of gold bullion as measured by the London afternoon fixing price per troy ounce of unallocated gold bullion for delivery in London through a member of the London Bullion Market Association, or LBMA, authorized to effect such delivery.

The price of gold is volatile with fluctuations expected to affect the value of the Shares of the Fund. The price movement of gold may be influenced by a variety of factors, including announcements from central banks regarding reserve gold holdings, agreements among central banks, political uncertainties and economic concerns. The gold market is a global marketplace consisting of both OTC transactions and exchange-traded products. The OTC market generally consists of transactions in spot, forwards, options and other derivatives, while exchange-traded transactions consist of futures and options.

A London gold “fix” is conducted each trading day at 3:00 p.m. London time providing reference gold prices for that day’s trading. Many long-term contracts are priced on the basis of the London gold fix and market participants will usually refer to the London gold fix when looking for a basis for valuation. The Sponsor believes that the London fix is the most widely used benchmark for daily gold prices and is quoted by various major market data vendors.

Silver

The Ultra Silver ProShares and the UltraShort Silver ProShares are designed to track a multiple or inverse multiple of the daily performance of silver bullion as measured by the U.S. Dollar p.m. fixing price for delivery in London. The Funds will not directly or physically hold the underlying silver, but instead will seek exposure to silver through the use of Financial Instruments whose value is based on the underlying price of silver to pursue their investment objective. The benchmark price of silver will be the U.S. Dollar price of silver bullion as measured by the London afternoon fixing price per troy ounce of unallocated silver bullion for delivery in London through a member of the LBMA authorized to effect such delivery.

The price of silver is volatile with fluctuations expected to affect the value of the Shares. The largest industrial users of silver are the photographic, jewelry, and electronic industries and developments in these industries among other factors may influence the price of silver. Like gold, the silver market is a global marketplace consisting of both OTC transactions and exchange-traded products. The OTC market generally consists of transactions in spot, forwards, options and other derivatives, while exchange-traded transactions consist of futures and options.

A London silver “fix” is conducted each trading day at 12:00 p.m. London time providing reference silver prices for that day’s trading. Many long-term contracts are priced on the basis of the London silver fix and market participants will usually refer to the London silver fix when looking for a basis for valuation. The Sponsor believes that the London fix is the most widely used benchmark for daily silver prices and is quoted by various major market data vendors.

 

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DESCRIPTION OF THE CURRENCIES BENCHMARKS

The Ultra Euro ProShares, Ultra Yen ProShares, the UltraShort Euro ProShares and the UltraShort Yen ProShares are designed to track a multiple or inverse multiple of the daily performance of the applicable currency as measured by the U.S. Dollar. These Funds will use the 4:00 p.m. (Eastern Time) spot prices of the Euro and Japanese yen exchange rates as provided by Reuters, expressed in terms of U.S. Dollars per unit of foreign currency, as the basis for the spot prices of the underlying benchmark.

Euro

The Ultra Euro ProShares and UltraShort Euro ProShares are designed to track a multiple or inverse multiple of the daily performance of the Euro spot price versus the U.S. Dollar. These Funds will use the 4:00 p.m. (Eastern Time) Euro exchange rate as provided by Reuters, expressed in terms of U.S. Dollars per unit of foreign currency, as the basis for the underlying benchmark.

In 1998, the European Central Bank in Frankfurt was organized by Austria, Belgium, Finland, France, Germany, Ireland, Italy, Luxembourg, the Netherlands, Portugal and Spain in order to establish a common currency—the Euro. In 2001, Greece joined as the twelfth country adopting the Euro as its national currency. Unlike the U.S. Federal Reserve System, the Bank of Japan and other comparable central banks, the European Central Bank is a central authority that conducts monetary policy for an economic area consisting of many otherwise largely autonomous states.

At its inception on January 1, 1999, the Euro was launched as an electronic currency used by banks, foreign exchange dealers and stock markets. In 2002, the Euro became cash currency for approximately 300 million citizens of 12 European countries. On May 1, 2004, ten additional countries joined the European Union and, subject to meeting rigorous criteria established by the European Central Bank, are expected to adopt the Euro as their national currency some time before 2010. These countries are Cyprus (South), the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia.

According to the Bank for International Settlements Triennial Central Bank Survey of Foreign Exchange and Derivatives Market Activity in December 2007 – Final results, (the “BIS Survey”), average daily turnover of the U.S. Dollar in the foreign exchange market accounts for approximately 86% of global foreign exchange transactions, which makes it the most-traded currency in the world. The average daily turnover of the Euro in the foreign exchange market accounts for approximately 37% of global foreign exchange transactions, which makes it the second-most-traded currency in the world. The U.S. Dollar/Euro pair has an average daily turnover of approximately $840 billion, which makes it the most-traded currency pair, accounting for approximately 27% of the global foreign exchange transactions.

Although the European countries that have adopted the Euro are members of the European Union, the United Kingdom, Denmark and Sweden are European Union members that have not adopted the Euro as their national currency.

Japanese Yen

The Ultra Yen ProShares and UltraShort Yen ProShares are designed to track a multiple or inverse multiple of the daily performance of the Yen spot price versus the U.S. Dollar. These Funds will use the 4:00 p.m. (Eastern Time) Euro exchange rate as provided by Reuters, expressed in terms of U.S. Dollars per unit of foreign currency, as the basis for the underlying benchmark.

The Japanese Yen has been the official currency of Japan since 1871. The Bank of Japan has been operating as the central bank of Japan since 1882.

As of December 2007 the average daily turnover in the foreign exchange market was approximately $3.2 trillion. The average daily turnover of the Japanese Yen in the foreign exchange market accounts for approximately 16.5% of global foreign exchange transactions, which makes it the third-most-traded currency in the world. The U.S. Dollar/Japanese Yen pair has an average daily turnover of approximately $397 billion, which makes it the second most traded currency pair, accounting for approximately 13% of global foreign exchange transactions.

 

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A portion of the above information was obtained from the BIS Survey information which comes from the Bank for International Settlements and maintains a website at www.bis.org .

 

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The Funds are newly formed and have no operating history.

Critical Accounting Policies

Preparation of the financial statements and related disclosures in compliance with accounting principles generally accepted in the United States of America requires the application of appropriate accounting rules and guidance, as well as the use of estimates. The Sponsor’s application of these policies involves judgments and actual results may differ from the estimates used. Each Fund expects to have significant exposure to Financial Instruments. Assets of each Fund not invested in Financial Instruments will be invested in cash and/or U.S. Treasury Securities or other high credit quality short-term fixed-income or similar securities (such as shares of money market funds, bank deposits, bank money market accounts, certain variable rate-demand notes and repurchase agreements collateralized by government securities, whether denominated in U.S. or the applicable foreign currency with respect to a Currency Fund) or other interest-bearing securities approved by the CFTC for investment of customer funds, each of which will be held at fair value.

Liquidity and Capital Resources

As of the date of this Prospectus, the Funds have not begun trading activities. A significant portion of the NAV of each Fund is likely to be held in cash and/or U.S. Treasury Securities or other high credit quality short-term fixed-income or similar securities as described above. A portion of these investments will be posted as collateral in connection with swap agreements and/or used as margin for each Fund’s trading in futures and forward contracts. The percentage that U.S. Treasury bills and other short-term fixed-income securities will bear to the total net assets of each Fund will vary from period to period as the market values of the underlying swaps, futures contracts and forward contracts change.

Each Fund’s underlying swaps, futures and forward contracts, as the case may be, will be subject to periods of illiquidity because of market conditions, regulatory considerations and other reasons. For example, swaps and forward contracts are not traded on an exchange, do not have uniform terms and conditions, and in general are not transferable without the consent of the counterparty. In the case of futures contracts, commodity exchanges may limit fluctuations in certain futures contract prices during a single day by regulations referred to as “daily limits.” During a single day, no trades may be executed at prices beyond the daily limit. Once the price of a futures contract has increased or decreased by an amount equal to the daily limit, such positions can neither be taken nor liquidated unless the traders are willing to effect trades at or within the limit. Futures contract prices have occasionally moved the daily limit for several consecutive days with little or no trading. Such market conditions could prevent a Fund from promptly liquidating its futures positions.

Entry into swap agreements or forward contracts will further impact liquidity because these contractual agreements are executed “off-exchange” between private parties and therefore, the time required to offset or “unwind” these positions may be greater than that for regulated instruments. This potential delay could be exacerbated to the extent a counterparty is not a United States person.

Because each Fund will enter into swaps and trade futures and forward contracts, its capital will be at risk due to changes in the value of these contracts (market risk) or the inability of counterparties to perform under the terms of the contracts (credit risk).

Market Risk

Trading in futures contracts will involve each Fund entering into contractual commitments to purchase or sell a commodity underlying a Fund’s benchmark at a specified date and price, should it hold such futures contract into the deliverable period. Should a Fund enter into a contractual commitment to sell a physical commodity, it would be required to make delivery of that commodity at the contract price and then repurchase the contract at prevailing market prices or settle in cash. Since the repurchase price to which the value of a commodity can rise is unlimited, entering into commitments to sell commodities would expose a Fund to theoretically unlimited risk.

 

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Each Fund’s exposure to market risk will be influenced by a number of factors including the liquidity of the markets in which the contracts are traded and the relationships among the contracts held. The inherent uncertainty of each Fund’s trading as well as the development of drastic market occurrences could ultimately lead to a loss of all or substantially all of investors’ capital.

Credit Risk

When a Fund enters into swap agreements, futures or forward contracts, the Fund will be exposed to credit risk that the counterparty to the contract will not meet its obligations.

The counterparty for futures contracts traded on United States and on most foreign futures exchanges is the clearing house associated with the particular exchange. In general, clearing houses are backed by their corporate members who may be required to share in the financial burden resulting from the nonperformance by one of their members and, as such, should significantly reduce this credit risk. In cases where the clearing house is not backed by the clearing members ( i.e. , some foreign exchanges, which may become applicable in the future), it may be backed by a consortium of banks or other financial institutions.

It is expected that swap and forward agreements will be contracted for directly with counterparties. There can be no assurance that any counterparty, clearing member or clearing house will meet its obligations to a Fund.

Swap agreements do not generally involve the delivery of securities or other underlying assets either at the outset of a transaction or upon settlement. Accordingly, if the counterparty to a swap agreement defaults, the Fund’s risk of loss consists of the net amount of payments that the Fund is contractually entitled to receive, if any.

Forward agreements do not involve the delivery of securities at the onset of a transaction, but may be settled physically in the underlying asset if such contracts are held to expiration, particularly in the case of currency forwards. Thus prior to settlement, if the counterparty to a forward contract defaults, a Fund’s risk of loss consists of the net amount of payments that the Fund is contractually entitled to receive, if any. However if physically settled forwards are held until expiration (presently, there is no plan to do this), at the time of settlement a Fund may be at risk for the full notional value of the forward contracts depending on the type of settlement procedures used.

The Sponsor will attempt to minimize certain of these market and credit risks by normally:

 

   

executing and clearing trades with creditworthy counterparties, as determined by the Sponsor;

 

   

limiting the outstanding amounts due from counterparties to the Funds;

 

   

not posting margin directly with a counterparty;

 

   

limiting the amount of margin or premium posted at an FCM; and

 

   

ensuring that deliverable contracts are not held to such a date when delivery of the underlying asset could be called for.

The FCM for each Fund, in accepting orders for the purchase or sale of domestic futures contracts, will be required by CFTC regulations to separately account for and segregate as belonging to the Fund, all assets of the Fund relating to domestic futures trading, and the FCM will not be allowed to commingle such assets with other assets of the FCM. In addition, CFTC regulations will also require the FCM to hold in a secure account assets of each Fund related to foreign futures trading.

 

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OFF-BALANCE SHEET ARRANGEMENTS AND CONTRACTUAL OBLIGATIONS

As of the date of this Prospectus, the Funds have not utilized, nor do they expect to utilize in the future, special purpose entities to facilitate off balance sheet financing arrangements and have no loan guarantee arrangements or off balance sheet arrangements of any kind other than agreements entered into in the normal course of business, which may include indemnification provisions related to certain risks service providers undertake in performing services which are in the best interests of the Funds. While each Fund’s exposure under such indemnification provisions cannot be estimated, these general business indemnifications are not expected to have a material impact on a Fund’s financial position.

Each Fund’s contractual obligations are with the Sponsor, certain service providers and with any counterparty to a Financial Instrument. Management fee payments made to the Sponsor are calculated as a fixed percentage of each Fund’s NAV. As such, the Sponsor cannot anticipate the amount of payments that will be required under these arrangements for future periods as NAVs are not known until a future date. The agreement with the Sponsor is effective for a one-year term, renewable automatically for additional one-year terms unless terminated. The Dow Jones—AIG licensing agreement is effective for a period of years, renewable automatically for additional one year terms unless terminated. Additionally, the Dow Jones—AIG licensing agreement may be terminated by either party for various reasons.

 

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USE OF PROCEEDS

Substantially all of the proceeds of the offering of the Shares of each Fund will be used by each Fund to enter into Financial Instruments relating to that Fund’s benchmark and purchase cash and/or U.S. Treasury Securities or other high credit quality short-term fixed-income or similar securities (such as shares of money market funds, bank deposits, bank money market accounts, certain variable rate-demand notes and repurchase agreements collateralized by government securities, whether denominated in U.S. or the applicable foreign currency with respect to a Currency Fund) that may be used to collateralize swap agreements or forward contracts or deposited with FCMs as margin in connection with any futures transactions. The ProShares benchmarked against a commodity index or a commodity are built to provide an investor double (e.g., 2x) or short (e.g., -2x) exposure on a daily basis to the commodity index or commodity. The ProShares benchmarked against a currency are built to provide an investor double (e.g., 2x) or short (e.g., -2x) exposure on a daily basis to the currency. The Ultra ProShares that are benchmarked against a commodity index or a commodity are designed to go up as the value of the commodity index or commodity goes up on a daily basis. The Ultra ProShares that are benchmarked against a currency are designed to go up as the value of the currency goes up on a daily basis. The UltraShort ProShares that are benchmarked against a commodity index or a commodity are built to go up as the value of the commodity index or commodity goes down on a daily basis. The UltraShort ProShares that are benchmarked against a currency are built to go up as the value of the currency goes down on a daily basis.

To the extent that a Fund trades in futures contracts on United States exchanges, the assets deposited by such Fund with its FCM (or another eligible financial institution, as applicable) as margin must be segregated pursuant to the regulations of the CFTC. Such segregated funds may be invested only in a limited range of instruments—principally U.S. government obligations to margin futures and forward contract positions.

The Sponsor has selected PBC as its initial FCM. PBC, in its capacity as a registered FCM, will serve as a clearing broker to the Trust and each Fund and as such will arrange for the execution and clearing of each Fund’s commodity futures trades. On or about January 1, 2004, the assets and the accounts of the Global Derivatives Business of Prudential Equity Group, Inc. (f/k/a Prudential Securities Incorporated) were transferred to Prudential Financial Derivatives, LLC, which was renamed Prudential Bache Commodities, LLC in 2007. PBC is registered as a FCM with the CFTC and is a member of the NFA. PBC is a clearing member of the CBOT, CME, NYMEX, and all other major United States commodity exchanges. PBC acts as clearing broker for many other funds and individuals. PBC is not affiliated with and does not act as a supervisor of the Trust or any Fund or the Sponsor, the Trustee, the Administrator, or the Custodian. PBC is not acting as an underwriter or sponsor of the offering of the Shares and has not passed upon the merits of participating in this offering. PBC has not passed upon the adequacy of this Prospectus or on the accuracy of the information contained herein. PBC does not provide any commodity trading advice regarding any Funds’ trading activities. Investors should not rely upon PBC in deciding whether to invest in any Fund or retain their interests in any Fund. Prospective subscribers should also note that the Sponsor may select additional clearing brokers or replace PBC as each Fund’s clearing broker.

To the extent, if any, that a Fund enters into trades in futures on markets other than regulated United States futures exchanges, funds deposited to margin positions held on such exchanges are invested in bank deposits or in instruments of a credit standing generally comparable to those authorized by the CFTC for investment of “customer segregated funds,” although applicable CFTC rules prohibit funds employed in trading on foreign exchanges from being deposited in “customer segregated fund accounts.”

The Sponsor, a registered commodity pool operator and commodity trading advisor, will be responsible for the cash management activities of each Fund, including investing in cash equivalents that will serve as collateral for the Financial Instruments as described above.

 

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CHARGES

Breakeven Table

For the projected twelve month breakeven analysis for each Fund is set forth in the Breakeven Table below.

 

     Dollar Amount and Percentage of Expenses per Fund  

Expenses 1

   Ultra DJ-AIG
Commodity
ProShares
    Ultra DJ-AIG
Agriculture
ProShares
    Ultra DJ-AIG
Crude-Oil
ProShares
    Ultra Gold
ProShares
    Ultra Silver
ProShares
    Ultra Euro
ProShares
    Ultra Yen
ProShares
 
     $     %     $     %     $     %     $     %     $     %     $     %     $     %  

Selling price per share

   70.00       70.00       70.00       70.00       70.0       50.00       50.0    

Management Fee 2

   0.55     0.776 %   0.51     0.731 %   0.51     0.731 %   0.45     0.643 %   0.55     0.776 %   0.39     0.776 %   0.39     0.776 %

Organization and Offering Expenses 3

   0.12     0.174 %   0.16     0.219 %   0.16     0.219 %   0.22     0.307 %   0.12     0.174 %   0.09     0.174 %   0.09     0.174 %

Brokerage Commissions and Fees 4

   NM *   0.005 %   NM *   0.005 %   NM *   0.005 %   NM *   0.005 %   NM *   0.005 %   NM *   0.005 %   NM *   0.005 %

Other Expenses 5

   0.00     0.000 %   0.00     0.000 %   0.00     0.000 %   0.00     0.000 %   0.00     0.000 %   0.00     0.000 %   0.00     0.000 %

Total Fees and Expenses

   0.67     0.0955 %   0.67     0.0955 %   0.67     0.0955 %   0.67     0.0955 %   0.67     0.0955 %   0.48     0.0955 %   0.48     0.0955 %

Less: Interest Income 6

   (1.38 )   (1.970 )%   (1.38 )   (1.970 )%   (1.38 )   (1.970 )%   (1.38 )   (1.970 )%   (1.38 )   (1.970 )%   (0.99 )   (1.970 )%   (0.99 )   (1.970 )%

12-Month Breakeven 7,8 ,9

   (0.71 )   (1.015 )%   (0.71 )   (1.015 )%   (0.71 )   (1.015 )%   (0.71 )   (1.015 )%   (0.71 )   (1.015 )%   (0.51 )   (1.015 )%   (0.51 )   (1.015 )%
     Dollar Amount and Percentage of Expenses per Fund  

Expenses 1

   UltraShort
DJ-AIG
Commodity
ProShares
    UltraShort
DJ-AIG
Agriculture
ProShares
    UltraShort
DJ-AIG
Crude-Oil
ProShares
    UltraShort Gold
ProShares
    UltraShort Silver
ProShares
    UltraShort Euro
ProShares
    UltraShort Yen
ProShares
 
     $     %     $     %     $     %     $     %     $     %     $     %     $     %  

Selling price per share

   70.00       70.00       70.00       70.00       70.00       50.00       50.00    

Management Fee 2

   0.45     0.6430 %   0.51     0.731 %   0.45     0.643 %   0.45     0.643 %   0.51     0.731 %   0.39     0.776 %   0.39     0.776 %

Organization and Offering Expenses 3

   0.22     0.3070 %   0.16     0.219 %   0.22     0.307 %   0.22     0.307 %   0.16     0.219 %   0.09     0.174 %   0.09     0.174 %

Brokerage Commissions and Fees 4

   NM *   0.005 %   NM *   0.005 %   NM *   0.005 %   NM *   0.005 %   NM *   0.005 %   NM *   0.005 %   NM *   0.005 %

Other Expenses 5

   0.00     0.000 %   0.00     0.000 %   0.00     0.000 %   0.00     0.000 %   0.00     0.000 %   0.00     0.000 %   0.00     0.000 %

Total Fees and Expenses

   0.67     .0955 %   0.67     .0955 %   0.67     .0955 %   0.67     .0955 %   0.67     .0955 %   0.48     .0955 %   0.48     .0955 %

Less: Interest Income 6

   (1.38 )   (1.970 )%   (1.38 )   (1.970 )%   (1.38 )   (1.970 )%   (1.38 )   (1.970 )%   (1.38 )   (1.970 )%   (0.99 )   (1.970 )%   (0.99 )   (1.970 )%

12-Month Breakeven 7,8 ,9

   (0.71 )   (1.015 )%   (0.71 )   (1.015 )%   (0.71 )   (1.015 )%   (0.71 )   (1.015 )%   (0.71 )   (1.015 )%   (0.51 )   (1.015 )%   (0.51 )   (1.015 )%

 

*

Not meaningful, amount is less than $0.01.

1. The breakeven analysis set forth in this column assumes that the Shares have a constant month end NAV and is based on $70 as the NAV per Share of the Commodity and Commodity Index Funds and $50 as the NAV per Share of the Currency Funds. The actual NAV of any Fund will differ.
2. From the Management Fee, the Sponsor will be responsible for paying the fees and expenses of the Administrator, Custodian, Distributor, Transfer Agent, SEI and DOW AIG (the licensor for the Commodity Index Funds) and all routine operational, administrative and other ordinary expenses of each Fund.
3. Expenses incurred in connection with organizing each Fund and the initial offering of its shares will be paid by the Trust, and the Sponsor will not charge its fee in the first year of operations of each Fund in an amount equal to the organization and offering expenses and the Sponsor will reimburse the Fund to the extent that the Fund’s organizational and offering costs exceed 0.95% of the average daily NAV of each Fund for the first year of operations. Expenses incurred in connection with the continuous offering of Shares of each Fund after the commencement of its trading operations will be paid by the Sponsor.
4. The Funds are subject to brokerage commissions (not expected to be higher than 0.005% per annum of a Fund’s average daily net assets) including applicable exchange fees, NFA fees, give up fees, pit brokerage fees and other transaction related fees and expenses charged in connection with trading activities for each Fund’s investments in CFTC regulated investments.
5. In connection with orders to create and redeem Creation Units, Authorized Participants will pay a transaction fee in the amount of $500 per order. Authorized Participants may pay a variable fee of up to 0.10% of the valuation of the Creation Units that are purchased. Because these transaction fees are de minimis in amount, are charged on a transaction by transaction basis (and not on a Creation Unit by Creation Unit basis), and are borne by the Authorized Participants, they have not been included in the Breakeven Table.
6. Interest income currently is estimated to be earned at a rate of 1.97%, based upon the Federal Funds Effective Rate as of August 4, 2008.

 

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7. The percentage of profit required for each Fund to breakeven at the end of the first twelve months of an investment, by definition, is expected to be 0.955% per annum of the average daily net assets of a Fund.
8. The Funds will be successful only if their annual returns from the financial instruments and other income, if any, including annual income from short-term investments, exceed approximately 0.955% per annum of the average daily net assets of a Fund. The Funds are currently expected to earn interest income equal to 1.97% per annum, based upon the Federal Funds Effective Rate as of August 4, 2008. Therefore, based upon the difference between the Federal Funds Effective Rate as of August 4, 2008 and the expected annual fees and expenses, each of the Funds is expected to have net income equal to approximately 1.015% per annum, assuming that none of such Funds have experienced gains or losses from swap agreements, if any, or their futures trading, if any.
9. Investors may pay customary brokerage commissions in connection with purchases of the Shares. Because such brokerage commission rates will vary from investor to investor, such brokerage commissions have not been included in the Breakeven Table. Investors are encouraged to review the terms of their brokerage accounts for applicable charges.

Breakeven Amounts

The estimated amount of all fees and expenses which are anticipated to be incurred by a new investor in Shares of each Fund during the first twelve months of investment is the following percentage per annum of the average daily NAV of a Fund, plus the amount of any commissions charged by the investor’s broker:

 

Name of Fund

   Percentage  

Ultra DJ-AIG Commodity ProShares

   0.955 %

UltraShort DJ-AIG Commodity ProShares

   0.955 %

Ultra DJ-AIG Agriculture ProShares

   0.955 %

UltraShort DJ-AIG Agriculture ProShares

   0.955 %

Ultra DJ-AIG Crude Oil ProShares

   0.955 %

UltraShort DJ-AIG Crude Oil ProShares

   0.955 %

Ultra Gold ProShares

   0.955 %

UltraShort Gold ProShares

   0.955 %

Ultra Silver ProShares

   0.955 %

UltraShort Silver ProShares

   0.955 %

Ultra Euro ProShares

   0.955 %

UltraShort Euro ProShares

   0.955 %

Ultra Yen ProShares

   0.955 %

UltraShort Yen ProShares

   0.955 %

Each Fund will be successful only if its annual return from trading, plus its annual interest income from high credit quality short-term fixed income securities, exceeds its fees and expenses per annum. Each Fund is expected to earn interest income from the investment of Fund assets at a rate approximating the then current Federal Funds rate, which is equal to 1.97% per annum, as of August 4, 2008.

Consequently, based upon the positive difference between the current Federal Fund rate and the annual fees and expenses set out above, no gains from trading are required for each Fund to breakeven.

Organization and Offering Stage

Organization and Offering Expenses

The Trust will pay expenses incurred in connection with organizing each Fund and the initial offering of its shares will be paid by the Trust, and the Sponsor will not charge its fee in the first year of operations of each Fund in an amount equal to the organization and offering expenses. The Sponsor will reimburse the Fund to the extent that the Fund’s organizational and offering costs exceed 0.95% of the average daily NAV of each Fund for the first year of operations. Normal and expected expenses incurred in connection with the continuous offering of Shares of each Fund after the commencement of the Fund’s trading operations will be paid by the Sponsor.

Organization and offering expenses mean those expenses incurred in connection with the Trust’s formation, the qualification and registration of the Shares of each Fund and in offering, distributing and processing the Shares of each Fund under applicable federal law, and any other expenses actually incurred and, directly or indirectly, related to the organization of each offering of the Shares of such Fund, including, but not limited to, expenses such as:

 

   

initial SEC registration fees and SEC and FINRA filing fees;

 

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costs of preparing, printing (including typesetting), amending, supplementing, mailing and distributing the Registration Statement, the exhibits thereto and the Prospectus;

 

   

the costs of qualifying, printing, (including typesetting), amending, supplementing and mailing sales materials used in connection with the offering and issuance of the Shares; and

 

   

accounting, auditing and legal fees (including disbursements related thereto) incurred in connection therewith.

Operational Stage

Management Fee

Each Fund will pay the Sponsor a Management Fee, monthly in arrears, in an amount equal to 0.95% per annum of the average daily NAV of such Fund. No other management fee will be paid by the Fund. The Management Fee will be paid in consideration of the Sponsor’s trading advisory services and the other services provided to the Funds that the Sponsor will pay directly.

Licensing Fee

The Sponsor will pay Dow Jones—AIG a licensing fee for each Dow Jones—AIG sub-index used as a benchmark for a Commodity Index Fund.

Transaction Costs

The Funds will bear transaction costs related to the use of Financial Instruments, as well as brokerage and other related costs related to futures transactions.

Routine Operational, Administrative and Other Ordinary Expenses

The Sponsor will pay all of the routine operational, administrative and other ordinary expenses of each Fund, generally, as determined by the Sponsor, including, but not limited to, accounting and audit fees and expenses, tax preparation expenses, legal fees not in excess of $100,000 per year, ongoing SEC registration fees and SEC and FINRA filing fees not exceeding .021% per annum of the NAV of a Fund, individual K-1 preparation and mailing fees not exceeding .05% per annum of the NAV of a Fund, and report preparation and mailing expenses.

Non-Recurring Fees and Expenses

Each Fund will pay all of its non-recurring and unusual fees and expenses, if any, as determined by the Sponsor. Non-recurring and unusual fees and expenses are fees and expenses which are unexpected or unusual in nature, such as legal claims and liabilities and litigation costs or indemnification or other unanticipated expenses. Extraordinary fees and expenses will also include material expenses which are not currently anticipated obligations of the Funds. Routine operational, administrative and other ordinary expenses will not be deemed extraordinary expenses.

 

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Selling Commission

Retail investors may purchase and sell Shares through traditional brokerage accounts. Investors are expected to be charged a customary commission by their brokers in connection with purchases of Shares that will vary from investor to investor. Investors are encouraged to review the terms of their brokerage accounts for applicable charges. Also, the excess, if any, of the price at which an Authorized Participant sells a Share over the price paid by such Authorized Participant in connection with the creation of such Share in a Creation Unit may be deemed to be underwriting compensation.

Brokerage Commissions and Fees

Each Fund will pay all brokerage commissions, including applicable exchange fees, NFA fees and give-up fees.

 

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WHO MAY SUBSCRIBE

Only Authorized Participants may create or redeem Creation Units. Each Authorized Participant must (1) be a registered broker-dealer or other securities market participant such as a bank or other financial institution which is not required to register as a broker-dealer to engage in securities transactions, (2) be a participant in DTC, and (3) have entered into an agreement with the Funds and the Sponsor (an Authorized Participant Agreement).

 

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CREATION AND REDEMPTION OF SHARES

Each Fund will create and redeem Shares from time to time, but only in one or more Creation Units. A Creation Unit is a block of 50,000 Shares. Except when aggregated in Creation Units, the Shares are not redeemable securities.

Authorized Participants will pay a fixed transaction fee of $500 in connection with each order to create or redeem a Creation Unit of Shares in order to compensate BBH for services in processing the creation and redemption of Creation Units and to offset the costs of increasing or decreasing derivative positions. Authorized Participants may pay a variable transaction fee of up to 0.10% of the value of the Creation Unit that is purchased or redeemed. The Trust currently expects that the variable Transaction Fee will be 0.022% for the Commodity Funds and Commodity Index Funds and 0.0% for the Currency Funds. Authorized Participants may sell the Shares included in the Creation Units they purchase from the Funds to other investors.

The form of Authorized Participant Agreement and related Authorized Participant Handbook set forth the procedures for the creation and redemption of Creation Units and for the payment of cash required for such creations and redemptions. The Sponsor may delegate its duties and obligations under the form of Authorized Participant Agreement to SEI or the Administrator without consent from any shareholder or Authorized Participant. The form of Authorized Participant Agreement and the related procedures attached thereto may be amended by the Sponsor without the consent of any shareholder or Authorized Participant. Authorized Participants who purchase Creation Units from a Fund receive no fees, commissions or other form of compensation or inducement of any kind from either the Sponsor or the Fund, and no such person has any obligation or responsibility to the Sponsor or the Fund to effect any sale or resale of Shares.

Authorized Participants are cautioned that some of their activities will result in their being deemed participants in a distribution in a manner which would render them statutory underwriters and subject them to the prospectus delivery and liability provisions of the Securities Act of 1933 (the “1933 Act”), as described in “Plan of Distribution.”

Each Authorized Participant must be registered as a broker -dealer under the Securities Exchange Act of 1934 (the “1934 Act”) and regulated by FINRA, or will be exempt from being, or otherwise will not be required to be, so regulated or registered, and will be qualified to act as a broker or dealer in the states or other jurisdictions where the nature of its business so requires. Certain Authorized Participants may be regulated under federal and state banking laws and regulations. Each Authorized Participant will have its own set of rules and procedures, internal controls and information barriers as it determines is appropriate in light of its own regulatory regime.

Authorized Participants may act for their own accounts or as agents for broker -dealers, custodians and other securities market participants that wish to create or redeem Creation Units.

Persons interested in purchasing Creation Units should contact the Sponsor or the Administrator to obtain the contact information for the Authorized Participants. Shareholders who are not Authorized Participants will only be able to redeem their Shares through an Authorized Participant.

Under the form of Authorized Participant Agreement, the Sponsor will agree to indemnify the Authorized Participants against certain liabilities, including liabilities under the 1933 Act, and to contribute to the payments the Authorized Participants may be required to make in respect of those liabilities.

The following description of the procedures for the creation and redemption of Creation Units is only a summary and an investor should refer to the relevant provisions of the Trust Agreement and the form of Authorized Participant Agreement for more detail. The Trust Agreement and the form of Authorized Participant Agreement are filed as exhibits to the registration statement of which this Prospectus is a part.

 

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Creation Procedures

On any business day, an Authorized Participant may place an order with the Distributor to create one or more Creation Units. For purposes of processing both purchase and redemption orders, a “business day” means any day other than a day when any of AMEX, the New York Stock Exchange (“NYSE”), and as applicable to the underlying benchmark, the CME, the CBOT, the ICE/NYBOT, the LME or the NYMEX as well as their COMEX division) is closed for regular trading. Purchase orders must be placed one hour prior to the earliest applicable closing time of the exchange upon which a benchmarked commodity or component of an index trades or upon the platform which a currency is valued. If a purchase order is received prior to the applicable cut-off time, the day on which SEI receives a valid purchase order is the purchase order date. If the purchase order is received after the applicable cut-off time, the purchase order date will be the next day. Purchase orders are irrevocable. By placing a purchase order, and prior to delivery of such Creation Units, an Authorized Participant’s DTC account will be charged the nonrefundable transaction fee due for the purchase order.

Determination of required payment

The total payment required to create each Creation Unit is the NAV of 50,000 Shares of the applicable Fund on the purchase order date. Authorized Participants have a cut-off as shown in the table below.

 

Underlying Benchmark

  

Create/Redeem Cutoff

  

NAV Calculation Time

Silver

   6:00 a.m. (Eastern Time)    7:00 a.m. (Eastern Time)

Gold

   9:00 a.m. (Eastern Time)    10:00 a.m. (Eastern Time)

DJ-AIG Agriculture

   12:30 p.m. (Eastern Time)    2:15 p.m. (Eastern Time)

DJ-AIG Commodity

   10:45 a.m. (Eastern Time)    2:30 p.m. (Eastern Time)

DJ-AIG Crude Oil

   1:30 p.m. (Eastern Time)    2:30 p.m. (Eastern Time)

Euro

   3:00 p.m. (Eastern Time)    4:00 p.m. (Eastern Time)

Yen

   3:00 p.m. (Eastern Time)    4:00 p.m. (Eastern Time)

 

* For silver and gold this time may vary due to differences in when daylight savings time is effective between London and New York. The actual times will equate to noon London time for silver, and 3pm London time for gold.

Delivery of Cash

Cash required for settlement must be transferred directly to the Custodian through the DTC on a Delivery Versus Payment (DVP) basis. If the Custodian does not receive the cash by the market close on the third (3rd) Business Day following the purchase order date (T+3), such order may be charged interest for delayed settlement or cancelled. In the event a purchase order is cancelled, the Authorized Participant will be responsible for reimbursing the Fund for all costs associated with cancelling the order including costs for repositioning the portfolio. At its sole discretion, the Sponsor may agree to a delivery date other than T+3. The Creation Unit will be delivered to the Authorized Participant upon the Custodian’s receipt of the purchase amount.

Suspension or Rejection of Purchase Orders

In respect of any Fund, the Sponsor may, in its discretion, suspend the right of repurchase, or postpone the purchase settlement date, (i) for any period during which any of the AMEX, NYSE, CME, CBOT, ICE/NYBOT, LME or NYMEX/COMEX is closed other than for customary holidays or weekend closings or when trading is suspended or restricted on such exchanges in any of the underlying commodities; (ii) for any period during which an emergency exists as a result of which the redemption distribution is not reasonably practicable; or (iii) for such other period as the Sponsor determines to be necessary for the protection of the shareholders. The Sponsor will not be liable to any person or in any way for any loss or damages that may result from any such suspension or postponement.

The Sponsor also may reject a purchase order if:

 

   

it determines that the purchase order is not in proper form;

 

   

the Sponsor believes that the purchase order would have adverse tax consequences to any Fund or its shareholders;

 

   

the Order would in the opinion of counsel be illegal; or

 

   

circumstances outside the control of the Sponsor make it, for all practical purposes, not feasible to process creations of Creation Units.

 

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None of the Sponsor, the Administrator or the Custodian will be liable for the rejection of any purchase order.

Redemption Procedures

The procedures by which an Authorized Participant can redeem one or more Creation Units mirror the procedures for the creation of Creation Units. On any business day, an Authorized Participant may place an order with the Distributor to redeem one or more Creation Units. Redemption orders must be placed one hour prior to the earliest applicable closing time of the exchange upon which a benchmarked commodity or component of an index trades or upon the platform which a currency is valued. If a redemption order is received prior to the applicable cut-off time, the day on which SEI receives a valid redemption order is the redemption order date. If the redemption order is received after the applicable cut-off time, the redemption order date will be the next day. Redemption orders are irrevocable. The redemption procedures allow Authorized Participants to redeem Creation Units. Individual shareholders may not redeem directly from a Fund.

By placing a redemption order, an Authorized Participant agrees to deliver the Creation Units to be redeemed through DTC’s book-entry system to the applicable Fund not later than noon (Eastern Time), on the third business day immediately following the redemption order date (T+3). By placing a redemption order, and prior to receipt of the redemption proceeds, an Authorized Participant must wire to the Custodian the non-refundable transaction fee due for the redemption order or any proceeds due will be reduced by the amount of the fee payable. At its sole discretion, the Sponsor may agree to a delivery date other than T+3.

Determination of redemption proceeds

The redemption proceeds from a Fund consist of the cash redemption amount. The cash redemption amount is equal to the NAV of the number of Creation Unit(s) of such Fund requested in the Authorized Participant’s redemption order as of the time of the calculation of such Fund’s NAV on the redemption order date, less transaction fees.

Delivery of redemption proceeds

The redemption proceeds due from a Fund are delivered to the Authorized Participant at noon (Eastern Time), on the third business day immediately following the redemption order date if, by such time on such business day immediately following the redemption order date, the Fund’s DTC account has been credited with the Creation Units to be redeemed. If the Fund’s DTC account has not been credited with all of the Creation Units to be redeemed by such time, the redemption distribution is delivered to the extent of whole Creation Units received. Any remainder of the redemption distribution is delivered on the next business day to the extent of remaining whole Creation Units received if the Sponsor receives the fee applicable to the extension of the redemption distribution date which the Sponsor may, from time-to-time, determine and the remaining Creation Units to be redeemed are credited to the Fund’s DTC account by noon (Eastern Time), on such next business day. Any further outstanding amount of the redemption order may be cancelled. The Authorized Participant will be responsible for reimbursing the Fund for all costs associated with cancelling the order including costs for repositioning the portfolio.

The Sponsor is also authorized to deliver the redemption distribution notwithstanding that the Creation Units to be redeemed are not credited to the Fund’s DTC account by noon (Eastern Time), on the third business day immediately following the redemption order date if the Authorized Participant has collateralized its obligation to deliver the Creation Units through DTC’s book-entry system on such terms as the Sponsor may determine from time-to-time.

Suspension or Rejection of Redemption Orders

In respect of any Fund, the Sponsor may, in its discretion, suspend the right of redemption, or postpone the redemption settlement date, (i) for any period during which any of the AMEX, NYSE, CME, CBOT, ICE/NYBOT, LME or NYMEX/COMEX is closed other than for customary holidays or weekend closings or when trading is suspended or restricted on such exchanges in any of the underlying commodities; (ii) for any period during which an

 

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emergency exists as a result of which the redemption distribution is not reasonably practicable; or (iii) for such other period as the Sponsor determines to be necessary for the protection of the shareholders. The Sponsor will not be liable to any person or in any way for any loss or damages that may result from any such suspension or postponement.

The Sponsor will reject a redemption order if the order is not in proper form as described in the form of Authorized Participant Agreement or if the fulfillment of the order, in the opinion of its counsel, might be unlawful.

Creation and Redemption Transaction Fee

To compensate BBH for services in processing the creation and redemption of Creation Units and to offset the costs of increasing or decreasing derivative positions, an Authorized Participant is required to pay a fixed transaction fee of $500 per order to create or redeem Creation Units and a variable transaction fee of up to 0.10% of the value of a Creation Unit. The Trust currently expects that the variable Transaction Fee will be 0.022% for the Commodity Funds and Commodity Index Funds and 0.0% for the Currency Funds. An order may include multiple Creation Units. The transaction fee may be reduced, increased or otherwise changed by the Sponsor.

Special Settlement

The Sponsor may allow for early settlement of purchase or redemption orders. Such arrangements may result in additional charges to the Authorized Participant.

 

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LITIGATION

As of the date this registration statement is filed, there is no material administrative, civil or criminal action, existing or concluded, within five years preceding the date of this Prospectus against the Sponsor or any of its principals, nor is any such action pending. In addition, no litigation is pending in which any director, officer or affiliate of the Trust, any owner of record or beneficially of more than five percent of any class of voting securities of the Trust, or any associate of any such director, officer or affiliate of the Trust, or security holder is a party adverse to the Trust.

From time to time PBC (in its capacity as a commodities broker) and its principals may be involved in numerous legal actions, some of which individually and all of which in the aggregate, seek significant or indeterminate damages. However, except for the action described below, PBC has advised that during the five years preceding the date of this prospectus there has been no material administrative, civil, or criminal action against PBC or any of its principals.

In April, 2006, one of PBC’s commodities brokers filed an arbitration proceeding in connection with the broker’s termination based upon allegations of sexual harassment. The broker alleged that the termination was a pretext to steal his business without compensation. The claims, brought against an affiliate of PBC, included fraud, breach of contract, unjust enrichment, quantum meruit and defamation. The claimant sought damages in excess of $28 million, of which $25 million was for defamation, and unspecified punitive damages. The parties settled this matter in December 2007, prior to the arbitration hearing scheduled for January 2008. The former employee executed a Settlement Agreement and General Release dismissing the matter with prejudice, essentially in exchange for commissions owed, interest and certain costs associated with the proceeding.

 

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DESCRIPTION OF THE SHARES; THE FUNDS; CERTAIN MATERIAL

TERMS OF THE TRUST AGREEMENT

The following summary describes in brief the Shares and certain aspects of the operation of the Trust, each Fund, and the respective responsibilities of the Trustee and the Sponsor concerning the Trust and the material terms of the Trust Agreement. Prospective investors should carefully review the Trust Agreement filed as an exhibit to the registration statement of which this Prospectus is a part and consult with their own advisers concerning the implications to such prospective subscribers of investing in a series of a Delaware statutory trust. Capitalized terms used in this section and not otherwise defined shall have such meanings assigned to them under the Trust Agreement.

Description of the Shares

Each Fund will issue common units of beneficial interest, or Shares, which represent units of fractional undivided beneficial interest in and ownership of such Fund. The Shares of each Fund will be listed on the AMEX, or any successor entity thereto, under the following symbols:

 

Fund

   Ticker Symbol

Ultra DJ-AIG Commodity ProShares

   UCD

UltraShort DJ-AIG Commodity ProShares

   CMD

Ultra DJ-AIG Agriculture ProShares

   HOE

UltraShort DJ-AIG Agriculture ProShares

   SOW

Ultra DJ-AIG Crude Oil ProShares

   USF

UltraShort DJ-AIG Crude Oil ProShares

   OLS

Ultra Gold ProShares

   ULD

UltraShort Gold ProShares

   UGL

Ultra Silver ProShares

   AGQ

UltraShort Silver ProShares

   ZSL

Ultra Euro ProShares

   ULE

UltraShort Euro ProShares

   EXZ

Ultra Yen ProShares

   YCL

UltraShort Yen ProShares

   YCS

The Shares may be purchased from each Fund or redeemed on a continuous basis, but only by Authorized Participants and only in blocks of 50,000 Shares, or Creation Units. Individual Shares may not be purchased or redeemed from a Fund. Shareholders that are not Authorized Participants may not purchase or redeem any Shares or Creation Units from a Fund.

On January 17, 2008, the AMEX and NYSE Euronext announced that they had entered into a definitive agreement where the NYSE Euronext was to acquire the AMEX. Therefore, it is expected that the listings of the Funds will be moved from the AMEX to NYSE Arca sometime during the third or fourth quarters of 2008. The Sponsor does not expect that the transition of the Funds’ listing from the AMEX to NYSE Arca will create any difficulties.

Principal Office; Location of Records

The Trust is organized as a statutory trust under the DSTA. The Trust is managed by the Sponsor, whose office is located at 7501 Wisconsin Avenue, Suite 1000, Bethesda, Maryland 20814.

The books and records of each Fund will be maintained as follows: all marketing materials will be maintained at the offices of SEI, One Freedom Valley Drive, Oaks, Pennsylvania 19456. Creation Unit creation and redemption books and records, certain financial books and records (including Fund accounting records, ledgers with respect to assets, liabilities, capital, income and expenses, the registrar, transfer journals and related details) and certain trading and related documents received from FCMs will be maintained by BBH, 50 Milk Street, Boston, Massachusetts 02109.

 

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All other books and records of each Fund (including minute books and other general corporate records, trading records and related reports) will be maintained at each Fund’s principal office, c/o ProShare Capital Management LLC, 7501 Wisconsin Avenue, Suite 1000, Bethesda, Maryland 20814.

Trust books and records located at the foregoing addresses, are available for inspection and copying (upon payment of reasonable reproduction costs) by Fund shareholders or their representatives for any purposes reasonably related to such shareholder’s interest as a beneficial owner during regular business hours as provided in the Trust Agreement. The Sponsor will maintain and preserve the Trust’s books and records for a period of not less than six years.

The Funds

The Trust is formed and will be operated in a manner such that each Fund will be liable only for obligations attributable to such Fund and shareholders of a Fund will not be subject to the losses or liabilities of any other Fund. If any creditor or shareholder in a Fund asserted against a Fund a valid claim with respect to its indebtedness or Shares, the creditor or shareholder would only be able to recover money from that particular Fund and its assets. Accordingly, the debts, liabilities, obligations and expenses, or collectively, Claims, incurred, contracted for or otherwise existing solely with respect to a particular Fund will be enforceable only against the assets of that Fund, and not against any other Fund or the Trust generally, or any of their respective assets. The assets of each Fund include only those funds and other assets that are paid to, held by or distributed to the Fund on account of and for the benefit of that Fund, including, without limitation, funds delivered to the Trust for the purchase of Shares or Units in a Fund. This limitation on liability is referred to as the “Inter-Series Limitation on Liability.” The Inter-Series Limitation on Liability is expressly provided for under the DSTA, which provides that if certain conditions (as set forth in Section 3804(a)) are met, then the debts of any particular series will be enforceable only against the assets of such series and not against the assets of any other Fund or the Trust generally.

In furtherance of the Inter-Series Limitation on Liability, every party providing services to the Trust, any Fund or the Sponsor on behalf of the Trust or any Fund, will acknowledge and consent in writing to:

 

   

the Inter-Series Limitation on Liability with respect to such party’s Claims;

 

   

voluntarily reduce the priority of its Claims against the Funds or their assets, such that its Claims are junior in right of repayment to all other parties’ Claims against the Funds or their assets, except that Claims against the Trust where recourse for the payment of such Claims was, by agreement, limited to the assets of a particular Fund, will not be junior in right of repayment, but will receive repayment from the assets of such particular Fund (but not from the assets of the other Fund or the Trust generally) equal to the treatment received by all other creditors and shareholders that dealt with such Fund; and

 

   

a waiver of certain rights that such party may have under the United States Bankruptcy Code, if such party held collateral for its Claims, in the event that the Trust is a debtor in a Chapter 11 case under the United States Bankruptcy Code, to have any deficiency Claim ( i.e. , the difference, if any, between the amount of the Claim and the value of the collateral) treated as an unsecured Claim against the Trust generally or any Fund.

The existence of a trustee should not be taken as an indication of any additional level of management or supervision over a Fund. The Trustee acts in an entirely passive role.

The Trustee

Wilmington Trust Company, a Delaware banking corporation, is the sole Trustee of the Trust. The rights and duties of the Trustee and the Sponsor with respect to the offering of the Shares and Fund management and the shareholders are governed by the provisions of the DSTA and by the Trust Agreement. The Trustee will accept service of legal process on the Trust in the State of Delaware and will make certain filings under the DSTA. The Trustee does not owe any other duties to the Trust, the Sponsor or the shareholders of any Fund. The Trustee’s principal offices are located at 1100 North Market Street, Wilmington, Delaware 19890. The Trustee is unaffiliated with the Sponsor.

 

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The Trustee is permitted to resign upon at least sixty (60) days’ notice to the Trust, provided , that any such resignation will not be effective until a successor Trustee is appointed by the Sponsor. The Trustee will be compensated by each Fund, as appropriate, and is indemnified by each Fund, as appropriate, against any expenses it incurs relating to or arising out of the formation, operation or termination of such Fund, as appropriate, or the performance of its duties pursuant to the Trust Agreement, except to the extent that such expenses result from the gross negligence or willful misconduct of the Trustee. The Sponsor has the discretion to replace the Trustee.

Only the Sponsor has signed the registration statement of which this Prospectus is a part, and only the assets of the Trust and the Sponsor are subject to issuer liability under the federal securities laws for the information contained in this Prospectus and under federal securities laws with respect to the issuance and sale of the Shares. Under such laws, neither the Trustee, either in its capacity as Trustee or in its individual capacity, nor any director, officer or controlling person of the Trustee is, or has any liability as, the issuer or a director, officer or controlling person of the issuer of the Shares. The Trustee’s liability in connection with the issuance and sale of the Shares is limited solely to the express obligations of the Trustee set forth in the Trust Agreement.

Under the Trust Agreement, the Sponsor has exclusive management and control of all aspects of the Trust’s business. The Trustee will have no duty or liability to supervise the performance of the Sponsor, nor will the Trustee have any liability for the acts or omissions of the Sponsor. The shareholders have no voice in the day to day management of the business and operations of the Funds and the Trust, other than certain limited voting rights as set forth in the Trust Agreement. In the course of its management of the business and affairs of the Funds and the Trust, the Sponsor may, in its sole and absolute discretion, appoint an affiliate or affiliates of the Sponsor as additional sponsors and retain such persons, including affiliates of the Sponsor, as it deems necessary to effectuate and carry out the purposes, business and objectives of the Trust.

Because the Trustee has no authority over the Trust’s operations, the Trustee itself is not registered in any capacity with the CFTC.

The Sponsor

As noted above, the Sponsor has exclusive management and control of all aspects of the business of each Fund. The Trustee will have no duty or liability to supervise the performance of the Sponsor, nor will the Trustee have any liability for the acts or omissions of the Sponsor.

The Sponsor will serve as the Trust’s commodity pool operator and commodity trading advisor.

Specifically, with respect to the Trust, the Sponsor:

 

   

selects the Funds’ service providers;

 

   

negotiates various agreements and fees;

 

   

performs such other services as the Sponsor believes that the Trust may require from time-to-time;

 

   

selects the FCM and Financial Instrument counterparties;

 

   

manages each Fund’s portfolio of other assets, including cash equivalents; and

 

   

manages the Funds with a view toward achieving the Funds’ investment objectives.

The Shares are not deposits or other obligations of the Sponsor, the Trustee or any of their respective subsidiaries or affiliates or any other bank, are not guaranteed by the Sponsor, the Trustee or any of their respective subsidiaries or affiliates or any other bank and are not insured by the Federal Deposit Insurance Corporation or any other governmental agency. An investment in the Shares of any Fund offered hereby is speculative and involves a high degree of risk.

 

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The principal office of the Sponsor is located at 7501 Wisconsin Avenue, Suite 1000, Bethesda, Maryland 20814. The telephone number of the Sponsor is (240) 497-6400.

Background and Principals

ProShare Capital Management LLC, is the Sponsor of the Trust and the Funds. The Sponsor serves as both commodity pool operator and commodity trading advisor of the Trust and each Fund. The Sponsor is registered as a commodity pool operator and commodity trading advisor with the CFTC and is a member of the NFA and is a member in good standing of the NFA. The Sponsor’s membership with the NFA was originally approved on June 11, 1999. It withdrew its registration with the NFA on August 31, 2000 but later re-applied and had its registration subsequently approved on January 8, 2001. Its membership with the NFA is currently effective. The Sponsor’s registration as a commodity trading advisor was approved on June 11, 1999 and is currently effective. The Sponsor’s registration as a commodity pool operator was originally approved on June 11, 1999. It withdrew its registration as a commodity pool operator on August 30, 2000 but later re-applied and had its registration subsequently approved on November 28, 2007. Its registration as a commodity pool operator is currently effective. Its principal place of business is 7501 Wisconsin Avenue, Suite 1000, Bethesda, Maryland 20814, telephone number (240) 497-6400. The registration of the Sponsor with the CFTC and its membership in the NFA must not be taken as an indication that either the CFTC or the NFA has recommended or approved the Sponsor, the Trust and each Fund.

In its capacity as a commodity pool operator, the Sponsor will be an organization which operates or solicits funds for commodity pools; that is, an enterprise in which funds contributed by a number of persons are combined for the purpose of trading futures contracts. In its capacity as a commodity trading advisor, the Sponsor is an organization which, for compensation or profit, advises others as to the value of or the advisability of buying or selling futures contracts.

Executive Officers of the Trust and Principals and Significant Employees of the Sponsor

 

Name

    

Position

Michael L. Sapir      Chief Executive Officer and Principal of the Sponsor
Louis M. Mayberg      Principal Executive Officer of the Trust; Chief Financial Officer and Principal of the Sponsor
William E. Seale      Principal of the Sponsor
Edward J. Karpowicz      Principal Financial Officer of the Trust
George O. Foster      Acting Chief Investment Officer and Director of Portfolio of the Sponsor
Howard S. Rubin      Senior Portfolio Manager and Associated Person of the Sponsor
Steven Schoffstall      Associate Portfolio Manager and Associated Person of the Sponsor

The following is a biographical summary of the business experience of the executive officers of the Trust and the principals and significant employees of the Sponsor.

ProFund Advisors LLC (“PFA”) and ProShare Advisors LLC (“PSA”) are investment advisers registered under the Investment Advisers Act of 1940.

Michael L. Sapir, Chairman, Chief Executive Officer and a registered principal of the Sponsor since June 16, 2008; Chairman, Chief Executive Officer and a member of PFA since April 1997; and Chairman, Chief Executive Officer and a member of PSA since January 2005. As Chairman, Chief Executive Officer of the Sponsor, PSA and PFA, Mr. Sapir’s responsibilities include oversight of all aspects of the Sponsor, PSA and PFA, respectively.

Louis M. Mayberg , Chief Financial Officer, a member and a registered principal of the Sponsor since June 9, 2008; a member of PFA since April 1997; and a member of PSA, since January 2005. Principal Executive Officer of the Trust since June 2008. As Chief Financial Officer of the Sponsor, Mr. Mayberg’s responsibilities include oversight of the financial matters of the Sponsor. As Principal Executive Officer of the Trust, his responsibilities include oversight of operations of the Trust.

William E. Seale, Ph.D. , a member of the Sponsor and a registered principal and associated person of the Sponsor since June 11, 1999 and an NFA associated member since January 8, 2001; a member of PFA since April 1997 and a member of PSA since April 2005. As a principal and an associated person of the Sponsor, Dr. Seale is responsible for approving the trading model upon which Fund trading decisions are made. Dr. Seale has been the Chief Economist of PFA and PSA since April 2005. As Chief Economist, Dr. Seale is responsible for oversight of general economic conditions impacting the business of PFA and PSA and for contributing to product development. He served as Chief Investment Officer of PFA from January 2003 to July 2005 and from October 2006 June 2008 and Director of Portfolio from January 1997 to January 2003. He served as Chief Investment Officer of PSA from October 2006 to June 2008. In these roles, Dr. Seale’s responsibilities included oversight of the investment management activities of the respective entities. Dr. Seale is a former commissioner of the U.S. Commodity Futures Trading Commission.

Edward J. Karpowicz , Principal Financial Officer of the Trust since July 2008. Mr. Karpowicz has been employed by PFA since July 2002.

George O. Foster, CFA , Acting Chief Investment Officer and Director of Portfolio of the Sponsor since July 2008. In these roles, Mr. Foster’s responsibilities include oversight of the investment management activities of the Sponsor. Mr. Foster has served as Acting Chief Investment Officer of PSA since June 2008; and Director of Portfolio of PSA since September 2007. Mr. Foster has served as Acting Chief Investment Officer of PFA since June 2008; Director of Portfolio of PFA since 2004; Assistant Director of Portfolio and Senior Portfolio Manager of PFA from 2002 to 2004. Mr. Foster holds the Chartered Financial Analyst (CFA) designation and is a member of the Washington Association of Money Managers.

Howard Rubin, CFA , Senior Portfolio Manager, a registered associated person and an NFA associate member of the Sponsor since July 14, 2008. In these roles, Mr. Rubin’s responsibilities include day-to-day portfolio management of the Funds. Mr. Rubin has served as Senior Portfolio Manager of PSA since December 2007. Mr. Rubin has also served as Senior Portfolio Manager of PFA since November 2004 and Portfolio Manager of PFA from April 2000 through November 2004. Mr. Rubin holds the Chartered Financial Analyst (CFA) designation.

Steve Schoffstall , a registered associated person and an NFA associate member of the Sponsor since June 9, 2008, and June 2, 2008, respectively; and Associate Portfolio Manager of the Sponsor since July 2008. In these roles, Mr. Schoffstall’s responsibilities include day-to-day portfolio management of the Funds. Mr. Schoffstall has served as Associate Portfolio Manager of PSA since September 2007; Portfolio Analyst of PSA from May 2007 to September 2007; Junior Portfolio Analyst of PSA from December 2006 to May 2007; Portfolio Operations Specialist of PSA from June 2006 to December 2006. Mr. Schoffstall has also served as Portfolio Group Team Member and ETF Portfolio Operations Specialist of PFA from February 2005 to June 2006. Prior to February 2005, Mr. Schoffstall was not employed in the financial services industry.

 

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Fiduciary and Regulatory Duties of the Sponsor

The general fiduciary duties which would otherwise be imposed on the Sponsor (which would make its operation of the Trust as described herein impracticable due to the strict prohibition imposed by such duties on, for example, conflicts of interest on behalf of a fiduciary in its dealings with its beneficiaries), are replaced by the terms of the Trust Agreement (to which terms all shareholders, by subscribing to the Shares, are deemed to consent).

The Trust Agreement provides that the Sponsor and its affiliates shall have no liability to the Trust or to any shareholder for any loss suffered by the Trust arising out of any action or inaction of the Sponsor or its affiliates or their respective directors, officers, shareholders, partners, members, managers or employees (the “Sponsor Related Parties”), if the Sponsor Related Parties, in good faith, determined that such course of conduct was in the best interests of the Fund, as applicable, and such course of conduct did not constitute gross negligence or willful misconduct by the Sponsor Related Parties. The Trust has agreed to indemnify the Sponsor Related Parties against claims, losses or liabilities based on their conduct relating to the Trust, provided that the conduct resulting in the claims, losses or liabilities for which indemnity is sought did not constitute gross negligence or willful misconduct and was done in good faith and in a manner reasonably believed to be in the best interests of the Funds.

Under Delaware law, a beneficial owner of a statutory trust (such as a shareholder of each Fund) may, under certain circumstances, institute legal action on behalf of himself and all other similarly situated beneficial

 

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owners (a “class action”) to recover for violations of fiduciary duties, or on behalf of a statutory trust (a “derivative action”) to recover damages from a third party where there has been a failure or refusal to institute proceedings to recover such damages. In addition, beneficial owners may have the right, subject to certain legal requirements, to bring class actions in federal court to enforce their rights under the federal securities laws and the rules and regulations promulgated thereunder by the SEC. Beneficial owners who have suffered losses in connection with the purchase or sale of their beneficial interests may be able to recover such losses from the Sponsor where the losses result from a violation by the Sponsor of the anti-fraud provisions of the federal securities laws.

Under certain circumstances, shareholders also have the right to institute a reparations proceeding before the CFTC against the Sponsor (a registered commodity pool operator and commodity trading advisor), the FCM, as well as those of their respective employees who are required to be registered under the CEA, and the rules and regulations promulgated thereunder. Private rights of action are conferred by the CEA. Investors in futures and in commodity pools may, therefore, invoke the protections provided thereunder.

The foregoing summary describing in general terms the remedies available to shareholders under federal law is based on statutes, rules and decisions as of the date of this Prospectus. As this is a rapidly developing and changing area of the law, shareholders who believe that they may have a legal cause of action against any of the foregoing parties should consult their own counsel as to their evaluation of the status of the applicable law at such time.

Ownership or Beneficial Interest in the Funds

The Sponsor may maintain an investment in each Fund. Principals may have an ownership or beneficial interest in a Fund.

Management; Voting by Shareholders

The shareholders of each Fund take no part in the management or control, and have no voice in the Trust’s operations or business.

The Sponsor has the right unilaterally to amend the Trust Agreement as it applies to any Fund provided that the shareholders have the right to vote only if expressly required under Delaware or federal law or rules or regulations of the AMEX or a similar national securities exchange, or if submitted to the shareholders by the Sponsor in its sole discretion. No amendment affecting the Trustee shall be binding upon or effective against the Trustee unless consented to by the Trustee in writing.

Recognition of the Trust and the Funds in Certain States

A number of states do not have “statutory trust” statutes such as that under which the Trust has been formed in the State of Delaware. It is possible, although unlikely, that a court in such a state could hold that, due to the absence of any statutory provision to the contrary in such jurisdiction, the shareholders, although entitled under Delaware law to the same limitation on personal liability as stockholders in a private corporation for profit organized under the laws of the State of Delaware, are not so entitled in such state.

Possible Repayment of Distributions Received by Shareholders

The Shares are limited liability investments; investors may not lose more than the amount that they invest plus any profits recognized on their investment. However, shareholders of a Fund could be required, as a matter of bankruptcy law, to return to the estate of such Fund any distribution they received at a time when such Fund was in fact insolvent or in violation of the Trust Agreement.

 

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Shares Freely Transferable

The Shares of each Fund will trade on the AMEX and provide institutional and retail investors with direct access to each Fund. Each Fund’s Shares may be bought and sold on the AMEX like any other exchange listed security.

Book-Entry Form

Individual certificates will not be issued for the Shares. Instead, global certificates are deposited by the Trust with DTC and registered in the name of Cede & Co., as nominee for DTC. The global certificates evidence all of the Shares outstanding at any time. Under the Trust Agreement, shareholders are limited to (1) participants in DTC such as banks, brokers, dealers and trust companies (DTC Participants), (2) those who maintain, either directly or indirectly, a custodial relationship with a DTC Participant (Indirect Participants), and (3) those banks, brokers, dealers, trust companies and others who hold interests in the Shares through DTC Participants or Indirect Participants. The Shares are only transferable through the book-entry system of DTC. Shareholders who are not DTC Participants may transfer their Shares through DTC by instructing the DTC Participant holding their Shares (or by instructing the Indirect Participant or other entity through which their Shares are held) to transfer the Shares. Transfers are made in accordance with standard securities industry practice.

Reports to Shareholders

The Sponsor will furnish shareholders of record with an annual report of each Fund in which such shareholders are invested within 90 calendar days after the end of such Fund’s fiscal year as required by the rules and regulations of the SEC as well as with those reports required by the CFTC and the NFA, including, but not limited to, an annual audited financial statement certified by independent registered public accountants and any other reports required by any other governmental authority that has jurisdiction over activities of the Funds. Shareholders of record will also be provided with appropriate information to permit them to file United States federal and state income tax returns (on a timely basis) with respect to Shares held. Monthly account statements conforming to CFTC and NFA requirements, as well as annual and quarterly reports and other filings made with the SEC, will be posted on the Sponsor’s website at www.proshares.com . Additional reports may be posted on the Sponsor’s website in the discretion of the Sponsor or as required by applicable regulatory authorities.

The Sponsor will notify shareholders of any change in the fees paid by the Trust or of any material changes to a Fund by filing with the SEC a supplement to this Prospectus and a Form 8-K, which will be publicly available at www.sec.gov and at the Sponsor’s website at www.proshares.com . Any such notification will include a description of shareholders’ voting rights.

Net Asset Value “NAV”

The NAV in respect of a Fund, means the total assets of the Fund including, but not limited to, all cash and cash equivalents or other debt securities less total liabilities of such Fund, each determined on the basis of generally accepted accounting principles in the United States, consistently applied under the accrual method of accounting. In particular, NAV includes any unrealized profit or loss on open swaps and futures contracts, and any other credit or debit accruing to a Fund but unpaid or not received by a Fund. The NAV per Share of each Fund is computed by dividing the value of the net assets of such Fund ( i.e. , the value of its total assets less total liabilities) by its total number of Shares outstanding. Expenses and fees are accrued daily and taken into account for purposes of determining NAV.

 

Fund

  

NAV Calculation Time

Ultra Silver ProShares

UltraShort Silver ProShares

   7:00 a.m. (Eastern Time) *

Ultra Gold ProShares

UltraShort Gold ProShares

   10:00 a.m. (Eastern Time) *

Ultra DJ-AIG Agriculture ProShares

UltraShort DJ-AIG Agriculture ProShares

   2:15 p.m. (Eastern Time)

Ultra DJ-AIG Commodity ProShares

UltraShort DJ-AIG Commodity ProShares

   2:30 p.m. (Eastern Time)

 

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Ultra DJ-AIG Crude Oil ProShares

UltraShort DJ-AIG Crude Oil ProShares

   2:30 p.m. (Eastern Time)

Ultra Euro ProShares

UltraShort Euro ProShares

   4:00 p.m. (Eastern Time)

Ultra Yen ProShares

UltraShort Yen ProShares

   4:00 p.m. (Eastern Time)

 

* For silver and gold, this time may vary due to differences in when daylight savings time is effective between London and New York. The actual times will equate to noon London time for silver, and 3 p.m. London time for gold.

In calculating the indicative NAV of a Commodity Index Fund, the settlement value of a Commodity Index Funds’ swap agreements or forward contracts, as applicable, will be determined by applying the then-current disseminated value for the applicable Dow Jones—AIG sub-index to the terms of such Commodity Index Funds’ swap agreements. The sponsor of the Dow Jones—AIG sub-indices, (the “Index Sponsor”), is Dow Jones—AIG. In calculating the indicative NAV of a Commodity Fund or a Currency Fund, the settlement value of the Fund’s swap agreements or forward contracts, as applicable, will be determined by applying the then-current disseminated values for the applicable benchmark to the terms of such Fund’s swap agreements or forward contracts. However, in the event that an underlying commodity is not trading due to the operation of daily limits or otherwise, the Sponsor may in its sole discretion choose to fair value the index level in order to value the Fund’s swap and forward agreements for purposes of NAV calculation.

All open futures contracts traded on a United States exchange will be calculated at their then current market value, which will be based upon the settlement price for that particular futures contract traded on the applicable United States exchange on the date with respect to which NAV is being determined; provided , that if a futures contract traded on a United States exchange could not be liquidated on such day, due to the operation of daily limits or other rules of the exchange upon which that position is traded or otherwise, the Sponsor may in its sole discretion choose to determine a fair value price as the basis for determining the market value of such position for such day. The current market value of all open futures contracts traded on a non-United States exchange, to the extent applicable, will be based upon the settlement price for that particular futures contract traded on the applicable non-United States exchange on the date with respect to which NAV is being determined; provided further , that if a futures contract traded on a non-United States exchange, to the extent applicable, could not be liquidated on such day, due to the operation of daily limits (if applicable) or other rules of the exchange upon which that position is traded or otherwise, the Sponsor may in its sole discretion choose to determine a fair value price as the basis for determining the market value of such position for such day. The Sponsor may in its sole discretion (and under extraordinary circumstances, including, but not limited to, periods during which a settlement price of a futures contract is not available due to exchange limit orders or force majeure type events such as systems failure, natural or manmade disaster, act of God, armed conflict, act of terrorism, riot or labor disruption or any similar intervening circumstance) value any asset of a Fund pursuant to such other principles as the Sponsor deems fair and equitable so long as such principles are consistent with normal industry standards. The amount of any distribution will be a liability of such Fund from the day when the distribution is declared until it is paid.

Intraday Indicative Value (“IIV”)

The IIV is an indicator of the value of the Financial Instruments and cash and receivables less liabilities of a Fund at the time the IIV is disseminated. The AMEX will calculate and disseminate every 15 seconds throughout the trading day an updated IIV. The IIV will be calculated by the AMEX using the prior day’s closing net assets of the Fund as a base and updating throughout the trading day changes in the value of swap agreements, futures contracts and forward contracts held by the Fund. The IIV should not be viewed as an actual real time update of the NAV because NAV is calculated only once at the end of each trading day. The IIV also should not be viewed as a precise value of the Shares.

The AMEX will disseminate the IIV. In addition, the IIV will be published on the AMEX’s website and will be available through on-line information services such as Bloomberg and Reuters.

Dissemination of the IIV provides additional information that is not otherwise available to the public and may be useful to investors and market professionals in connection with the trading of Shares. Investors and market professionals will be able throughout the trading day to compare the market price of a Fund and the IIV. If the

 

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market price of Shares diverges significantly from the IIV, market professionals may have an incentive to execute arbitrage trades. Such arbitrage trades can tighten the tracking between the market price of a Fund and the IIV and thus can be beneficial to all market participants.

Termination Events

The Trust, or, as the case may be, a Fund, may be dissolved at any time and for any reason by the Sponsor with written notice to the shareholders.

 

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DISTRIBUTIONS

The Sponsor has discretionary authority over all distributions made by each Fund. To the extent that a Fund’s actual and projected interest income from its holdings of interest-bearing investments exceeds the actual and projected fees and expenses of the Fund, the Sponsor may make distributions of the amount of such excess. The Funds currently do not expect to make distributions with respect to capital gains or income. Depending on the applicable Fund’s performance for the taxable year and an investor’s own tax situation for such year, an investor’s income tax liability for the taxable year for his, her or its allocable share of such Fund’s net ordinary income or loss and capital gain or loss may exceed any distributions an investor receives with respect to such year.

Each Fund will make distributions at the discretion of the Sponsor. The Funds currently do not expect to make capital gain or income distributions. Income earned from each Fund’s investment will be allocated pro rata to each investor based on his, her or its holdings in the Fund. An investor’s income tax liability for his or her pro rata share of the Fund’s income and capital gains will, in all likelihood, exceed any distributions such investor receives.

 

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THE ADMINISTRATOR

The Sponsor, on behalf of the Funds, has appointed BBH as the administrator of the Funds and has entered into an Administrative Agency Agreement in connection therewith. In addition, BBH will serve as Transfer Agent of the Funds pursuant to the Administrative Agency Agreement.

BBH is subject to supervision by the New York State Banking Department. A copy of the Administrative Agency Agreement is available for inspection at BBH’s offices identified above.

The Administrator’s fees are paid on behalf of the Funds by the Sponsor out of the Management Fee.

Pursuant to the terms of the Administrative Agency Agreement and under the supervision and direction of the Sponsor, BBH will prepare and file certain regulatory filings on behalf of the Funds. BBH may also perform other services for the Funds pursuant to the Administrative Agency Agreement as mutually agreed from time-to-time.

The Administrator and any of its affiliates may from time-to-time purchase or sell Shares for their own account, as agent for their customers and for accounts over which they exercise investment discretion.

The Sponsor, on behalf of the Funds, is expected to retain the services of one or more additional service providers to assist with certain tax reporting requirements of the Funds and their shareholders.

THE CUSTODIAN

BBH will serve as custodian of the Funds and has entered into a Custodian Agreement in connection therewith. Pursuant to the terms of the Custodian Agreement, BBH will be responsible for the holding and safekeeping of assets delivered to it by the Funds, and performing various administrative duties in accordance with instructions delivered to BBH by the Funds. The Custodian’s fees are paid on behalf of the Funds by the Sponsor out of the Management Fee.

THE TRANSFER AGENT

BBH will serve as the Transfer Agent of the Funds and has entered into an Administrative Agency Agreement referred to above in connection therewith. Pursuant to the terms of the Administrative Agency Agreement, BBH will be responsible for processing purchase and redemption orders and maintaining records of the ownership of the Funds. The Transfer Agent fees are paid on behalf of the Funds by the Sponsor out of the Management Fee.

DISTRIBUTOR

SEI will serve as Distributor of the Funds and will assist the Sponsor and the Administrator with functions and duties relating to distribution and marketing, which include the following: taking creation and redemption orders, consulting with the marketing staff of the Sponsor and its affiliates with respect to compliance with FINRA in connection with marketing efforts; and reviewing and filing of marketing materials with FINRA.

SEI will retain all marketing materials separately for each Fund, at the offices of SEI, One Freedom Valley Drive, Oaks, PA 19456; telephone number (610) 676-1000.

The Sponsor, out of the relevant Management Fee, will pay SEI for performing its duties on behalf of the Funds.

Description of SEI

SEI is a wholly-owned subsidiary of SEI Investments Company, which is a public company and a global provider of investment processing, fund processing, and investment management business outsourcing solutions.

 

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PRUDENTIAL BACHE COMMODITIES, LLC

PBC, in its capacity as a registered FCM, will serve as the Funds’ clearing broker and as such will arrange for the execution and clearing of the Fund’s futures and options on futures transactions. PBC acts as clearing broker for many other funds and individuals.

The Investors should be advised that PBC is not affiliated with and does not act as a supervisor of the Funds or the Funds’ commodity trading advisors, investment managers, trustees, general partners, administrators, transfer agents, registrars or organizers. Additionally, PBC is not acting as an underwriter or sponsor of the offering of any shares or interests in the Funds and has not passed upon the merits of participating in this offering.

PBC has not passed upon the adequacy of this prospectus or on the accuracy of the information contained herein. Additionally, PBC does not provide any commodity trading advice regarding the Funds’ trading activities. Investors should not rely upon PBC in deciding whether to invest in the Funds or retain their interests in the Funds. Investors should also note that the Funds may select additional clearing brokers or replace PBC as the Fund’s clearing broker.

Initial Margin Levels Expected to be Held at the FCM

The following is based on current expectations on how each Fund initially will be managed. While the portfolio composition may vary over time, it is not expected that any Fund will ever have futures exposure greater than 200% of Fund assets. Thus the maximum margin held at an FCM would not exceed twice the margin requirement. The margin levels described below are based upon current exchange requirements for non-hedger accounts. It is possible that a Fund’s FCM will require margins greater than the levels set by the relevant exchange and it is also possible that a Fund may qualify for the lower margin levels available to hedge accounts. However, because there is no certainty as to these probabilities, the estimates are made with the assumption that the applicable margin levels for the Funds are the current exchange margin levels for non-hedger accounts. The expected amount is listed first and the maximum amount is listed second. These amounts are based on current margin requirements and current futures levels. They will fluctuate with changes to either factor.

Initially, Ultra DJ-AIG Commodities ProShares and UltraShort DJ-AIG Commodities ProShares do not expect to hold futures contracts. As of August 12, 2008, margin requirement as a percent of futures notional is 5.8%. Thus, the margin held at futures clearing merchants is expected to be 0% Fund assets. Maximum margin held based on current margin requirements would be 11.6%

Initially, Ultra DJ-AIG Agriculture ProShares and UltraShort DJ-AIG Agriculture ProShares do not expect to hold futures contracts. As of August 12, 2008, margin requirement as a percent of futures notional is 8%. Thus, the margin held at futures clearing merchants is expected to be 0% Fund assets. Maximum margin held based on current margin requirements would be 16%.

Initially, Ultra DJ-AIG Crude Oil ProShares and UltraShort DJ-AIG Crude Oil ProShares each expect to have futures contracts with notional amounts in the vicinity of 40% of Fund assets. As of August 12, 2008, margin requirement as a percent of futures notional is 10.4%. Thus, the expected margin held at futures clearing merchants will be about 4.2% of Fund assets (the product of 40% and 10.4%.) Maximum margin held based on current margin requirements would be 20.8%.

Initially, Ultra Gold ProShares and UltraShort Gold ProShares each expect to have futures contracts with notional amounts in the vicinity of 10% of Fund assets. As of August 12, 2008, margin requirement as a percent of futures notional is 6.2%. Thus, the expected margin held at futures clearing merchants will be about 0.6% of Fund assets (the product of 10% and 6.2%). Maximum margin held based on current margin requirements would be 12.4%.

Initially, Ultra Silver ProShares and UltraShort Silver ProShares each expect to have futures contracts with notional amounts in the vicinity of 10% of Fund assets. As of August 12, 2008, margin requirement as a percent of futures notional is 9.2%. Thus, the expected margin held at futures clearing merchants will be about 0.9% of Fund assets (the product of 10% and 9.2%). Maximum margin held based on current margin requirements would be 18.4%.

 

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Initially, Ultra Euro ProShares and UltraShort Euro ProShares each expect to have futures contracts with notional amounts in the vicinity of 5% of Fund assets. As of August 12, 2008, margin requirement as a percent of futures notional is 1.7%. Thus, the expected margin held at futures clearing merchants will be about 0.1% of Fund assets (the product of 5% and 1.7%). Maximum margin held based on current margin requirements would be 3.4%.

Initially, Ultra Yen ProShares and UltraShort Yen ProShares each expect to have futures contracts with notional amounts in the vicinity of 5% of Fund assets. As of August 12, 2008, margin requirement as a percent of futures notional is 2.4%. Thus, the expected margin held at futures clearing merchants will be about 0.1% of Fund assets (the product of 5% and 2.4%). Maximum margin held based on current margin requirements would be 4.8%.

The Funds will receive the income on any securities or other property of the Fund transferred to the FCM to fulfill requirements for margin to be held by the FCM in respect of commodity interests, and will receive a negotiated portion of any income derived by the FCM in respect of any cash transferred to the FCM and held for this purpose.

THE SECURITIES DEPOSITORY; BOOK-ENTRY ONLY SYSTEM; GLOBAL SECURITY

DTC acts as securities depository for the Shares. DTC is a limited purpose trust company organized under the laws of the State of New York, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of section 17A of the 1934 Act. DTC was created to hold securities of DTC Participants and to facilitate the clearance and settlement of transactions in such securities among the DTC Participants through electronic book-entry changes. This eliminates the need for physical movement of securities certificates. DTC Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations, some of whom (and/or their representatives) own DTC. Access to the DTC system is also available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a DTC Participant, either directly or indirectly. DTC has agreed to administer its book-entry system in accordance with its rules and bylaws and the requirements of law.

Individual certificates will not be issued for the Shares. Instead, global certificates are signed by the Sponsor on behalf of each Fund, registered in the name of Cede & Co., as nominee for DTC, and deposited with the Trust on behalf of DTC. The global certificates evidence all of the Shares of each Fund outstanding at any time. The representations, undertakings and agreements made on the part of each Fund in the global certificates are made and intended for the purpose of binding only the applicable Fund and not the Trustee or the Sponsor individually.

Upon the settlement date of any creation, transfer or redemption of Shares, DTC credits or debits, on its book-entry registration and transfer system, the amount of the Shares so created, transferred or redeemed to the accounts of the appropriate DTC Participants. The Sponsor and the Authorized Participants designate the accounts to be credited and charged in the case of creation or redemption of Shares.

Beneficial ownership of the Shares is limited to DTC Participants, Indirect Participants and persons holding interests through DTC Participants and Indirect Participants. Owners of beneficial interests in the Shares is shown on, and the transfer of ownership is effected only through, records maintained by DTC (with respect to DTC Participants), the records of DTC Participants (with respect to Indirect Participants) and the records of Indirect Participants (with respect to shareholders that are not DTC Participants or Indirect Participants). Shareholders are expected to receive from or through the DTC Participant maintaining the account through which the shareholder has purchased their Shares a written confirmation relating to such purchase.

Shareholders that are not DTC Participants may transfer the Shares through DTC by instructing the DTC Participant or Indirect Participant through which the shareholders hold their Shares to transfer the Shares. Shareholders that are DTC Participants may transfer the Shares by instructing DTC in accordance with the rules of DTC. Transfers are made in accordance with standard securities industry practice.

DTC may decide to discontinue providing its service with respect to Creation Units and/or the Shares of each Fund by giving notice to the Trust and the Sponsor. Under such circumstances, the Sponsor will either find a replacement for DTC to perform its functions at a comparable cost or, if a replacement is unavailable, terminate such Fund.

 

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The rights of the shareholders generally must be exercised by DTC Participants acting on their behalf in accordance with the rules and procedures of DTC. Because the Shares can only be held in book-entry form through DTC and DTC Participants, investors must rely on DTC, DTC Participants and any other financial intermediary through which they hold the Shares to receive the benefits and exercise the rights described in this section. Investors should consult with their broker or financial institution to find out about procedures and requirements for securities held in book-entry form through DTC.

SHARE SPLITS

If the Sponsor believes that the per Share price of a Fund in the secondary market has fallen outside a desirable trading price range, the Sponsor may direct the Trust to declare a split or reverse split in the number of Shares outstanding and to make a corresponding change in the number of Shares of such Fund constituting a Creation Unit.

CONFLICT OF INTEREST

The Sponsor has not established formal procedures to resolve all potential conflicts of interest. Consequently, investors may be dependent on the good faith of the respective parties subject to such conflicts to resolve them equitably. Neither the Sponsor nor any of its principals will trade for their own accounts in any commodity interests. The Sponsor does not expect that material conflicts of interest will arise in the operation of the Funds, which will each operate independently of the others. However, since the Sponsor in its capacity as the Trust’s commodity pool operator has chosen itself to serve as the Trust’s commodity trading advisor, the Sponsor may be deemed as having a conflict of interest concerning its ability to exercise independent judgment in respect of the selection or retention of a trading advisor for the Funds.

 

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MATERIAL CONTRACTS

Administrative Agency Agreement

BBH will serve as each Fund’s Administrator pursuant to the terms of the Administrative Agency Agreement among the Trust, on behalf of itself and on behalf of each of the Funds, the Administrator and the Sponsor. The Administrator will perform or supervise the performance of services necessary for the operation and administration of each Fund (other than making investment decisions or providing services provided by other service providers), including NAV calculations, accounting and other fund administrative services.

BBH will serve as each Fund’s Transfer Agent. Pursuant to the Administrative Agency Agreement among the Trust, on behalf of itself and on behalf of the Funds, the Transfer Agent and the Sponsor, the Transfer Agent will serve as each Fund’s transfer agent, dividend or distribution disbursing agent, and agent in connection with certain other activities as provided under the Administrative Agency Agreement. Under the Administrative Agency Agreement, the Transfer Agent’s services will include, among other things, assisting the Funds’ with the issuance and redemption of Creation Units to and from Authorized Participants, recording the issuance of Creation Units and maintaining a record of the total number of Creation Units that are authorized, issued and outstanding based upon data provided to the Transfer Agent by the Funds or the Sponsor.

The Administrative Agency Agreement has an initial term of three years and, after the initial term, will continue in effect for successive one year periods unless terminated on at least seventy-five (75) days’ prior written notice by any party to the other parties. Notwithstanding the foregoing, any party may terminate the Administrative Agency Agreement upon sixty (60) days’ prior written notice if such party has materially failed to perform its obligations under the Administrative Agency Agreement.

In its capacity as Administrator and Transfer Agent, BBH is both exculpated and indemnified under the Administrative Agency Agreement.

Custodian Agreement

BBH will serve as each Fund’s Custodian. Pursuant to the Custodian Agreement between the Trust, on its own behalf and on behalf of each Fund, and the Custodian, the Custodian will serve as custodian of all securities and cash at any time delivered to the Custodian by each respective Fund during the term of the Custodian Agreement and has authorized the Custodian to hold its securities in its name or the names of its nominees. Pursuant to the terms of the Custodian Agreement, the Custodian may deposit and/or maintain the investment assets of a Fund in a securities depository and may appoint a subcustodian to hold investment assets of the Fund. The Custodian will establish and will maintain one or more securities accounts and cash accounts for each Fund pursuant to the Custodian Agreement. The Custodian will maintain separate and distinct books and records segregating the assets of each Fund.

The Custodian Agreement has an initial term of three (3) years. After the initial term, the Custodian Agreement will continue in effect for successive one year periods unless the Trust, on behalf of each Fund, independently, or the Custodian terminates the Custodian Agreement by giving to the other party a notice in writing specifying the date of such termination, which will not be less than seventy-five (75) days after the date of such notice. In the event of the appointment of a successor custodian, the parties agree that the investment assets of a Fund held by the Custodian or any subcustodian shall be delivered to the successor custodian in accordance with reasonable instructions described in the Custodian Agreement. The parties further agree to cooperate in the execution of documents and performance of other actions necessary or desirable in order to facilitate the succession of the new custodian. If no successor custodian is appointed, the Custodian shall in like manner transfer the Fund’s investment assets in accordance with the instructions set forth in the Custodian Agreement. If no instructions are given as of the effective date of termination, the Custodian may, at any time on or after such termination date and upon ten (10) consecutive calendar days’ written notice to the Fund, either: (a) deliver the investment assets held under the Custodian Agreement to the Fund; or (b) deliver any investment assets held under the Custodian Agreement to a bank or trust company that meets the criteria set forth in the Custodian Agreement, with such delivery being at the risk of the Fund. In the event that investment assets or moneys of the Fund remain in the custody of the Custodian or its subcustodians after the date of termination of the Custodian Agreement due to the

 

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failure of the Fund to issue instructions with respect to its disposition or the fact that such disposition could not be accomplished in accordance with such instructions despite diligent efforts of the Custodian, the Custodian shall be entitled to compensation for its services with respect to such investments and moneys during such period as the Custodian or its subcustodians retain possession of such items, and the provisions of the Custody Agreement shall remain in full force and effect until the disposition of the investment assets.

The Custodian is both exculpated and indemnified under the Custodian Agreement.

Distribution Agreement

Pursuant to the Distribution Agreement between the Trust and SEI, SEI will assist the Sponsor and the Administrator with certain functions and duties relating to distribution and marketing of Shares including reviewing and approving marketing materials.

The date of the Distribution Agreement will become effective on the date of the initial public offering of the Shares and the Distribution Agreement will continue until three years from such date and thereafter will continue automatically for successive periods of three years. The Distribution Agreement may be terminated by either party at the end of initial term or the end of any renewal term on ninety (90) days’ written notice. Notwithstanding the foregoing, either party may terminate the Distribution Agreement in the event of a material breach of the agreement by the other party, upon forty-five (45) days’ prior written notice, if such breach is not cured. The Distribution Agreement will automatically terminate in the event of a liquidation of the Trust.

Futures Account Agreement

PBC, in its capacity as a registered FCM, will serve as the Funds’ clearing broker and as such will arrange for the execution and clearing of the Fund’s futures and options on futures transactions. Pursuant to the Futures Account Agreement between PBC and the Funds, the Funds agree to indemnify and hold harmless PBC, its directors, officers, employees, agents and affiliates from and against all claims, damages, losses and costs (including reasonable attorneys’ fees) incurred by PBC in connection with: (a) any failure by the Funds to perform its obligations under the Futures Account Agreement and any exercise by PBC of its rights and remedies thereunder; (b) any failure by the Funds to comply with the applicable law; (c) any action reasonably taken by PBC or its affiliates or agents to comply with the applicable law; and (d) any reliance by PBC on any instruction, notice or communication that PBC reasonably believes to originate from a person authorized to act on behalf of the Funds. Also, the Funds agree to remain liable for and pay to PBC on demand the amount of any deficiency in the Funds’ Accounts, and the Funds shall reimburse, compensate and indemnify PBC for any and all costs, losses, penalties, fines, taxes and damages that PBC may incur in collecting such deficiency or otherwise exercising its rights and remedies under the Futures Account Agreement.

The Futures Account Agreement may be terminated at any time by the Funds or PBC by written notice to the other.

 

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MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS

The following discussion describes the material United States federal (and certain state and local) income tax considerations associated with the purchase, ownership and disposition of Shares as of the date hereof by United States Shareholders (as defined below) and non-United States Shareholders (as defined below). Except where noted, this discussion deals only with Shares held as capital assets by shareholders who acquired Shares by purchase and does not address special situations, such as those of:

 

   

dealers in securities or commodities;

 

   

financial institutions;

 

   

regulated investment companies;

 

   

real estate investment trusts;

 

   

partnerships and persons in their capacity as partners;

 

   

tax-exempt organizations;

 

   

insurance companies;

 

   

persons holding Shares as a part of a hedging, integrated or conversion transaction or a straddle;

 

   

traders in securities that elect to use a mark-to-market method of accounting for their securities holdings; or

 

   

persons liable for alternative minimum tax.

Furthermore, the discussion below is based upon the provisions of the Internal Revenue Code of 1986, as amended, (the “Code”), the Treasury regulations promulgated thereunder, (the “Regulations”), and administrative and judicial interpretations thereof, all as of the date hereof, and such authorities may be repealed, revoked, modified or subject to differing interpretations, possibly on a retroactive basis, so as to result in United States federal income tax consequences different from those described below.

A “U.S. Shareholder” of Shares means a beneficial owner of Shares that is for United States federal income tax purposes:

 

   

an individual that is a citizen or resident of the United States;

 

   

a corporation (or other entity taxable as a corporation) created or organized in or under the laws of the United States, any state thereof or the District of Columbia;

 

   

an estate the income of which is subject to United States federal income taxation regardless of its source; or

 

   

a trust if it (1) is subject to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all substantial decisions of such trust or (2) has a valid election in effect under applicable Regulations to be treated as a U.S. person.

A “non-U.S. Shareholder” of Shares means a beneficial owner of Shares that is not for United States federal income tax purposes:

 

   

an individual that is a nonresident alien;

 

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a foreign corporation;

 

   

a foreign estate; or

 

   

a foreign trust.

If a partnership or other entity or arrangement treated as a partnership for United States federal income tax purposes holds Shares, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If an investor is a partner of a partnership holding Shares, the Trust urges investors to consult their own tax adviser.

No statutory, administrative or judicial authority directly addresses the treatment of Shares or instruments similar to Shares for United States federal income tax purposes. As a result, the Trust cannot assure investors that the IRS or the courts will agree with the tax consequences described herein. A different treatment from that described below could adversely affect the amount, timing and character of income, gain or loss in respect of an investment in the Shares. If an investor is considering the purchase of Shares, the Trust urges investors to consult their own tax adviser concerning the particular United States federal income tax consequences to investors of the purchase, ownership and disposition of Shares, as well as any consequences to investors arising under the laws of any other taxing jurisdiction .

Status of the Funds

Generally, a partnership is not a taxable entity for United States federal income tax purposes and incurs no United States federal income tax liability. Section 7704 of the Code provides that publicly traded partnerships are generally taxed as corporations. However, an exception exists with respect to publicly traded partnerships of which 90% or more of the gross income during each taxable year consists of “qualifying income” within the meaning of Section 7704(d) of the Code, or the qualifying income exception. Qualifying income includes dividends, interest, capital gains from the sale or other disposition of stocks and debt instruments and, in the case of a partnership a principal activity of which is the buying and selling of commodities or certain positions with respect to commodities, income and gains derived from swap agreements or regulated forward or futures contracts with respect to commodities. Each Fund anticipates that at least 90% of its gross income for each taxable year will constitute qualifying income within the meaning of Section 7704(d) of the Code.

Under current law and assuming full compliance with the terms of the Trust Agreement (and other relevant documents) and based upon factual representations made by each Fund, in the opinion of Clifford Chance US LLP, each Fund will be classified as a partnership for United States federal income tax purposes. The factual representations upon which Clifford Chance US LLP has relied are: (a) the Fund has not elected and will not elect to be treated as a corporation for United States federal income tax purposes; and (b) for each taxable year, 90% or more of the Fund’s gross income will be qualifying income.

There can be no assurance that the IRS will not assert that a Fund should be treated as a publicly traded partnership taxable as a corporation. No ruling has been or will be sought from the IRS, and the IRS has made no determination as to the status of a Fund for United States federal income tax purposes or whether the Fund’s operations generate “qualifying income” under Section 7704(d) of the Code. Whether a Fund will continue to meet the qualifying income exception is a matter that will be determined by the Fund’s operations and the facts existing at the time of future determinations. However, each Fund’s Sponsor will use its best efforts to cause the operation of the Fund in such manner as is necessary for the Fund to continue to meet the qualifying income exception.

If a Fund fails to satisfy the qualifying income exception described above (other than a failure which is determined by the IRS to be inadvertent and which is cured within a reasonable period of time after the discovery of such failure), the Fund will be treated as if it had transferred all of its assets, subject to its liabilities, to a newly formed corporation, on the first day of the year in which it failed to satisfy the exception, in return for stock in that corporation, and then distributed that stock to the shareholders in liquidation of their interests in the company. This contribution and liquidation generally should be tax free to shareholders of the relevant Fund so long as the Fund, at that time, does not have liabilities in excess of its tax basis in its assets. Thereafter, the Fund would be treated as a

 

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corporation for United States federal income tax purposes. If a Fund were taxable as a corporation in any taxable year, either as a result of a failure to meet the qualifying income exception described above or otherwise, its items of income, gain, loss and deduction would be reflected only on its tax return rather than being passed through to the shareholders, and its net income would be taxed to it at the income tax rates applicable to domestic corporations. In addition, any distribution made by the Fund would be treated as taxable dividend income, to the extent of the Fund’s current or accumulated earnings and profits, or, in the absence of current and accumulated earnings and profits, a nontaxable return of capital to the extent of each shareholder’s tax basis in its Shares, or taxable capital gain, after the shareholder’s tax basis in its Shares is reduced to zero. Taxation of a Fund as a corporation could result in a material reduction in a shareholder’s cash flow and after-tax return and thus could result in a substantial reduction of the value of the Shares of the Fund.

The discussion below is based on Clifford Chance US LLP’s opinion that each Fund will be classified as a partnership that is not subject to corporate income tax for United States federal income tax purposes.

U.S. Shareholders

Treatment of Fund Income

A partnership does not incur United States federal income tax liability. Instead, each partner of a partnership is required to take into account its share of items of income, gain, loss, deduction and other items of the partnership. Accordingly, each shareholder in the Fund will be required to include in income its allocable share of the Fund’s income, gain, loss, deduction and other items for the Fund’s taxable year ending with or within its taxable year. In computing a partner’s United States federal income tax liability, such items must be included, regardless of whether cash distributions are made by the partnership. Thus, shareholders in the Fund may be required to take into account taxable income without a corresponding current receipt of cash if the Fund generates taxable income but does not make cash distributions in an amount equal to, or if the shareholder is not able to deduct, in whole or in part, such shareholder’s allocable share of the Fund’s expenses or capital losses. Each Fund’s taxable year will end on December 31 unless otherwise required by law. Each Fund will use the accrual method of accounting.

Shareholders will take into account their share of ordinary income realized by the respective Fund’s investments, including from accruals of interest on the U.S. Treasury Bills or other cash and cash equivalents held in the Fund’s portfolio. Each Fund may hold U.S. Treasury Bills or other debt instruments with “acquisition discount” or “original issue discount”, in which case shareholders in the Fund would be required to include accrued amounts in taxable income on a current basis even though receipt of those amounts may occur in a subsequent year. Each Fund may also acquire U.S. Treasury Bills with “market discount.” Upon disposition of such obligations, gain would generally be required to be treated as interest income to the extent of the market discount, and shareholders in the Fund would be required to include as ordinary income their share of such market discount that accrued during the period the obligations were held by the Fund.

The character and timing of income that the Fund earns from the positions in its investment strategy will depend on the particular U.S. federal income tax treatment of each such position. The U.S. federal income tax treatment of certain positions is not always clear, and the IRS and Congress sometimes take steps which change the manner in which certain positions are taxed. For example, except as discussed below with respect to 1256 contracts, positions in currencies typically produce ordinary income and gains for U.S. federal income tax purposes. The IRS has recently issued guidance indicating that a position that certain taxpayers were accounting for as prepaid forward contracts for U.S. federal income tax purposes should, instead, be accounted for under the U.S. federal income tax rules for non-dollar denominated debt instruments. The IRS has also recently released a Notice seeking comments from practitioners about the application of U.S. federal income tax rules to certain derivative positions, including derivative positions in commodities. The Notice asks for comments about, among other questions, when investors in these positions should have income, the character of income and gain or loss from these positions and whether the U.S. federal “constructive ownership” rules should apply to these positions. It is not possible to predict what changes, if any, will be adopted or when any such changes would take effect. However, any such changes could affect the amount, timing and character of income, gain and loss in respect of a Fund’s investments, possibly with retroactive effect. As the Funds pass -through their items of income, gain and loss to Shareholders, any change in the manner in which a Fund accounts for these items could have an adverse impact on the shareholders of that Fund.

 

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The Code generally applies a “mark-to-market” system of taxing unrealized gains and losses on, and otherwise provides for special rules of taxation with respect to, Section 1256 Contracts. A Section 1256 Contract includes certain regulated futures contracts, options and currency contracts. Section 1256 Contracts held by the Funds at the end of a taxable year of the Funds will be treated for United States federal income tax purposes as if they were sold by the Funds at their fair market value on the last business day of the taxable year. The net gain or loss, if any, resulting from these deemed sales (known as “marking-to-market”), together with any gain or loss resulting from any actual sales of Section 1256 Contracts (or other termination of a Fund’s obligations under such contracts), must be taken into account by the Fund in computing its taxable income for the year. If a Section 1256 Contract held by a Fund at the end of a taxable year is sold in the following year, the amount of any gain or loss realized on the sale will be adjusted to reflect the gain or loss previously taken into account under the mark-to-market rules.

Capital gains and losses from Section 1256 Contracts generally are characterized as short-term capital gains or losses to the extent of 40% of the gains or losses and as long-term capital gains or losses to the extent of 60% of the gains or losses. Shareholders of a Fund will generally take into account their pro rata share of the long-term capital gains and losses and short-term capital gains and losses from Section 1256 Contracts held by the Fund. If a noncorporate taxpayer incurs a net capital loss for a year, the portion of the loss, if any, which consists of a net loss on Section 1256 Contracts may, at the election of the taxpayer, be carried back three years. A loss carried back to a year by a noncorporate taxpayer may be deducted only to the extent (1) the loss does not exceed the net gain on Section 1256 Contracts for the year and (2) the allowance of the carryback does not increase or produce a net operating loss for the year.

Allocation of the Funds’ Profits and Losses

For United States federal income tax purposes, a shareholder’s distributive share of a Fund’s income, gain, loss, deduction and other items will be determined by the Funds’ Trust Agreement, unless an allocation under the agreement does not have “substantial economic effect,” in which case the allocations will be determined in accordance with the “partners’ interests in the partnership.” Subject to the discussions below under “Monthly Allocation and Revaluation Conventions” and “Section 754 Election,” the allocations pursuant to the Funds Trust Agreement should be considered to have substantial economic effect or deemed to be made in accordance with the partners’ interests in the partnership.

If the allocations provided by the Fund’s Trust Agreement were successfully challenged by the IRS, the amount of income or loss allocated to shareholders for U.S. federal income tax purposes under the agreement could be increased or reduced, or the character of the income or loss could be modified.

As described in more detail below, the U.S. tax rules that apply to partnerships are complex and their application is not always clear. Additionally, the rules generally were not written for, and in some respects are difficult to apply to, publicly traded partnerships. Each Fund will apply certain assumptions and conventions intended to comply with the intent of the rules and to report income, gain, deduction, loss and credit to shareholders in a manner that reflects the economic gains and losses, but these assumptions and conventions may not comply with all aspects of the applicable Treasury regulations. It is possible, therefore, that the IRS will successfully assert that assumptions made and/or conventions used do not satisfy the technical requirements of the Code or the Treasury regulations and will require that tax items be adjusted or reallocated in a manner that could adversely impact an investor.

Monthly Allocation and Revaluation Conventions

In general, each Fund’s taxable income and losses will be determined monthly and will be apportioned among the shareholders of the Fund in proportion to the number of Shares treated as owned by each of them as of the close of the last trading day of the preceding month; provided , however , such items for the period beginning on the closing date and ending on the last day of the month in which the option closing date or the expiration of the over-allotment option occurs shall be allocated to the shareholders as of the opening of the AMEX on the first Business Day of the next succeeding month. By investing in Shares, a U.S. Holder agrees that, in the absence of an administrative determination or judicial ruling to the contrary, it will report income and loss under the monthly allocation and revaluation conventions described below, except for the period beginning on the closing date and ending on the last day of the month in which the option closing date or the expiration of the over-allotment option occurs, in which case the allocation shall take place as described above.

 

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Under the monthly allocation convention, whomever is treated for U.S. federal income tax purposes as holding Shares as of the close of the last trading day of the preceding month will be treated as continuing to hold the Shares until immediately before the close of the last trading day of the following month. As a result, a holder who has disposed of shares prior to the close of the last trading day of a month may be allocated income, gain, loss and deduction realized after the date of transfer.

The Code generally requires that items of partnership income and deductions be allocated between transferors and transferees of partnership interests on a daily basis. It is possible that transfers of Shares could be considered to occur for U.S. federal income tax purposes when the transfer is completed without regard to a Fund’s monthly convention for allocating income and deductions. If this were to occur, the Fund’s allocation method might be deemed to violate that requirement.

In addition, for any month in which a creation or redemption of Shares takes place, a Fund generally will credit or debit, respectively, the “book” capital accounts of the holders of existing Shares with any unrealized gain or loss in the Fund’s assets. This will result in the allocation of items of the Fund’s income, gain, loss, deduction and credit to existing holders of Shares to account for the difference between the tax basis and fair market value of property owned by the Fund at the time new Shares are issued or old Shares are redeemed, or the reverse section 704(c) allocations. The intended effect of these allocations is to allocate any built-in gain or loss in the Fund’s assets at the time of a creation or redemption of Shares to the investors that economically have earned such gain or loss.

As with the other allocations described above, each Fund generally will use a monthly convention for purposes of the reverse section 704(c) allocations. More specifically, each Fund generally will credit or debit, respectively, the “book” capital accounts of the holders of existing Shares with any unrealized gain or loss in the Fund’s assets based on a calculation utilizing the lowest trading price of the Fund’s Shares during the month in which the creation or redemption transaction takes place, rather than the fair market value of its assets at the time of such creation or redemption, or the “revaluation convention.” As a result, it is possible that, for U.S. federal income tax purposes, (i) a purchaser of newly issued Shares will be allocated some or all of the unrealized gain in the Fund’s assets at the time it acquires the Shares or (ii) a purchase of newly issued Shares will not be allocated its entire share in the loss in the Fund’s assets accruing after the time of such acquisition. Furthermore, the applicable Treasury regulations generally require that the “book” capital accounts will be adjusted based on the fair market value of partnership property on the date of adjustment and do not explicitly allow the adoption of a monthly revaluation convention. The Sponsor, in an attempt to eliminate book-tax disparities, expects that items of income, gain, or loss will be allocated for U.S. federal income tax purposes among the Members under the principles of the remedial method of Treasury Regulations Section 1.704-3(d).

The Code and applicable Treasury regulations generally require that items of partnership income and deductions be allocated between transferors and transferees of partnership interests on a daily basis, and that adjustments to “book” capital accounts be made based on the fair market value of partnership property on the date of adjustment. The Code and regulations do not contemplate monthly allocation or revaluation conventions. If the IRS does not accept a Fund’s monthly allocation or revaluation convention, the IRS may contend that taxable income or losses of the Funds must be reallocated among the shareholders. If such a contention were sustained, the holders’ respective tax liabilities would be adjusted to the possible detriment of certain holders. The Sponsor is authorized to revise the Funds’ allocation and revaluation methods in order to comply with applicable law or to allocate items of partnership income and deductions in a manner that reflects more accurately the shareholders’ interests in the Funds.

Section 754 Election

Each Fund intends to make the election permitted by Section 754 of the Code. Such an election, once made, is irrevocable without the consent of the IRS. The making of such election by a Fund will generally have the effect of requiring a purchaser of Shares in the Fund to adjust its proportionate share of the basis in the Fund’s assets, or the inside basis, pursuant to Section 743(b) of the Code to fair market value (as reflected in the purchase price for the purchaser’s Shares), as if it had acquired a direct interest in the Fund’s assets. The Section 743(b)

 

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adjustment is attributed solely to a purchaser of Shares and is not added to the basis of the Fund’s assets associated with all of the other shareholders. Depending on the relationship between a holder’s purchase price for Shares and its unadjusted share of the Fund’s inside basis at the time of the purchase, the Section 754 election may be either advantageous or disadvantageous to the holder as compared to the amount of gain or loss a holder would be allocated absent the Section 754 election.

The calculations under Section 754 of the Code are complex, and there is little legal authority concerning the mechanics of the calculations, particularly in the context of publicly traded partnerships. Therefore, if a Fund makes the election under Code Section 754, it is expected that the Fund will apply certain conventions in determining and allocating the Section 743 basis adjustments to help reduce the complexity of those calculations and the resulting administrative costs to the Fund. It is possible that the IRS will successfully assert that some or all of such conventions utilized by the Fund do not satisfy the technical requirements of the Code or the Regulations and, thus, will require different basis adjustments to be made.

In order to make the basis adjustments permitted by Section 754, each Fund will be required to obtain information regarding each holder’s secondary market transactions in Shares, as well as creations and redemptions of Shares. Each Fund will seek such information from the record holders of Shares, and, by purchasing Shares, each beneficial owner of Shares will be deemed to have consented to the provision of such information by the record owner of such beneficial owner’s Shares. Notwithstanding the foregoing, however, there can be no guarantee that any Fund will be able to obtain such information from record owners or other sources, or that the basis adjustments that any Fund makes based on the information it is able to obtain will be effective in eliminating disparity between a holder’s outside basis in its share of the Fund Interests and its share of inside basis.

Constructive Termination

A Fund will be considered to have terminated for tax purposes if there is a sale or exchange of 50% or more of the total Shares in the Fund within a 12-month period. A constructive termination results in the closing of a Fund’s taxable year for all holders of Shares in the Fund. In the case of a holder of Shares reporting on a taxable year other than the taxable year used by a Fund (which is expected to be a fiscal year ending December 31), the early closing of the Fund’s taxable year may result in more than 12 months of its taxable income or loss being includable in such holder’s taxable income for the year of termination. The Fund would be required to make new tax elections after a termination, including a new election under Section 754. A termination could also result in penalties if a Fund were unable to determine that the termination had occurred.

Treatment of Distributions

Distributions of cash by a partnership are generally not taxable to the distributee to the extent the amount of cash does not exceed the distributee’s tax basis in its partnership interest. Thus, any cash distributions made by a Fund will be taxable to a shareholder only to the extent such distributions exceed the shareholder’s tax basis in the partnership interests it is treated as owning. (See “Tax Basis in Shares” below.) Any cash distributions in excess of a shareholder’s tax basis generally will be considered to be gain from the sale or exchange of the Shares. See “Disposition of Shares” below.

Creation and Redemption of Creation Units

Shareholders, other than Authorized Participants (or holders for which an Authorized Participant is acting), generally will not recognize gain or loss as a result of an Authorized Participant’s creation or redemption of a Creation Unit of Shares. If the Fund disposes of assets in connection with the redemption of a Creation Unit of Shares, however, the disposition may give rise to gain or loss that will be allocated in part to investors. An Authorized Participant’s creation or redemption of a Creation Unit of Shares may also affect an investor’s share of a Fund’s tax basis in its assets, which could affect the amount of gain or loss allocated to an investor on the sale or disposition of portfolio assets by the Fund.

 

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Disposition of Shares

If a U.S. Shareholder transfers Shares of a Fund, in a sale or other taxable disposition, the U.S. Shareholder will generally be required to recognize gain or loss measured by the difference between the amount realized on the sale and the U.S. Shareholder’s adjusted tax basis in the Shares. The amount realized will include the U.S. Shareholder’s share of the Fund’s liabilities, as well as any proceeds from the sale. The gain or loss recognized will generally be taxable as capital gain or loss.

Capital gain of non-corporate U.S. Shareholders is eligible to be taxed at reduced rates when the Shares are held for more than one year. Capital gain of corporate U.S. Shareholders is taxed at the same rate as ordinary income. Any capital loss recognized by a U.S. Shareholder on a sale of Shares will generally be deductible only against capital gains, except that a non-corporate U.S. Shareholder may also offset up to $3,000 per year of ordinary income.

Tax Basis in Shares

A U.S. Shareholder’s initial tax basis in the partnership interests it is treated as holding will equal the sum of (a) the amount of cash paid by such U.S. Shareholder for its Shares and (b) such U.S. Shareholder’s share of the Fund’s liabilities. A U.S. Shareholder’s tax basis in the Shares will be increased by (a) the U.S. Shareholder’s share of the Fund’s taxable income, including capital gain, (b) the U.S. Shareholder’s share of the Fund’s income, if any, that is exempt from tax and (c) any increase in the U.S. Shareholder’s share of the Fund’s liabilities. A U.S. Shareholder’s tax basis in Shares will be decreased (but not below zero) by (a) the amount of any cash distributed (or deemed distributed) to the U.S. Shareholder, (b) the U.S. Shareholder’s share of the Fund’s losses and deductions, (c) the U.S. Shareholder’s share of the Fund’s expenditures that is neither deductible nor properly chargeable to its capital account and (d) any decrease in the U.S. Shareholder’s share of the Fund’s liabilities.

Limitations on Interest Deductions

The deductibility of a non-corporate U.S. Shareholder’s “investment interest expense” is generally limited to the amount of that shareholder’s “net investment income.” Investment interest expense would generally include interest expense incurred by a Fund, if any, and investment interest expense incurred by the U.S. Shareholder on any margin account borrowing or other loan incurred to purchase or carry Shares. Net investment income includes gross income from property held for investment and amounts treated as portfolio income, such as dividends and interest, under the passive loss rules, less deductible expenses, other than interest, directly connected with the production of investment income. For this purpose, any long-term capital gain or qualifying dividend income that is taxable at long-term capital gains rates is excluded from net investment income unless the U.S. Shareholder elects to pay tax on such capital gain or dividend income at ordinary income rates.

Organization, Syndication and Other Expenses

In general, expenses incurred that are considered “miscellaneous itemized deductions” may be deducted by a U.S. Shareholder that is an individual, estate or trust only to the extent that they exceed 2% of the adjusted gross income of such U.S. Shareholder. The Code imposes additional limitations (which are scheduled to be phased out between 2006 and 2010) on the amount of certain itemized deductions allowable to individuals by reducing the otherwise allowable portion of such deductions by an amount equal to the lesser of:

 

   

3% of the individual’s adjusted gross income in excess of certain threshold amounts; or

 

   

80% of the amount of certain itemized deductions otherwise allowable for the taxable year.

In addition, these expenses are also not deductible in determining the alternative minimum tax liability of a U.S. Shareholder. Each Fund will report such expenses on a pro rata basis to the shareholders, and each U.S. Shareholder will determine separately to what extent they are deductible on such U.S. Shareholder’s tax return. A U.S. Shareholder’s inability to deduct all or a portion of such expenses could result in an amount of taxable income to such U.S. Shareholder with respect to the Fund that exceeds the amount of cash actually distributed to such U.S. Shareholder for the year. It is anticipated that management fees that each Fund will pay will constitute miscellaneous itemized deductions.

 

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Under Section 709(b) of the Code, amounts paid or incurred to organize a partnership may, at the election of the partnership, be treated as deferred expenses, which are allowed as a deduction ratably over a period of 180 months. The Funds have not yet determined whether they will make such an election. A non-corporate U.S. Shareholder’s allocable share of such organizational expenses would constitute miscellaneous itemized deductions. Expenditures in connection with the issuance and marketing of Shares (so-called “syndication fees”) are not eligible for the 180-month amortization provision and are not deductible.

Passive Activity Income and Loss

Individuals are subject to certain “passive activity loss” rules under Section 469 of the Code. Under these rules, losses from a passive activity generally may not be used to offset income derived from any source other than passive activities. Losses that cannot be currently used under this rule may generally be carried forward. Upon an individual’s disposition of an interest in the passive activity, the individual’s unused passive losses may generally be used to offset other ( i.e. , non-passive) income. Under temporary Treasury regulations, income or loss from a Fund’s investments generally will not constitute income or losses from a passive activity. Therefore, income or loss from a Fund’s investments will not be available to offset a U.S. Shareholder’s passive losses or passive income from other sources.

Transferor/Transferee Allocations

In general, a Fund’s taxable income and losses will be determined monthly and will be apportioned among the Fund’s shareholders in proportion to the number of Shares owned by each of them as of the close of the last trading day of the preceding month; provided , however , such items for the period beginning on the closing date and ending on the last day of the month in which the option closing date or the expiration of the over-allotment option occurs shall be allocated to the shareholders as of the opening of the AMEX on the first Business Day of the next succeeding month. With respect to any Share that was not treated as outstanding as of the close of the last trading day of the preceding month, the first person that is treated as holding such Share (other than an underwriter or other person holding in a similar capacity and except with respect to the period beginning on the closing date and ending on the last day of the month in which the option closing date or the expiration of the over-allotment option occurs) for United States federal income tax purposes will be treated as holding such Share for this purpose as of the close of the last trading day of the preceding month. As a result, a shareholder transferring its Shares may be allocated income, gain, loss and deduction realized after the date of transfer.

Section 706 of the Code generally requires that items of partnership income and deductions be allocated between transferors and transferees of partnership interests on a daily basis. It is possible that transfers of Shares could be considered to occur for United States federal income tax purposes when the transfer is completed without regard to a Fund’s convention for allocating income and deductions. In that event, the Fund’s allocation method might be considered a monthly convention that does not literally comply with that requirement.

If the IRS treats transfers of Shares as occurring throughout each month and a monthly convention is not allowed by the Regulations (or only applies to transfers of less than all of a shareholder’s Shares), or if the IRS otherwise does not accept a Fund’s convention, the IRS may contend that taxable income or losses of the Fund must be reallocated among the shareholders. If such a contention were sustained, the shareholders’ respective tax liabilities would be adjusted to the possible detriment of certain shareholders. Each Fund’s Sponsor is authorized to revise the Fund’s methods of allocation between transferors and transferees (as well as among shareholders whose interests otherwise vary during a taxable period).

Tax Reporting by each Fund

Information returns will be filed with the IRS as required with respect to income, gain, loss, deduction and other items derived from Shares of each Fund. Each Fund will file a partnership return with the IRS and a Schedule K-1 to the shareholders.

 

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Treatment of Securities Lending Transactions Involving Shares

A shareholder whose Shares are loaned to a “short seller” to cover a short sale of Shares may be considered as having disposed of those Shares. If so, such shareholder would no longer be a beneficial owner of a pro rata portion of the partnership interests with respect to those Shares during the period of the loan and may recognize gain or loss from the disposition. As a result, during the period of the loan, (1) any of the relevant Fund’s income, gain, loss, deduction or other items with respect to those Shares would not be reported by the shareholder, and (2) any cash distributions received by the shareholder as to those Shares could be fully taxable, likely as ordinary income. Accordingly, shareholders who desire to avoid the risk of income recognition from a loan of their Shares to a short seller are urged to modify any applicable brokerage account agreements to prohibit their brokers from borrowing their Shares.

Audits and Adjustments to Tax Liability

Any challenge by the IRS to the tax treatment by a partnership of any item must be conducted at the partnership, rather than at the partner, level. A partnership ordinarily designates a “tax matters partner” (as defined under Section 6231 of the Code) as the person to receive notices and to act on its behalf in the conduct of such a challenge or audit by the IRS.

Pursuant to the Funds Trust Agreement, the Sponsor will be appointed the “tax matters partner” of each Fund for all purposes pursuant to Sections 6221-6231 of the Code. The tax matters partner, which is required by the Trust’s Trust Agreement to notify all U.S. Shareholders of any U.S. federal income tax audit of any Fund, will have the authority under the Trust Agreement to conduct any IRS audits of each Fund’s tax returns or other tax-related administrative or judicial proceedings and to settle or further contest any issues in such proceedings. The decision in any proceeding initiated by the tax matters partner will be binding on all U.S. Shareholders. As the tax matters partner, the Sponsor will have the right on behalf of all shareholders to extend the statute of limitations relating to the shareholders’ United States federal income tax liabilities with respect to Fund items.

A United States federal income tax audit of a Fund’s information return may result in an audit of the returns of the U.S. Shareholders, which, in turn, could result in adjustments of items of a shareholder that are unrelated to the Fund as well as to the Fund-related items. In particular, there can be no assurance that the IRS, upon an audit of an information return of a Fund or of an income tax return of a U.S. Shareholder, might not take a position that differs from the treatment thereof by the Fund. A U.S. Shareholder would be liable for interest on any deficiencies that resulted from any adjustments. Potential U.S. Shareholders should also recognize that they might be forced to incur substantial legal and accounting costs in resisting any challenge by the IRS to items in their individual returns, even if the challenge by the IRS should prove unsuccessful.

Foreign Tax Credits

Subject to generally applicable limitations, U.S. Shareholders will be able to claim foreign tax credits with respect to certain foreign income taxes paid or incurred by a Fund, withheld on payments made to the Trust or paid by the Trust on behalf of Fund shareholders (if any of such foreign income taxes are so paid, incurred or withheld). U.S. Shareholders must include in their gross income, for United States federal income tax purposes, both their share of the Fund’s items of income and gain and also their share of the amount which is deemed to be the shareholder’s portion of foreign income taxes paid with respect to, or withheld from interest or other income derived by, the Fund. U.S. Shareholders may then subtract from their United States federal income tax the amount of such taxes withheld, or else treat such foreign taxes as deductions from gross income; however, as in the case of investors receiving income directly from foreign sources, the tax credit or deduction described above is subject to certain limitations. Even if the shareholder is unable to claim a credit, he or she must include all amounts described above in income. U.S. Shareholders are urged to consult their tax advisers regarding this election and its consequences to them.

Tax Shelter Disclosure Rules

There are circumstances under which certain transactions must be disclosed to the IRS in a disclosure statement attached to a taxpayer’s United States federal income tax return. (A copy of such statement must also be

 

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sent to the IRS Office of Tax Shelter Analysis.) In addition, the Code imposes a requirement on certain “material advisers” to maintain a list of persons participating in such transactions, which list must be furnished to the IRS upon written request. These provisions can apply to transactions not conventionally considered to involve abusive tax planning. Consequently, it is possible that such disclosure could be required by a Fund or the shareholders (1) if a shareholder incurs a loss (in each case, in excess of a threshold computed without regard to offsetting gains or other income or limitations) from the disposition (including by way of withdrawal) of Shares, or (2) possibly in other circumstances. Furthermore, a Fund’s material advisers could be required to maintain a list of persons investing in the Fund pursuant to the Code. While the tax shelter disclosure rules generally do not apply to a loss recognized on the disposition of an asset in which the taxpayer has a qualifying basis (generally a basis equal to the amount of cash paid by the taxpayer for such asset), such rules will apply to a taxpayer recognizing a loss with respect to interests in a pass-through entity (such as the Shares) even if its basis in such interests is equal to the amount of cash it paid. In addition, under recently enacted legislation, significant penalties may be imposed in connection with a failure to comply with these reporting requirements. U.S. Shareholders are urged to consult their tax advisers regarding the tax shelter disclosure rules and their possible application to them.

Non-U.S. Shareholders

A non-U.S. Shareholder will not be subject to United States federal income tax on such shareholder’s distributive share of a Fund’s income, provided that such income is not considered to be income of the shareholder that is effectively connected with the conduct of a trade or business within the United States. In the case of an individual non-U.S. Shareholder, such shareholder will be subject to United States federal income tax on gains on the sale of Shares in a Fund’s or such shareholder’s distributive share of gains if such shareholder is present in the United States for 183 days or more during a taxable year and certain other conditions are met.

If the income from a Fund is “effectively connected” with a U.S. trade or business carried on by a non-U.S. Shareholder (and, if certain income tax treaties apply, is attributable to a U.S. permanent establishment), then such shareholder’s share of any income and any gains realized upon the sale or exchange of Shares will be subject to United States federal income tax at the graduated rates applicable to United States citizens and residents and domestic corporations. Non-U.S. Shareholders that are corporations may also be subject to a 30% U.S. branch profits tax (or lower treaty rate, if applicable) on their effectively connected earnings and profits that are not timely reinvested in a U.S. trade or business.

Non-U.S. Shareholders that are individuals will be subject to United States federal estate tax on the value of United States situs property owned at the time of their death (unless a statutory exemption or tax treaty exemption applies). It is unclear whether partnership interests such as the Shares will be considered United States situs property. Accordingly, non-U.S. Shareholders may be subject to U.S. federal estate tax on all or part of the value of the Shares owned at the time of their death.

Non-U.S. Shareholders are advised to consult their own tax advisers with respect to the particular tax consequences to them of an investment in the Shares.

Regulated Investment Companies

The treatment of a RIC’s investment in a Fund will depend, in part, on whether the Fund is classified as a qualified PTP for purposes of the RIC rules. RICs are only allowed to invest up to 25% of their assets in qualified PTPs and to treat net income derived from such investments as qualifying income for purposes of certain rules relevant to determining whether an entity qualifies as a RIC. Similarly, interests in a qualified PTP are treated as issued by such PTP and a RIC is not required to look through to the underlying partnership assets when testing compliance with certain asset diversification tests applicable to determining whether an entity qualified as a RIC. On the other hand, an investment by a RIC in a publicly traded partnership that is not a qualified PTP is not counted against the 25% limit on a RIC’s investments in qualified PTPs and the RIC is treated as owning its proportionate share of the partnership’s assets and earning its proportionate share of the partnership’s income for purposes of the income and asset tests relevant to determining whether an entity qualifies as a RIC.

 

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It is generally expected that the Commodity Index Funds will be qualified PTPs and that the Currency Funds will not. Prospective RIC investors should consult a tax adviser regarding the treatment of an investment in a Fund under current tax rules and in light of their particular circumstances.

Tax-Exempt Organizations

An organization that is otherwise exempt from U.S. federal income tax is nonetheless subject to taxation with respect to its “unrelated business taxable income,” or UBTI, to the extent that its UBTI from all sources exceeds $1,000 in any taxable year. Except as noted below with respect to certain categories of exempt income, UBTI generally includes income or gain derived (either directly or through a partnership) from a trade or business, the conduct of which is substantially unrelated to the exercise or performance of the organization’s exempt purpose or function.

UBTI generally does not include passive investment income, such as dividends, interest and capital gains, whether realized by the organization directly or indirectly through a partnership (such as the Funds) in which it is a partner. This type of income is exempt, subject to the discussion of “unrelated debt-financed income” below, even if it is realized from securities-trading activity that constitutes a trade or business.

UBTI includes not only trade or business income or gain as described above, but also “unrelated debt-financed income.” This latter type of income generally consists of (1) income derived by an exempt organization (directly or through a partnership) from income producing property with respect to which there is “acquisition indebtedness” at any time during the taxable year and (2) gains derived by an exempt organization (directly or through a partnership) from the disposition of property with respect to which there is acquisition indebtedness at any time during the twelve-month period ending with the date of the disposition.

To the extent a Fund recognizes gain from property with respect to which there is “acquisition indebtedness,” the portion of the gain that will be treated as UBTI will be equal to the amount of the gain multiplied by a fraction, the numerator of which is the highest amount of the “acquisition indebtedness” with respect to the property during the twelve-month period ending with the date of their disposition, and the denominator of which is the “average amount of the adjusted basis” of the property during the period that such property is held by the Fund during the taxable year. In determining the unrelated debt-financed income of a Fund, an allocable portion of deductions directly connected with the Fund’s debt-financed property will be taken into account. In making such a determination, for instance, a portion of losses from debt-financed securities (determined in the manner described above for evaluating the portion of any gain that would be treated as UBTI) would offset gains treated as UBTI. A charitable remainder trust will not be exempt from United States federal income tax under the Code for any year in which it has UBTI; in view of the potential for UBTI, the Shares are not a suitable investment for a charitable remainder trust.

Certain State and Local Taxation Matters

Prospective shareholders should consider, in addition to the United States federal income tax consequences described above, the potential state and local tax consequences of investing in the Shares.

State and local laws often differ from United States federal income tax laws with respect to the treatment of specific items of income, gain, loss, deduction and credit. A shareholder’s distributive share of the taxable income or loss of a Fund generally will be required to be included in determining the shareholder’s reportable income for state and local tax purposes in the jurisdiction in which the shareholder is a resident. A Fund may conduct business in one or more jurisdictions that will subject a shareholder to tax (and require a shareholder to file an income tax return with the jurisdiction with respect to the shareholder’s share of the income derived from that business). A prospective shareholder should consult its tax adviser with respect to the availability of a credit for such tax in the jurisdiction in which the shareholder is resident.

 

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Backup Withholding

In certain circumstances, shareholders may be subject to backup withholding on certain payments paid to them if they do not establish that they are exempt from the backup withholding rules (such as corporations) or if they do not furnish their correct taxpayer identification number (in the case of individuals, their social security number) and certain certifications, or who are otherwise subject to backup withholding. Backup withholding is not an additional tax. Any amounts withheld from payments made to an investor may be refunded or credited against an investor’s United States federal income tax liability, if any, provided that the required information is furnished to the IRS.

Shareholders should be aware that certain aspects of the United States federal, state and local income tax treatment regarding the purchase, ownership and disposition of Shares are not clear under existing law. Thus, shareholders are urged to consult their own tax advisers to determine the tax consequences of ownership of the Shares in their particular circumstances, including the application of United States federal, state, local and foreign tax laws.

 

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PURCHASES BY EMPLOYEE BENEFIT PLANS

Although there can be no assurance that an investment in a Fund, or any other managed futures product, will achieve the investment objectives of an employee benefit plan in making such investment, futures investments have certain features which may be of interest to such a plan. For example, the futures markets are one of the few investment fields in which employee benefit plans can participate in leveraged strategies without being required to pay tax on “unrelated business taxable income.” See “Material U.S. Federal Income Tax Considerations—’Tax-Exempt Organizations.’” In addition, because they are not tax-paying entities, employee benefit plans are not subject to paying annual tax on profits (if any) of a Fund.

General

The following section sets forth certain consequences under the Employee Retirement Income Security Act of 1974, as amended, or ERISA, and the Code, which a fiduciary of an “employee benefit plan” as defined in and subject to ERISA or of a “plan” as defined in and subject to Section 4975 of the Code who has investment discretion should consider before deciding to invest the plan’s assets in a Fund (such “employee benefit plans” and “plans” being referred to herein as “Plans,” and such fiduciaries with investment discretion being referred to herein as “Plan Fiduciaries”). The following summary is not intended to be complete, but only to address certain questions under ERISA and the Code which are likely to be raised by the Plan Fiduciary’s own counsel.

In general, the terms “employee benefit plan” as defined in and subject to Title I of ERISA and “plan” as defined in Section 4975 of the Code together refer to any plan or account of various types which provide retirement benefits or welfare benefits to an individual or to an employer’s employees and their beneficiaries. Such plans and accounts include, but are not limited to, corporate pension and profit–sharing plans, “simplified employee pension plans,” KEOGH plans for self-employed individuals (including partners), individual retirement accounts described in Section 408 of the Code and medical plans.

Each Plan Fiduciary must give appropriate consideration to the facts and circumstances that are relevant to an investment in a Fund, including the role that such an investment would play in the Plan’s overall investment portfolio. Each Plan Fiduciary, before deciding to invest in a Fund, must be satisfied that such investment is prudent for the Plan, that the investments of the Plan, including the investment in a Fund, are diversified so as to minimize the risk of large losses and that an investment in a Fund complies with the Plan.

EACH PLAN FIDUCIARY CONSIDERING ACQUIRING SHARES MUST CONSULT WITH ITS OWN LEGAL AND TAX ADVISERS BEFORE DOING SO. AN INVESTMENT IN A FUND IS SPECULATIVE AND INVOLVES A HIGH DEGREE OF RISK. NONE OF THE FUNDS IS INTENDED AS A COMPLETE INVESTMENT PROGRAM.

“Plan Assets”

A regulation issued under ERISA by the U.S. Department of Labor, or the “ERISA Regulation”, contains rules for determining when an investment by a Plan in an equity interest of an entity will result in the underlying assets of such entity being considered to constitute assets of the Plan for purposes of ERISA and Section 4975 of the Code ( i.e. , “plan assets”). Those rules provide that assets of an entity will not be considered assets of a Plan which purchases an equity interest in the entity if one or more exceptions apply, including (i) an exception applicable if the equity interest purchased is a “publicly-offered security,” or the Publicly-Offered Security Exception, and (ii) an exception applicable if equity interests purchased by a plan are not significant, or the Insignificant Participation Exception.

The Publicly-Offered Security Exception applies if the equity interest is a security that is (1) “freely transferable,” (2) part of a class of securities that is “widely held” and (3) either (a) part of a class of securities registered under Section 12(b) or 12(g) of the 1934 Act, or (b) sold to the Plan as part of a public offering pursuant to an effective registration statement under the 1933 Act and the class of which such security is a part is registered under the 1934 Act within 120 days (or such later time as may be allowed by the SEC) after the end of the fiscal year of the issuer in which the offering of such security occurred.

 

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The Trust expects that the Publicly Offered Security Exception should apply with respect to the Shares of each Fund due to their listing on the AMEX.

Ineligible Purchasers

Shares may not be purchased with the assets of a Plan if the Sponsor, the FCM or any of their respective affiliates, any of their respective employees or any employees of their respective affiliates: (a) has investment discretion with respect to the investment of such Plan assets; (b) has authority or responsibility to give or regularly gives investment advice with respect to such Plan assets, for a fee, and pursuant to an agreement or understanding that such advice will serve as a primary basis for investment decisions with respect to such Plan assets and that such advice will be based on the particular investment needs of the Plan; or (c) is an employer maintaining or contributing to such Plan. A party that is described in clause (a) or (b) of the preceding sentence is a fiduciary under ERISA and the Code with respect to the Plan, and any such purchase might result in a “prohibited transaction” under ERISA and the Code.

Except as otherwise set forth, the foregoing statements regarding the consequences under ERISA and the Code of an investment in Shares of the Fund are based on the provisions of the Code and ERISA as currently in effect, and the existing administrative and judicial interpretations thereunder. No assurance can be given that administrative, judicial or legislative changes will not occur that will not make the foregoing statements incorrect or incomplete.

THE PERSON WITH INVESTMENT DISCRETION SHOULD CONSULT WITH HIS OR HER ATTORNEY AND FINANCIAL ADVISERS AS TO THE PROPRIETY OF AN INVESTMENT IN SHARES IN LIGHT OF THE CIRCUMSTANCES OF THE PARTICULAR PLAN AND CURRENT TAX LAW.

 

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PLAN OF DISTRIBUTION

Buying and Selling Shares

Most investors will buy and sell shares in secondary market transactions through brokers. Shares will trade on the AMEX under the ticker symbols listed in this Prospectus. Shares will be bought and sold throughout the trading day like other publicly traded securities. When buying or selling Shares through a broker, most investors will incur customary brokerage commissions and charges.

Authorized Participants

The offering of Shares is a best efforts offering. The Funds will continuously offer Shares in Creation Units (50,000 Shares) to Authorized Participants. It is expected that on the effective date, the initial Authorized Participant for the Ultra DJ-AIG Commodity ProShares, the UltraShort DJ-AIG Commodity ProShares, the Ultra DJ-AIG Agriculture ProShares, the UltraShort DJ-AIG Agriculture ProShares, the Ultra DJ-AIG Crude Oil ProShares, the UltraShort DJ-AIG Crude Oil ProShares, the Ultra Gold ProShares, the UltraShort Gold ProShares, the Ultra Silver ProShares and the UltraShort Silver ProShares will, subject to conditions, purchase two or more Creation Units of 50,000 Shares of each Fund at a price per Share of $70.00. It is expected that on the effective date, the initial Authorized Participant for the Ultra Euro ProShares, the UltraShort Euro ProShares, the Ultra Yen ProShares and the UltraShort Yen ProShares will, subject to conditions, purchase two or more Creation Units of 50,000 Shares of each Fund at a price per Share of $50.00. On the initial day of sales to the initial Authorized Participants, each Fund’s initial per Share NAV will be established as of the times indicated under section “Creation and Redemption of Shares—Creation Procedures—Determination of Required Payment.”

The initial Authorized Participants will offer to the public Shares of a Fund from the Creation Units they acquire on the effective date. Thereafter, Authorized Participants, including the initial Authorized Participants, may offer to the public, from time-to-time, Shares of a Fund from any Creation Units they create. Shares of a Fund offered to the public by Authorized Participants will be offered at a per Share offering price that will vary depending on, among other factors, the trading price of the Shares of each Fund on the AMEX, the NAV per Share and the supply of and demand for the Shares at the time of the offer. Shares initially comprising the same Creation Unit but offered by Authorized Participants to the public at different times may have different offering prices. The excess, if any, of the price at which an Authorized Participant sells a Share over the price paid by such Authorized Participant in connection with the creation of such Share in a Creation Unit may be deemed to be underwriting compensation. Authorized Participants will not receive from any Fund, the Sponsor or any of their affiliates, any fee or other compensation in connection with their sale of Shares to the public, although investors are expected to be charged a customary commission by their brokers in connection with purchases of Shares that will vary from investor to investor. Investors are encouraged to review the terms of their brokerage accounts for applicable charges.

The initial Authorized Participant for the Ultra DJ-AIG Commodity ProShares, the UltraShort DJ-AIG Commodity ProShares, the Ultra DJ-AIG Crude Oil ProShares and the UltraShort DJ-AIG Crude Oil ProShares will be Goldman Sachs Execution & Clearing L.P.

The initial Authorized Participant for the Ultra DJ-AIG Agriculture ProShares, the UltraShort DJ-AIG Agriculture ProShares, the Ultra Gold ProShares, the UltraShort Gold ProShares, the Ultra Silver ProShares, the UltraShort Silver ProShares, the Ultra Euro ProShares, the UltraShort Euro ProShares, the Ultra Yen ProShares and the UltraShort Yen ProShares will be Merrill Lynch Professional Clearing Corp.

As of                     , 2008 both Goldman Sachs Execution & Clearing L.P. and Merrill Lynch Professional Clearing Corp. have executed an Authorized Participant Agreement relating to each Fund for which they are serving as an Authorized Participant.

Likelihood of Becoming a Statutory Underwriter

Each Fund will issue Shares in Creation Units to Authorized Participants from time-to-time in exchange for cash. Because new Shares can be created and issued on an ongoing basis at any point during the life of each Fund, a

 

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“distribution,” as such term is used in the 1933 Act, will be occurring. The initial Authorized Participants or an Authorized Participant, other broker-dealer firm or its client will be deemed a statutory underwriter, and thus will be subject to the prospectus-delivery and liability provisions of the 1933 Act, if it purchases a Creation Unit from each Fund, breaks the Creation Unit down into the constituent Shares and sells the Shares to its customers; or if it chooses to couple the creation of a supply of new Shares with an active selling effort involving solicitation of secondary market demand for the Shares. A determination of whether one is an underwriter must take into account all the facts and circumstances pertaining to the activities of the broker-dealer or its client in the particular case, and the examples mentioned above should not be considered a complete description of all the activities that would lead to categorization as an underwriter. Authorized Participants, other broker-dealers and other persons are cautioned that some of their activities will result in their being deemed participants in a distribution in a manner which would render them statutory underwriters and subject them to the prospectus delivery and liability provisions of the 1933 Act.

Dealers who are neither Authorized Participants nor “underwriters” but are participating in a distribution (as contrasted to ordinary secondary trading transactions), and thus dealing with Shares that are part of an “unsold allotment” within the meaning of section 4(3)(C) of the 1933 Act, would be unable to take advantage of the prospectus delivery exemption provided by section 4(3) of the 1933 Act.

General

Retail investors may purchase and sell Shares through traditional brokerage accounts. Investors who purchase Shares through a commission/fee-based brokerage account may pay commissions/fees charged by the brokerage account. Investors are encouraged to review the terms of their brokerage accounts for applicable charges.

The offering of Creation Units is being made in compliance with Conduct Rule 2810 of FINRA. Accordingly, the Authorized Participants will not make any sales to any account over which they have discretionary authority without the prior written approval of a purchaser of Shares. The maximum amount of items of value to be paid to FINRA Members in connection with the offering of the Shares by a Fund will not exceed 10% plus 0.5% for bona fide due diligence.

Pursuant to the Distribution Agreement, SEI will be paid out of the Management Fee of each Fund.

The payments to SEI will not, in the aggregate (of the Trust, and not on a Fund-by-Fund basis), exceed % of the aggregate dollar amount of the offering (or in an amount equal to $ of the $ registered on the initial Registration Statement on Form S-1 in respect of the Trust). The Trust will advise SEI if the payments described hereunder must be limited, when combined with selling commissions charged by other FINRA members, in order to comply with the 10% limitation on total underwriters’ compensation pursuant to FINRA Rule 2810.

 

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LEGAL MATTERS

Clifford Chance US LLP has advised the Sponsor in connection with the Shares being offered hereby. Clifford Chance US LLP also advises the Sponsor with respect to its responsibilities as sponsor of, and with respect to matters relating to, the Trust and each Fund. Richards, Layton & Finger, P.A. has represented the Trust in connection with the legality of the Shares being offered hereby. Clifford Chance US LLP has prepared the sections “Material U.S. Federal Income Tax Considerations” and “Purchases By Employee Benefit Plans” with respect to ERISA.

No counsel has been engaged to act on behalf of the shareholders with respect to matters relating to the Trust or any Fund. Certain opinions of counsel have been filed with the SEC as exhibits to the Registration Statement of which this Prospectus is a part.

EXPERTS

The financial statements of ProShares Trust II [at [              ] and for the period from [                      ]], appearing in the registration statement of which this prospectus is a part, have been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as set forth in its report thereon appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firm as expert in accounting and auditing.

The audited balance sheet of ProShare Capital Management LLC at December 31, 2007, appearing in the registration statement of which this prospectus is a part, have been audited by Arthur F. Bell, Jr. & Associates, L.L.C., an independent public accounting firm, as set forth in its report thereon appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firm as expert in accounting and auditing.

WHERE INVESTORS CAN FIND MORE INFORMATION

The Trust has filed a Registration Statement on Form S-1 with the SEC under the 1933 Act. This Prospectus constitutes part of the Registration Statement filed by the Trust for itself and on behalf of each Fund. This Prospectus does not contain all of the information set forth in such Registration Statement, certain portions of which have been omitted pursuant to the rules and regulations of the SEC, including, without limitation, certain exhibits thereto (for example, the forms of the Authorized Participant Agreement and the Customer Agreement). The descriptions contained herein of agreements included as exhibits to the Registration Statement are necessarily summaries; the exhibits themselves may be inspected without charge at the Public Reference Room maintained by the SEC at 100 F Street, NE, Washington, DC 20549, and copies of all or part thereof may be obtained from the SEC upon payment of the prescribed fees. Investors may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains a website that contains reports, proxy and information statements and other information regarding registrants that file electronically with the SEC. The address of such site is www.sec.gov .

RECENT FINANCIAL INFORMATION AND ANNUAL REPORTS

The Sponsor will furnish shareholders of record with an annual report of each Fund in which such shareholders are invested within 90 calendar days after the end of such Fund’s fiscal year as required by the rules and regulations of the SEC, as well as with those reports required by the CFTC and the NFA, including, but not limited to, an annual audited financial statement examined and certified by independent registered public accountants and any other reports required by any other governmental authority that has jurisdiction over the activities of the Funds. Shareholders of record also will be provided with appropriate information to permit them to file United States federal and state income tax returns (on a timely basis) with respect to Shares held. Monthly account statements conforming to CFTC and NFA requirements, as well as annual and quarterly reports and other filings made with the SEC, will be posted on the Sponsor’s website at www.proshares.com . Additional reports may be posted on the Sponsor’s website in the discretion of the Sponsor or as required by regulatory authorities.

 

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PRIVACY POLICY

The Trust’s commitment to investors

The Sponsor and the Trust are committed to respecting the privacy of personal information investors entrust to the Trust in the course of doing business.

The information the Trust collects about investors

The Sponsor, on behalf of the Trust, collects non-public personal information from various sources. For instance, forms may include name, address, and social security number. Each of the Funds receives information from transactions in investors’ accounts, including account balances, and from correspondence between investors and the Funds or third parties, such as the Funds’ service providers. The Sponsor, on behalf of the Funds, uses such information provided by investors or their representative to process transactions, to respond to inquiries from investors, to deliver reports, products, and services, and to fulfill legal and regulatory requirements.

How the Trust handles investors’ personal information

The Sponsor does not disclose any non-public personal information about investors to anyone unless permitted by law or approved by the affected investor. The Sponsor may share information about investors with certain third parties who are not affiliated with the Trust to process or service a transaction that investors have requested or as permitted by law. For example, sharing information with non-affiliated third parties that maintain or service investors’ accounts for the Funds is essential.

The Sponsor may also share information with companies that perform administrative or marketing services for the Funds including research firms. When the Funds enter into such a relationship, such third parties’ use of customer’s information is restricted and they are prohibited from sharing it or using it for any purposes other than those for which they were hired. The Sponsor also requires service providers to maintain physical, electronic and procedural safeguards that comply with federal standards to guard investors’ non-public personal information.

How the Trust safeguards investors’ personal information

The Sponsor maintains physical, electronic, and procedural safeguards to protect investors’ personal information. Within the Funds, access to personal information is restricted to those employees who require access to that information in order to provide products or services to customers such as processing transactions and handling inquiries. Use of customer information is restricted and customer information is required to be held in strict confidence.

The Sponsor will adhere to the policies and practices described in this notice for both current and former customers of the Funds.

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INDEX TO FINANCIAL INFORMATION

 

     Pages

ProShares Trust II

  
Audited Financial Statements as of August 6, 2008   

Report of Independent Registered Public Accounting Firm

   F-2

Statements of Financial Condition and Statements of Operations

   F-3

Notes to Financial Statements

   F-17

ProShare Capital Management LLC

  
Audited Statement of Financial Condition as of December 31, 2007   

Independent Auditor’s Report

   F-20

Statement of Financial Condition

   F-21

Notes to Statement of Financial Condition

   F-22

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Shareholders of ProShares Trust II:

In our opinion, the accompanying statements of financial condition, and the related statements of operations present fairly, in all material respects, the financial position of

Ultra DJ-AIG Commodity ProShares

UltraShort DJ-AIG Commodity ProShares

Ultra DJ-AIG Agriculture ProShares

UltraShort DJ-AIG Agriculture ProShares

Ultra DJ-AIG Crude Oil ProShares

UltraShort DJ-AIG Crude Oil ProShares

Ultra Gold ProShares

UltraShort Gold ProShares

Ultra Silver ProShares

UltraShort Silver ProShares

Ultra Euro ProShares

UltraShort Euro ProShares

Ultra Yen ProShares

UltraShort Yen ProShares

fourteen separate series comprising ProShares Trust II (the “Funds”) at August 6, 2008, the results of its operations for the period then ended, in conformity with accounting principles generally accepted in the United States of America. These financial statements (hereafter referred to as “financial statements”) are the responsibility of the Funds’ management; our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these financial statements in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

PricewaterhouseCoopers LLP

Columbus, Ohio

August 13, 2008

 

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PROSHARES TRUST II

ULTRA DJ-AIG COMMODITY PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     82,059  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     87,588  
        

LIABILITIES:

  

Payable for Offering Costs

     82,059  

Payable for Organization Costs

     5,179  
        

TOTAL LIABILITIES

     87,238  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (5 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRASHORT DJ-AIG COMMODITY PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     148,465  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     153,994  
        

LIABILITIES:

  

Payable for Offering Costs

     148,465  

Payable for Organization

     5,179  
        

TOTAL LIABILITIES

     153,644  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (5 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRA DJ-AIG AGRICULTURE PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     104,194  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     109,723  
        

LIABILITIES:

  

Payable for Offering Costs

     104,194  

Payable for Organization Costs

     5,179  
        

TOTAL LIABILITIES

     109,373  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (5 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRASHORT DJ-AIG AGRICULTURE PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     104,194  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     109,723  
        

LIABILITIES:

  

Payable for Offering Costs

     104,194  

Payable for Organization Costs

     5,179  
        

TOTAL LIABILITIES

     109,373  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (5 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRA DJ-AIG CRUDE OIL PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     104,194  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     109,723  
        

LIABILITIES:

  

Payable for Offering Costs

     104,194  

Payable for Organization Costs

     5,179  
        

TOTAL LIABILITIES

     109,373  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (5 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRASHORT DJ-AIG CRUDE OIL PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     148,465  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     153,994  
        

LIABILITIES:

  

Payable for Offering Costs

     148,465  

Payable for Organization

     5,179  
        

TOTAL LIABILITIES

     153,644  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (5 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRA GOLD PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     148,465  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     153,994  
        

LIABILITIES:

  

Payable for Offering Costs

     148,465  

Payable for Organization

     5,179  
        

TOTAL LIABILITIES

     153,644  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (5 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRASHORT GOLD PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     148,465  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     153,994  
        

LIABILITIES:

  

Payable for Offering Costs

     148,465  

Payable for Organization

     5,179  
        

TOTAL LIABILITIES

     153,644  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (5 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRA SILVER PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     82,059  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     87,588  
        

LIABILITIES:

  

Payable for Offering Costs

     82,059  

Payable for Organization Costs

     5,179  
        

TOTAL LIABILITIES

     87,238  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (5 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRASHORT SILVER PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     104,195  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     109,724  
        

LIABILITIES:

  

Payable for Offering Costs

     104,195  

Payable for Organization Costs

     5,179  
        

TOTAL LIABILITIES

     109,374  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (5 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRA EURO PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     82,058  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     87,587  
        

LIABILITIES:

  

Payable for Offering Costs

     82,058  

Payable for Organization Costs

     5,179  
        

TOTAL LIABILITIES

     87,237  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (7 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRASHORT EURO PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     82,058  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     87,587  
        

LIABILITIES:

  

Payable for Offering Costs

     82,058  

Payable for Organization Costs

     5,179  
        

TOTAL LIABILITIES

     87,237  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (7 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRA YEN PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     82,059  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     87,588  
        

LIABILITIES:

  

Payable for Offering Costs

     82,059  

Payable for Organization Costs

     5,179  
        

TOTAL LIABILITIES

     87,238  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (7 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

 

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PROSHARES TRUST II

ULTRASHORT YEN PROSHARES

STATEMENT OF FINANCIAL CONDITION

AUGUST 6, 2008

 

ASSETS:

  

Cash

   $ 350  

Offering Costs

     82,059  

Receivable from Sponsor

     5,179  
        

TOTAL ASSETS

     87,588  
        

LIABILITIES:

  

Payable for Offering Costs

     82,059  

Payable for Organization Costs

     5,179  
        

TOTAL LIABILITIES

     87,238  
        

TOTAL NET ASSETS

     350  
        

SHAREHOLDER’S EQUITY:

  

Paid in Capital on shares of beneficial interest

     350  
        

TOTAL SHAREHOLDER’S EQUITY, (7 shares outstanding)

   $ 350  
        

STATEMENT OF OPERATIONS

AUGUST 6, 2008

 

 

INVESTMENT INCOME

   $ —    
        

EXPENSES:

  

Organization Costs

     5,179  

Limitations by Sponsor

     (5,179 )
        

TOTAL EXPENSES

     —    
        

NET INVESTMENT INCOME

   $ —    
        

See accompanying notes to statement of financial condition.

 

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PROSHARES TRUST II

NOTES TO STATEMENT OF FINANCIAL CONDITION

 

1. Organization

ProShares Trust II was organized as a Delaware statutory trust, (the “Trust”) on October 9, 2007 and is authorized to issue an unlimited number of shares of beneficial interest. The Trust is comprised of fourteen separate series; Ultra DJ-AIG Commodity ProShares, UltraShort DJ-AIG Commodity ProShares, Ultra DJ-AIG Agriculture ProShares, UltraShort DJ-AIG Agriculture ProShares, Ultra DJ-AIG Crude Oil ProShares, UltraShort DJ-AIG Crude Oil ProShares, Ultra Gold ProShares, UltraShort Gold ProShares, Ultra Silver ProShares, UltraShort Silver ProShares, Ultra Euro ProShares, UltraShort Euro ProShares, Ultra Yen ProShares and, UltraShort Yen ProShares. Each series of the Trust (each, a “Fund” and collectively, the “Funds”) will issue common units of beneficial interest (“Shares”), which represent units of fractional undivided beneficial interest in and ownership of only that Fund. Each Fund’s Shares are being offered separately. The Trust has had no operations to date other than matters relating to its organization and the registration of each series under the Securities Act of 1933, and the sale and issuance to ProShare Capital Management LLC (the “Sponsor”), of 5 shares each for Ultra DJ-AIG Commodity ProShares, UltraShort DJ-AIG Commodity ProShares, Ultra DJ-AIG Agriculture ProShares, UltraShort DJ-AIG Agriculture ProShares, Ultra DJ-AIG Crude Oil ProShares, UltraShort DJ-AIG Crude Oil ProShares, Ultra Gold ProShares, UltraShort Gold ProShares, Ultra Silver ProShares and UltraShort Silver ProShares, and 7 shares each for Ultra Euro ProShares, UltraShort Euro ProShares, Ultra Yen ProShares and UltraShort Yen ProShares, of beneficial interest at an aggregate purchase price of $350 in each of the Funds. The sale and issuance of shares took place August 6, 2008 and the Statement of Operations are presented for that one day period. The investment objective of each Fund is to seek daily investment results, before fees and expenses, which correspond to twice (200%) the daily performance, whether positive or negative, of its corresponding benchmark.

 

2. Summary of Significant Account Policies

Use of Estimates & Indemnifications:

The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts and disclosures in these financial statements. Actual results could differ from those estimates.

In the normal course of business the Trust enters into contracts that contain a variety of representations which provide general indemnifications. The Trust’s maximum exposure under these arrangements cannot be known; however, the Trust expects any risk of loss to be remote.

Federal Income Tax:

Each Fund is registered as a Delaware statutory trust and will be treated as a partnership for U.S. federal income tax purposes. Accordingly, no Fund expects to incur United States federal income tax liability; rather, each beneficial owner of a Fund’s Shares will be required to take into account its allocable share of its Fund’s income, gain, loss, deductions and other items for its Fund’s taxable year ending with or within the beneficial owner’s taxable year.

 

3. Agreements

Management Fee:

Each Fund will pay the Sponsor a Management Fee, monthly in arrears, in an amount equal to 0.95% per annum of the average daily net assets of each Fund to the extent that such amounts cumulatively exceed the organizational and offering costs incurred by the Fund. The Management Fee will be paid in consideration of the Sponsor’s services as commodity pool operator, commodity trading advisor, and for managing the

 

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business and affairs of the Fund. From the Management Fee, the Sponsor will pay the fees and expenses of Administrator, Custodian, Distributor, Transfer Agent and DOW-AIG (the licensor for the Commodity Index Funds), the routine operational, administrative and other ordinary expenses of the Trust, and the normal and expected expenses incurred in connection with the continuous offering of Shares of each fund after the commencement of its trading operations, including, but not limited to, expenses such as ongoing registration fees not exceeding 0.021% annually, filing fees and taxes, costs associated with printing, mailing and distributing sales materials, and applicable accounting and legal fees. Each Fund will incur its nonrecurring and unusual fees and expenses.

Brokerage Commissions and Fees:

Each Fund will pay to Prudential Bache Commodities, LLC, which will serve as the Fund’s Futures Commission Merchant (the “Commodity Broker”), all brokerage commissions, including applicable exchange fees, NFA fees, give-up fees, pit brokerage fees and other transaction related fees and expenses charged in connection with trading activities.

The Administrator:

The Sponsor, on behalf of the Trust, has appointed Brown Brothers Harriman & Co. (“BBH&Co.”) as the administrator of the Trust, and the Sponsor, the Trust and BBH&Co. have entered into an Administrative Agency Agreement in connection therewith. Pursuant to the terms of the Administrative Agency Agreement and under the supervision and direction of the Sponsor, BBH&Co. will prepare and file certain regulatory filings on behalf of the Trust. BBH&Co. may also perform other services for the Trust pursuant to the Administrative Agency Agreement as mutually agreed upon by the Sponsor, the Fund and BBH&Co. from time to time. BBH&Co. will also serve as the transfer agent of the Fund, and the Sponsor, the Fund and BBH&Co. have entered into a Transfer Agency and Service Agreement in connection therewith.

The Custodian:

BBH&Co. will serve as custodian of the Funds, and the Sponsor, the Funds and BBH&Co. have entered into a Global Custody Agreement in connection therewith. Pursuant to the terms of the Global Custody Agreement, BBH&Co. will be responsible for the holding and safekeeping of assets delivered to it by the Funds, and performing various administrative duties in accordance with instructions delivered to BBH&Co. by the Funds.

The Distributor:

SEI Investments Distribution Co. or SEI, will serve as Distributor of the Shares and will assist the Sponsor and the Administrator with certain functions and duties relating to distribution and marketing, including reviewing and approving marketing materials. SEI will retain all marketing materials separately for each Fund, at c/o SEI, One Freedom Valley Drive, Oaks, PA 19456. The Sponsor, on behalf of each Fund, will enter into a Distribution Services Agreement with SEI.

Routine Operational, Administrative and Other Ordinary Expenses:

The Sponsor will pay all of the routine operational, administrative and other ordinary expenses of each Fund generally, as determined by the Sponsor including, but not limited to, accounting and auditing fees and expenses, tax preparation expenses, legal fees not in excess of $100,000 per annum, individual K-1 preparation and mailing fees not exceeding 0.05% annually, and report preparation and mailing expenses.

Non-Recurring Fees and Expenses:

Each Fund will pay all non-recurring and unusual fees and expenses, if any, as determined by the Sponsor. Non-recurring and unusual fees and expenses are fees and expenses such as legal claims and liabilities, litigation costs or indemnification or other material expenses which are not currently anticipated obligations of the Funds. Such non-recurring and unusual fees and expenses, by their nature, are unpredictable in terms of timing and amount.

 

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Licensing Fee:

The Sponsor will pay Dow Jones – AIG a licensing fee for each Dow Jones – AIG sub-index used as a benchmark for a Commodity Index Fund.

 

4. Organization and Offering Costs

The total amount of the organizational and offering costs incurred by the Funds to date is $72,506 and $1,502,989, respectively. Organization costs are charged to the Funds as incurred and offering costs will be amortized by the Funds over a twelve month period on a straight-line basis. The Sponsor will not charge its fee in the first year of operation of each Fund in an amount equal to the organization and offering fees. The Sponsor has agreed to reimburse each Fund for organizational and offering costs incurred to the extent such costs exceed 0.95% of average net assets of each Fund for the shorter of the twelve month period following the initial sale of shares or the period from the initial sale of shares to the date the Fund ceases investment operations.

 

5. Capital

The Funds will create and redeem Shares from time to time, but only in one or more Creation Units. A Creation Unit is a block of 50,000 Shares of a Fund. Creation Units may be created or redeemed only by Authorized Participants.

Except when aggregated in Creation Units, the Shares are not redeemable securities. Retail investors, therefore, generally will not be able to purchase or redeem shares directly from or with a Fund. Rather, most retail investors will purchase or sell shares in the secondary market with the assistance of a broker. Thus, some of the information contained in these Notes to Financial Statements—such as references to the Transaction Fees imposed on purchases and redemptions—is not relevant to retail investors.

Authorized Participants will pay a fixed transaction fee of $500 in connection with each order to create or redeem a Creation Unit of Shares in order to compensate BBH for services in processing the creation and redemption of Creation Units. Authorized Participants also will pay a variable transaction fee of up to 0.10% of the value of the Creation Unit that is purchased or redeemed. Authorized Participants may sell the Shares included in the Creation Units they purchase from the Funds to other investors.

 

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INDEPENDENT AUDITOR’S REPORT

To the Members

ProShare Capital Management LLC

We have audited the accompanying statement of financial condition of ProShare Capital Management LLC as of December 31, 2007. This financial statement is the responsibility of the Company’s management. Our responsibility is to express an opinion on this financial statement based on our audit.

We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the statement of financial condition is free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the statement of financial condition. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall statement of financial condition presentation. We believe that our audit of the statement of financial condition provides a reasonable basis for our opinion.

In our opinion, the statement of financial condition referred to above presents fairly, in all material respects, the financial position of ProShare Capital Management LLC as of December 31, 2007, in conformity with accounting principles generally accepted in the United States of America.

 

/s/ ARTHUR F. BELL, JR. & ASSOCIATES, L.L.C.
Hunt Valley, Maryland
August 12, 2008

 

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PROSHARE CAPITAL MANAGEMENT LLC

STATEMENT OF FINANCIAL CONDITION

December 31, 2007

 

ASSETS

  

Cash

   $ 1,850
      

Total Assets

   $ 1,850
      

LIABILITIES

  

Accrued Expenses

   $ 700
      

Total Liabilities

   $ 700
      

MEMBER’S EQUITY

  

Member’s Equity

     1,150
      

Total Member’s Equity

     1,150
      

Total Liabilities and Member’s Equity

   $ 1,850
      

See accompanying notes.

 

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PROSHARE CAPITAL MANAGEMENT LLC

NOTES TO STATEMENT OF FINANCIAL CONDITION

 

Note 1.    ORGANIZATION AND SUMMARY OF BUSINESS
  

ProShare Capital Management LLC (the “Company”) is a Maryland limited liability company formed on May 11, 1999. The Company shall continue until December 31, 2049, unless sooner terminated. At December 31, 2007, the Company had only one Member. The Company is registered as a commodity pool operator and commodity trading advisor with the Commodity Futures Trading Commission, and is a member of the National Futures Association.

 

The Company serves as the sponsor of ProShares Trust II (the “Trust”), a Delaware statutory trust currently organized in fourteen separate series (the “Funds”). Pursuant to the Trust Agreement of the Trust, the Company has been delegated the exclusive management and control of all aspects of the business of the Funds of the Trust.

 

As of the date of the statement of financial condition, none of the Funds of the Trust were operational.

Note 2.    SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
  

A.     

   Method of Reporting
      The Company’s statement of financial condition is presented in accordance with accounting principles generally accepted in the United States of America.
   B.    Use of Estimates
      The preparation of the statement of financial condition in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the statement of financial condition. Actual results could differ from those estimates.
   C.    Income Taxes
      The Company prepares calendar year United States and applicable state information tax returns.
      Effective January 1, 2007, the Company adopted Financial Accounting Standards Board (FASB) Interpretation No. 48 (FIN 48) entitled “Accounting for Uncertainty in Income Taxes – an interpretation of FASB Statement No. 109.” FIN 48 prescribes the minimum recognition threshold a tax position must meet in connection with accounting for uncertainties in income tax positions taken or expected to be taken by an entity before being measured and recognized in the statement of financial condition. The adoption of FIN 48 had no impact on the Company’s statement of financial condition at December 31, 2007.
Note 3.    CASH   
   The Company maintains cash deposits in a bank which may exceed the amount of deposit insurance available. Management periodically assesses the financial condition of the bank and believes that any potential credit loss is minimal.

 

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PROSHARE CAPITAL MANAGEMENT LLC

NOTES TO STATEMENT OF FINANCIAL CONDITION (CONTINUED)

 

Note 4.    INDEMNIFICATIONS   
   In the normal course of business, the Company enters into contracts and agreements that contain a variety of representations and warranties and which provide general indemnifications. The Company’s maximum exposure under these arrangements is unknown, as this would involve future claims that may be made against the Company that have not yet occurred. The Company expects the risk of any future obligation under these indemnifications to be remote.
Note 5.    SUBSEQUENT EVENTS   
   In June 2008, the Company admitted additional Members. In July 2008, the Members contributed capital to the Company totaling $600,000.

 

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APPENDIX A — GLOSSARY

The Glossary below defines certain of the terms and meanings used throughout this Prospectus. Each term also is defined the first time it is used in this Prospectus.

 

1933 Act    Securities Act of 1933, as amended
1934 Act    Securities Act of 1934, as amended
1940 Act    Investment Company Act of 1940, as amended
Administrator    Brown Brothers Harriman & Co., as administrator for each of the Funds
AMEX    American Stock Exchange
Authorized Participant    Those who may purchase ( i.e. , create) or redeem Creation Units of Shares directly from a Fund
BBH    Brown Brothers Harriman & Co.
CEA    Commodity Exchange Act
CFTC    United States Commodity Futures Trading Commission
Creation Unit    A block of 50,000 Shares that is created for sale by the Trust to Authorized Participants and/or submitted to the Trust for redemption by an Authorized Participant.
Custodian    Brown Brothers Harriman & Co., as custodian for each of the Funds
DSTA    Delaware Statutory Trust Act
Distributor    SEI Investments Distribution Co.
DTC    Depository Trust Company
FCM    Futures Commission Merchant
Financial Instruments                        Commodity-based or currency-based instruments whose value is derived from the value of an underlying asset, rate or index. Each Fund will invest in Financial Instruments as a substitute for investing directly in a commodity or currency in order to gain exposure to the commodity index, commodity or currency. The Financial Instruments also are used to produce economically “leveraged” or “inverse” investment results. Financial Instruments include: futures contracts and options on futures contracts; swap agreements; forward contracts; and other commodity-based or currency-based options contracts.
FINRA    Financial Industry Regulatory Authority
Fund(s)    One or more of the series of the Trust.
IRS    United States Internal Revenue Service
NAV    Net Asset Value
NFA    National Futures Association
NYSE    New York Stock Exchange
PBC    Prudential Bache Commodities, LLC
PCM    ProShare Capital Management LLC
SEC    United States Securities & Exchange Commission
SEI    SEI Investments Distribution Co.
Sponsor    ProShare Capital Management LLC
Transfer Agent    Brown Brothers Harriman & Co., as transfer agent for each of the Funds
  
Trust    ProShares Trust II
Trustee    Wilmington Trust Company
U.S.    United States of America
Shares    Common units of beneficial interest that represent units of fractional undivided beneficial interest in and ownership of only a single Fund.

 

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Until                     , all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers’ obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.


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PART II

Information Not Required in Prospectus

 

Item 13. Other Expenses of Issuance and Distribution.

The following expenses reflect the estimated amounts required to prepare and file this Registration Statement and complete the offering of the Shares (other than selling commissions).

 

     Approximate
Amount

Securities and Exchange Commission Registration Fee

   $ 589,066.56

FINRA Filing Fee

     75,500.00

Printing Expenses

     120,000.00

Fees of Certified Public Accountants

     24,000.00

Fees of Counsel

     1,150,000.00

Miscellaneous Offering Costs

     —  
      

Total

   $ 1,958,566.56
      

 

Item 14. Indemnification of Directors and Officers.

An amended and restated Trust Agreement of the Trust to be filed as an exhibit to this Registration Statement and, as amended from time-to-time, will provide for the indemnification of the Sponsor. The Sponsor (including Covered Persons as will be provided under each amended and restated Trust Agreement) shall be indemnified by the Trust (or any Fund separately to the extent the matter in question relates to a single Fund or is otherwise disproportionate), against any losses, judgments, liabilities, expenses and amounts paid in settlement of any claims sustained by it in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, before any court or administrative or legislative body, in which such Sponsor may be or may have been involved as a party or otherwise or with which such Sponsor may be or may have been threatened, while in office or thereafter, by reason of any alleged act or omission as the Sponsor or by reason of his or her being or having been the Sponsor except with respect to any matter as to which such Sponsor shall have been finally adjudicated in any such action, suit or other proceeding not to have acted in good faith in the reasonable belief that such Sponsor’s action was in the best interests of the Trust and except that the Sponsor shall not be indemnified against any liability to the Trust or its Shareholders by reason of willful misconduct or gross negligence of such Sponsor.

 

Item 15. Recent Sales of Unregistered Securities.

None.

 

Item 16. Exhibits and Financial Statement Schedules.

The following documents (unless otherwise indicated) are filed herewith and made a part of this Registration Statement:

 

  (a) Exhibits. The following exhibits are filed herewith:

 

Exhibit

Number

  

Description of Document

  4.1    Trust Agreement of the ProShares Trust II(1)
  4.2    Form of Amended and Restated Trust Agreement of the ProShares Trust II
  4.3    Form of Authorized Participant Agreement
  5.1    Opinion of Richards, Layton & Finger, P.A. as to legality(2)
  8.1    Opinion of Clifford Chance US LLP as to income tax matters(2)
10.1    Form of Sponsor Agreement
10.2    Form of Administrative Agency Agreement

 

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Exhibit

Number

  

Description of Document

10.3    Form of Custodian Agreement
10.4    Form of Distribution Agreement
10.5    Form of Futures Commission Merchant Agreement(2)
23.1    Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.1)
23.2    Consent of Clifford Chance US LLP (included in Exhibit 8.1)
23.3    Consent of PricewaterhouseCoopers LLP
23.4    Consent of Arthur F. Bell, Jr. & Associates, L.L.C.

 

 

(1) Incorporated by reference to the Trust’s Registration Statement, filed on October 18, 2007.

 

(2) To be filed by amendment.

 

  (b) The following financial statements are included in the Prospectus:

ProShares Trust II

Audited Financial Statements as of August 6, 2008

Report of Independent Registered Public Accounting Firm

Statements of Financial Condition and Statements of Operations

Notes to Financial Statements

ProShare Capital Management LLC

Audited Statement of Financial Condition as of December 31, 2007

Independent Auditor’s Report

Statement of Financial Condition

Notes to Statement of Financial Condition

 

Item 17. Undertakings.

 

  (a) The undersigned registrant hereby undertakes:

 

  (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement;

 

  (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933, as amended;

 

  (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.

Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 per cent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

 

  (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

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Provided , however , that:

 

  (A) Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S–8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement; and

 

  (B) Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S–3 or Form F–3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

 

  (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the bona fide offering thereof.

 

  (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

  (4) That each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to this offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in this registration statement as of the date it is first used after effectiveness. Provided , however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into a registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

 

  (5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:

The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

  (i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

 

  (ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

 

  (iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or their securities provided by or on behalf of the undersigned registrant; and

 

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  (iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

 

  (b) Insofar as indemnification for liabilities under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the registrant pursuant to the provisions described in Item 14 above, or otherwise, the registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any such action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of their respective counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

 

  (i) The undersigned registrant hereby undertakes that:

 

  (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

 

  (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Sponsor of the Registrant has duly caused this Registration Statement on Form S-1 to be signed on their behalf by the undersigned, thereunto duly authorized, in the city of Bethesda, State of Maryland, on the 15 th day of August, 2008.

 

ProShares Trust II
By:  

/s/ Louis Mayberg

Name:   Louis Mayberg
Title:  

Principal Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-1 has been signed by the following persons in the capacities and on the date indicated.

 

     

/s/ Louis Mayberg

   Principal Executive Officer    August 15, 2008
Name: Louis Mayberg      

/s/ Edward Karpowicz

   Principal Financial Officer    August 15, 2008
Name: Edward Karpowicz   

 

II-5

Exhibit 4.2

FORM OF AMENDED AND RESTATED TRUST AGREEMENT

OF

PROSHARES TRUST II

WHEREAS, THIS AMENDED AND RESTATED TRUST AGREEMENT is made and entered into as of,                          , by PROSHARE CAPITAL MANAGEMENT, LLC, a Maryland limited liability company, and WILMINGTON TRUST COMPANY, a Delaware banking company, as trustee, for the purpose of continuing a Delaware statutory trust in accordance with the provisions hereinafter set forth;

WHEREAS, ProShare Capital Management, LLC and Wilmington Trust Company have heretofore created a Delaware statutory trust pursuant to the Delaware Trust Statute (as hereinafter defined) by entering into a trust agreement, dated as of October 9, 2007 (the “ Original Trust Agreement ”), and by executing and filing with the Secretary of State of the State of Delaware the Certificate of Trust; and

WHEREAS, the parties hereto desire to amend and restate the Original Trust Agreement in its entirety and to provide for the matters set forth herein;

NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each party, hereby amends and restates the Original Trust Agreement in its entirety and agrees as follows:

ARTICLE I

DEFINITIONS

Section 1. DEFINITIONS . Whenever used herein, unless otherwise defined or required by the context or specifically provided:

“Adjusted Capital Account ” means with respect to any Shareholder, such Shareholder’s Capital Account as of the end of the relevant fiscal year or other applicable period after giving effect to the following adjustments:

(a) Credit to such Capital Account any amounts which such Shareholder is obligated to restore pursuant to Treasury Regulation Section 1.704-1(b)(2)(ii)(c) or is deemed to be obligated to restore to the Trust pursuant to the second to last sentences of Treasury Regulation Sections 1.704-2(g)(1) and 1.704-2(i)(5).

(b) Debit to such Capital Account the items described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).

 

1


The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. The “Adjusted Capital Account” of a Shareholder in respect of a Share shall be the amount that such Adjusted Capital Account would be if such Share were the only interest in the Trust held by such Shareholder from and after the date on which such Share was first issued.

Administrator ” means any Person from time to time engaged to provide administrative services to the Trust pursuant to authority granted by the Sponsor or the Trust.

Affiliate ” An “Affiliate” of a “Person” means (i) any Person directly or indirectly owning, controlling or holding with power to vote 10% or more of the outstanding voting securities of such Person, (ii) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by such Person, (iii) any Person, directly or indirectly, controlling, controlled by or under common control of such Person, (iv) any employee, officer, director, member, manager or partner of such Person, or (v) if such Person is an employee, officer, director, member, manager or partner, any Person for which such Person acts in any such capacity.

Authorized Participant ” means a Person that is a DTC participant and has entered into an Authorized Participant Agreement which, at the relevant time, is in full force and effect.

Authorized Participant Agreement ” means an agreement among the Trust with respect to a Fund, the Sponsor and an Authorized Participant, which may be amended or supplemented from time to time in accordance with its terms.

Beneficial Owners ” means owners of beneficial interests in Shares.

Business Day ” means any day other than a day when any of the American Stock Exchange the New York Stock Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade, the Intercontinental Exchange/New York Board of Trade, the London Metal Exchange or the New York Mercantile Exchange (including its COMEX division) is closed for regular trading.

Capital Account ” means the capital account maintained for a Shareholder. The “Capital Account” of a Shareholder in respect of a Share shall be the amount that such Capital Account would be if such Share were the only interest in the Trust held by such Shareholder from and after the date on which such Share was first issued.

Capital Contributions ” means the amounts of cash or other consideration contributed and agreed to be contributed to the Trust by any Person.

CEA ” means the Commodity Exchange Act, as amended.

Certificate of Trust ” means the Certificate of Trust of the Trust in the form filed with the Secretary of State of the State of Delaware pursuant to Section 3810 of the Delaware Trust Statute as amended or restated from time to time.

 

2


Code ” means the United States Internal Revenue Code of 1986, as amended.

Commodity Pool Operator ” means any Person engaged by the Sponsor or the Trust who, in connection therewith, solicits, accepts, or receives monies or in-kind contributions for the purpose of trading in any commodity for future delivery or commodity option on or subject to the rules of any contract market for the benefit of the Trust.

Commodity Trading Advisor ” means any Person from time to time who engages in commodity trading and related activities for the benefit of the Trust pursuant to authority granted by the Sponsor or the Trust.

Common Shares ” means any Shares that are not Preferred Shares.

Corporate Trust Office ” means the principal office at which at any particular time the corporate trust business of the Trustee is administered, which office at the date hereof is located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration.

Covered Person ” means the Trustee, the person acting as Trustee ( in its individual capacity), the Sponsor and their respective Affiliates.

Creation Unit ” means the minimum number of Shares of a Fund that may be created at any one time, which shall be 50,000 or such greater or lesser number as the Sponsor may determine from time to time for each Fund.

Creation Unit Capital Contribution ” of a Fund means a Capital Contribution made by an Authorized Participant when purchasing a Creation Unit.

Delaware Trust Statute ” means the Delaware Statutory Trust Act, Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. § 3801 et seq ., as the same may be amended from time to time.

Depreciation ” means, for each fiscal year of the Trust or other applicable period, an amount equal to the federal income tax depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such year or period, Depreciation shall be in an amount that bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided , however , that if the federal income tax depreciation, amortization or other cost recovery deduction for such year or period is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Sponsor.

Depository ” means The Depository Trust Company, New York, New York, or such other depository of Shares as may be selected by the Sponsor as specified herein.

Depository Agreement ” means the Letter of Representations relating to each Fund from the Sponsor to the Depository.

 

3


Distributor ” means any Person from time to time engaged to provide distribution services or related services to the Trust pursuant to authority granted by the Sponsor or the Trust.

DTC ” shall have the meaning assigned to such term in Article IV Section 7.

Exchange ” means the American Stock Exchange or, if the Shares of any Fund shall cease to be listed on the American Stock Exchange and are listed on one or more other exchanges, the exchange on which the Shares of such Fund are principally traded, as determined by the Sponsor.

Fund ” means an established and designated Series of Shares of the Trust.

Gross Asset Value ” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

(a) The initial Gross Asset Value of any asset contributed by a Shareholder to the Trust shall be the gross fair market value of such asset as determined by the Sponsor.

(b) The Gross Asset Values of all Trust assets shall be adjusted to equal their respective gross fair market values, as determined by the Sponsor using such reasonable method of valuation as it may adopt, as of the following times:

(i) the acquisition of an additional interest in the Trust by a new or existing Shareholder in exchange for more than a de minimis Capital Contribution, if the Sponsor reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Shareholders in the Trust;

(ii) the distribution by the Trust to a Shareholder of more than a de minimis amount of property as consideration for an interest in the Trust, if the Sponsor reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Shareholders in the Trust;

(iii) the liquidation of the Trust within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g); and

(iv) at such other times as the Sponsor shall reasonably determine necessary or advisable in order to comply with Treasury Regulation Sections 1.704-1(b) and 1.704-2.

(c) The Gross Asset Value of any Trust asset distributed to a Shareholder shall be the gross fair market value of such asset on the date of distribution.

(d) The Gross Asset Values of Trust assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m); provided , however , that Gross Asset Values shall not be adjusted pursuant to this subsection (d) to the extent that the Sponsor reasonably determines that an adjustment pursuant to subsection (b) above is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subsection (d).

 

4


(e) If the Gross Asset Value of a Trust asset has been determined or adjusted pursuant to subsection (a), subsection (b) or subsection (d) above, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Net Income and Net Losses.

Internal Revenue Service ” or “ IRS ” means the U.S. Internal Revenue Service or any successor thereto.

Liquidation Date ” means the date on which an event giving rise to the dissolution of the Trust occurs.

Net Asset Value of a Fund ” at any time means the total assets of a Fund including, but not limited to, all cash and cash equivalents or other debt securities less total expenses and liabilities of such Fund, determined on the basis of generally accepted accounting principles in the United States, consistently applied under the accrual method of accounting.

Net Asset Value per Creation Unit of a Fund ” means the product obtained by multiplying the Net Asset Value per Share of a Fund by the number of Shares comprising a Creation Unit at such time.

Net Asset Value per Share of a Fund ” means the Net Asset Value of a Fund divided by the number of Shares of the Fund outstanding on the date of calculation.

Net Income ” and “ Net Loss ” mean for each fiscal year or other applicable period, an amount equal to the Trust’s taxable income or loss for such fiscal year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments:

(a) Any income of the Trust that is exempt from federal income tax or excluded from federal gross income and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition shall be added to such taxable income or loss;

(b) Any expenditures of the Trust described in Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) expenditures pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition, shall be subtracted from such taxable income or loss;

(c) In the event the Gross Asset Value of any Trust asset is adjusted pursuant to any provision of this Agreement in accordance with the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Income and Net Loss;

(d) Gain or loss resulting from any disposition of any Trust asset with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such asset differs from its Gross Asset Value;

 

5


(e) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such fiscal year or other applicable period, computed in accordance with the definition of Depreciation; and

(f) Notwithstanding any other provision of this definition, any items which are allocated pursuant to Article IV, Section 8(c) shall not be taken into account in computing Net Income or Net Loss.

Nonrecourse Deductions ” has the meaning given in Treasury Regulation Section 1.704-2(b)(1). The amount of Nonrecourse Deductions for a fiscal year or other applicable period equals the net increase, if any, in the amount of Trust Minimum Gain during such fiscal year or period reduced by any distributions during such fiscal year or period of proceeds of a Nonrecourse Liability that are allocable to an increase in Trust Minimum Gain, determined according to the provisions of Treasury Regulation Sections 1.704-2(c) and 1.704-2(h).

Nonrecourse Liability ” has the meaning set forth in Treasury Regulation Section 1.704-2(b)(3).

Outstanding ” means, with respect to Shares or any class of Shares, all Shares of that class that are issued by the Trust and reflected as outstanding on the Trust’s books and records as of the date of determination.

Percentage Interest ” means, as of any date of determination, (i) as to any Common Shares, the product obtained by multiplying (a) 100% less the percentage applicable to the Shares referred to in clause (iii) by (b) the quotient obtained by dividing (x) the number of such Common Shares by (y) the total number of all Outstanding Common Shares, (ii) as to any other Shares, the percentage established for such Shares by the Sponsor as a part of the issuance of such Shares.

Person ” means any natural person, partnership, limited liability company, trust (including a statutory trust), corporation, association, or other entity.

Preferred Shares ” means a class of Shares that entitles such Shareholders to a preference or priority over the Shareholders of any other class of Shares in (i) the right to share Net Income or Net Loss or items thereof, (ii) the right to share in Trust’s distributions, and/or (iii) rights upon dissolution or liquidation of the Trust. “ Preferred Shares ” shall not include Common Shares.

Prospectus ” means the final prospectus and disclosure document of the Trust, constituting a part of a Registration Statement, as filed with the SEC and declared effective thereby, as the same may at any time and from time to time be amended or supplemented.

Redemption Distribution ” means the cash or other assets to the extent permitted in the Registration Statement or an Authorized Participant Agreement, to be delivered in satisfaction of a redemption of a Redemption Unit as specified in Article IX Section 1.

 

6


Redemption Order ” shall have the meaning assigned thereto in Article IX Section 1.

Redemption Order Date ” shall have the meaning assigned in the Authorized Participant Agreement.

Redemption Unit ” means the minimum number of Shares of a Fund that may be redeemed, which shall be the number of Shares of such Fund constituting a Creation Unit on the relevant Redemption Order Date.

Registration Statement ” means a registration statement on Form S-1, as it may be amended or supplemented from time to time, filed with the Securities and Exchange Commission (“SEC”) pursuant to which the Trust registered the Shares.

Required Allocations ” means (i) any limitation imposed on any allocation of Net Losses under Article IV, Section 8(a) and (ii) any allocation of an item of income, gain, loss or deduction pursuant to Article IV, Sections 8(c)(i), 8(c)(ii), 8(c)(iii), 8(c)(vi) or 8(c)(viii).

Series ” means a series of Shares established pursuant to the terms of this Trust Agreement.

Shareholders ” means the registered holders of Shares of a Fund.

Shareholder Minimum Gain ” means an amount, with respect to each Shareholder Nonrecourse Debt, that would result if such Shareholder Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulation Section 1.704-2(i)(3).

Shareholder Nonrecourse Debt ” has the meaning given to the term “partner nonrecourse debt” in Treasury Regulation Section 1.704-2(b)(4).

Shareholder Nonrecourse Deductions ” has the meaning given to the term “partner nonrecourse deduction” in Treasury Regulation Section 1.704-2(i)(2). The amount of Shareholder Nonrecourse Deductions with respect to a Shareholder Nonrecourse Debt for a fiscal year or other applicable period equals the net increase, if any, in the amount of Shareholder Minimum Gain during such fiscal year or other applicable period attributable to such Shareholder Nonrecourse Debt, reduced by any distributions during that fiscal year or other applicable period to the Shareholder that bears the economic risk of loss for such Shareholder Nonrecourse Debt to the extent that such distributions are from the proceeds of such Shareholder Nonrecourse Debt and are allocable to an increase in Shareholder Minimum Gain attributable to such Shareholder Nonrecourse Debt, determined according to the provisions of Treasury Regulation Sections 1.704-2(h) and 1.704-2(i).

Shares ” means the equal proportionate units of undivided beneficial interest in a Fund and may include fractions of Shares.

Sponsor ” means ProShares Capital Management, LLC, or any substitute or designee of the then Sponsor therefor as provided herein, or any successor thereto by merger or operation of law. Sponsor shall also mean any person directly or indirectly instrumental in organizing each Fund or any person who will manage or participate in the management of each Fund any other

 

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person who regularly performs or selects the persons who perform services for the Funds. Sponsor does not include wholly independent third parties such as attorneys, accountants and underwriters whose only compensation is for professional services rendered in connection with the offering of the Shares. The term “Sponsor” shall be deemed to include its Affiliates.

Sponsor Agreement ” means an agreement between the Trust and the Sponsor setting forth, among other things, the Sponsor’s compensation and the amount to be charged as a Transaction Fee, as it may be amended or supplemented from time to time in accordance with its terms.

Subsidiary ” means, with respect to any Person, as of any date of determination, any other Person as to which such Person owns or otherwise controls, directly or indirectly, more than 50% of the voting shares or other similar interests or a sole general partner interest or managing member or similar interest of such Person.

Tax Matters Partner ” means the “tax matters partner” as defined in the Code.

Transaction Fee ” shall mean a non-refundable transaction fee to be payable by an Authorized Participant to the Administrator and/or Fund in connection with each purchase of a Creation Unit by an Authorized Participant.

Treasury Regulations ” means regulations, including proposed or temporary regulations, promulgated under the Code. References herein to specific provisions of proposed or temporary regulations shall include analogous provisions of final Treasury Regulations or other successor Treasury Regulations.

Trust ” means ProShares Trust II, the Delaware statutory trust formed pursuant to the Certificate of Trust, the business and affairs of which are governed by this Trust Agreement.

Trust Agreement ” means this Amended and Restated Trust Agreement as the same may at any time or from time to time be amended.

Trustee ” means Wilmington Trust Company or any successor thereto as provided herein, acting not in its individual capacity but solely as trustee of the Trust.

Trust Estate ” means, with respect to a Fund, all property and cash held by such Fund, and all proceeds therefrom.

Trust Minimum Gain ” means that amount determined in accordance with the principles of Treasury Regulation Section 1.704-2(d).

ARTICLE II

PURPOSE OF TRUST AND OFFICES

Section 1. NAME . The Trust shall be known as “ProShares Trust II” and the Sponsor shall conduct the business of the Trust under that name or any other name as it may from time to time determine provided that the Sponsor may, without Shareholder approval, change the name of the Trust or any Series or Class (as defined in Article IV Section 1) of Shares thereof that may

 

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be established from time to time. Any name change of the Trust shall become effective upon the filing of a properly executed certificate of amendment or a restated certificate pursuant to Section 3810 of the Delaware Trust Statute.

Section 2. BUSINESS OFFICES . The principal office of the Trust, and such additional offices as the Sponsor may establish, shall be located at such place or places inside or outside the State of Delaware as the Sponsor may designate from time to time in writing to the Trustee and the Shareholders. Initially, the principal office of the Trust shall be at c/o ProShare Capital Management, LLC, 7501 Wisconsin Avenue, Suite 1000 – East Tower, Bethesda, MD 20814. The principle office of the Trustee shall be at the Corporate Trust Office.

Section 3. DECLARATION OF TRUST . The Trust hereby acknowledges that the Trust has received the sum of $250 for each Fund in bank accounts in the name of each Fund controlled by the Sponsor from the Sponsor, and hereby declares that it shall hold such sum in trust, upon and subject to the conditions set forth herein for the use and benefit of the Shareholders of each Fund. It is the intention of the parties hereto that the Trust shall continue to be a statutory trust organized in series, or Funds, under the Delaware Trust Statute and that this Trust Agreement shall constitute the governing instrument of the Trust. It is not the intention of the parties hereto to create a general partnership, limited partnership, limited liability company, joint stock association, corporation, bailment or any form of legal relationship other than a Delaware statutory trust. Nothing in this Trust Agreement shall be construed to make the Shareholders partners or members of a joint stock association. The Sponsor shall not be liable to any person for the failure of the Trust or any Fund to qualify as a publicly traded partnership under the Code or any comparable provision of the laws of any State or other jurisdiction where such treatment is sought. The Trustee has filed the certificate of trust required by Section 3810 of the Delaware Trust Statute in connection with the formation of the Trust under the Delaware Trust Statute.

Section 4. PURPOSES AND POWERS . The purposes of the Trust and each Fund shall be to (a) directly or indirectly trade, buy, sell, spread or otherwise acquire, hold, dispose and redeem swap agreements, forward contracts, options on forward contracts, futures contracts or options on futures contracts or other derivative instruments which provide exposure to each Fund’s benchmark; (b) buy or sell cash equivalents or other short term fixed instruments; (c) engage in any other transaction designed to facilitate the Trust’s ability to track its benchmark, the inverse of its benchmark or a stated multiple thereof; (d) enter into any lawful transaction and engage in any lawful activities in furtherance of or incidental to the foregoing purposes; or (e) engage in any other lawful business activity for which a Delaware statutory trust may be organized.

Section 5. TAX TREATMENT .

(a) By accepting Shares or interests therein, the Shareholders and/or Beneficial Owners each (i) expresses its intention that the Shares of each Fund will qualify under applicable tax law as interests in a publicly traded partnership which holds the Trust Estate of each Fund for their benefit, (ii) agrees that it will file its own Federal, state and local income, franchise and other tax returns in a manner that is consistent with the treatment of each Fund as a publicly traded partnership in which each of the Shareholders thereof is a beneficiary and

 

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(iii) agrees to use reasonable efforts to notify the Sponsor promptly upon a receipt of any notice from any taxing authority having jurisdiction over such holders of Shares of each Fund with respect to the treatment of the Shares of such Fund as anything other than interests in a publicly traded partnership.

(b) The Sponsor shall prepare or cause to be prepared and filed each Fund’s tax returns as a publicly traded partnership for Federal, state and local tax purposes. Each Fund hereby indemnifies, to the full extent permitted by law, the Sponsor from and against any damages or losses (including attorneys’ fees) arising out of or incurred in connection with any action taken or omitted to be taken by it in carrying out its responsibilities under this Section 5(b), provided such action taken or omitted to be taken does not constitute fraud, gross negligence or willful misconduct.

(c) Each Shareholder shall furnish the Sponsor with information necessary to enable the Sponsor to comply with U.S. federal income tax information reporting requirements in respect of such Shareholder’s Shares.

(d) The Trust shall make the election under Section 754 of the Code in accordance with applicable regulations thereunder, subject to the reservation of the right to seek to revoke any such election upon the Sponsor’s determination that such revocation is in the best interests of the Shareholders. Notwithstanding any other provision herein contained, for the purposes of computing the adjustments under Section 743(b) of the Code, the Sponsor shall be authorized (but not required) to adopt a convention whereby the price paid by a transferee of a Share will be deemed to be the lowest quoted closing price of the Shares on any Exchange on which such Shares are traded during the calendar month in which such transfer is deemed to occur.

(e) Except as otherwise provided herein, the Sponsor shall determine whether the Trust should make any other elections permitted by the Code.

(f) The Sponsor shall designate one Shareholder as the Tax Matters Partner (as defined in the Code). The Tax Matters Partner is authorized and required to represent the Trust (at the Trust’s expense) in connection with all examinations of the Trust’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Trust funds for professional services and costs associated therewith. Each Shareholder agrees to cooperate with the Tax Matters Partner and to do or refrain from doing any or all things reasonably required by the Tax Matters Partner to conduct such proceedings.

(g) Notwithstanding any other provision of this Agreement, the Sponsor is authorized to take any action that may be required to cause the Trust and other Subsidiaries of the Trust to comply with any withholding requirements established under the Code or any other federal, state, local or foreign law including pursuant to Sections 1441, 1442, 1445 and 1446 of the Code. To the extent that the Trust is required or elects to withhold and pay over to any taxing authority any amount resulting from the allocation or distribution of income to any Shareholder (including by reason of Section 1446 of the Code), the Sponsor may treat the amount withheld as a distribution of cash pursuant to Article IV, Section 7 or Article X, Section 1 in the amount of such withholding from such Shareholder. Any increase or decrease in

 

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withholding tax incurred by the Trust or any Subsidiary of the Trust resulting from the identity, nationality, residence or status of a Shareholder shall be allocable to and reduce the distributions of such Shareholder.

Section 6. LEGAL TITLE . Legal title to all of the Trust Estate of each Fund shall be vested in the Trust as a separate legal entity; provided , however , that where applicable law in any jurisdiction requires any part of the Trust Estate to be vested otherwise, the Sponsor may cause legal title to the Trust Estate or any portion thereof to be held by or in the name of the Sponsor or any other Person (other than a Shareholder on the Trustee) as nominee.

ARTICLE III

THE SPONSOR; THE TRUSTEE

Section 1. MANAGEMENT OF THE TRUST . Pursuant to Sections 3806(a) and 3806(b)(7) of the Delaware Trust Statute, the business and affairs of the Trust shall be managed by the Sponsor in lieu of the Trustee with such powers of delegation as may be permitted by law. The Sponsor shall have power to conduct the business of the Trust and carry on its operations in any and all of its branches and maintain offices both within and without the State of Delaware, in any and all states of the United States of America, in the District of Columbia, in any and all commonwealths, territories, dependencies, colonies, or possessions of the United States of America, and in any foreign jurisdiction and to do all such other things and execute all such instruments as it deems necessary, proper or desirable in order to promote the interests of the Trust although such things are not herein specifically mentioned. Any determination as to what is in the interests of the Trust made by the Sponsor in good faith shall be conclusive. In construing the provisions of this Trust Agreement, the presumption shall be in favor of a grant of power to the Sponsor. The enumeration of any specific power in this Trust Agreement shall not be construed as limiting the aforesaid power. The powers of the Sponsor may be exercised without order of or resort to any court.

Section 2. AUTHORITY OF SPONSOR . In addition to and not in limitation of any rights and powers conferred by law or other provisions of this Trust Agreement, the Sponsor shall have and may exercise on behalf of the Trust, all powers and rights necessary, proper, convenient or advisable to effectuate and carry out the purposes, business and objectives of the Trust, which shall include, without limitation, the following:

(a) To enter into, execute, deliver and maintain, and to cause the Trust to perform its obligations under, contracts, agreements and any or all other documents and instruments, and to do and perform all such things as may be in furtherance of Trust purposes or necessary or appropriate for the offer and sale of the Shares and the conduct of Trust activities.

(b) To establish, maintain, deposit into, sign checks and/or otherwise draw upon accounts on behalf of the Trust with appropriate banking and savings institutions, and execute and/or accept any instrument or agreement incidental to the Trust’s business and in furtherance of its purposes, any such instrument or agreement so executed or accepted by the Sponsor in the Sponsor’s name shall be deemed executed and accepted on behalf of the Trust by the Sponsor.

 

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(c) To deposit, withdraw, pay, retain and distribute each Trust Estate or any portion thereof in any manner consistent with the provisions of this Trust Agreement.

(d) To supervise the preparation and filing of the Registration Statement, the Prospectus and any supplements and amendments thereto.

(e) To pay or authorize the payment of distributions to the Shareholders and expenses of each Fund.

(f) To make any elections on behalf of the Trust under the Code, or any other applicable U.S. federal or state tax law as the Sponsor shall determine to be in the best interests of the Trust.

(g) In the sole discretion of the Sponsor, to admit an Affiliate or Affiliates of the Sponsor as additional Sponsors.

(h) To adopt disclosure and financial reporting information gathering and control policies and procedures.

(i) To make any necessary determination or decision in connection with the preparation of the Trust’s financial statements and amendments thereto, and the Prospectus.

(j) To prepare, file and distribute, if applicable, any periodic reports or updates that may be required under the Securities Exchange Act of 1934, the CEA, or the rules and regulations thereunder.

(k) Execute, file, record and/or publish all certificates, statements and other documents and do any and all other things as may be appropriate for the formation, qualification and operation of the Trust and for the conduct of its business in all appropriate jurisdictions.

(l) Appoint and remove independent public accountants to audit the accounts of the Trust.

(m) Employ attorneys to represent the Trust.

(n) Adopt, implement or amend, from time to time, such disclosure and financial reporting information gathering and control policies and procedures as are necessary or desirable to ensure compliance with applicable disclosure and financial reporting obligations under any applicable securities laws.

(o) Enter into a Distribution Agreement with the Distributor and discharge the duties and responsibilities of the Trust and the Sponsor thereunder.

(p) For each Fund, enter into an Authorized Participant Agreement with each Authorized Participant and discharge the duties and responsibilities of the Fund and the Sponsor thereunder.

 

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(q) For each Fund, in connection with purchase of a Creation Unit , receive Creation Unit Capital Contributions from Authorized Participants.

(r) For each Fund, receive from Authorized Participants and process or cause the Distributor or Administrator, as applicable, to process properly submitted Redemption Orders.

(s) Cause the Trust to enter into one or more custodian agreements, including with the Sponsor, on terms and conditions acceptable to the Sponsor.

(t) Authorize the Trust, for the Trust or any Fund or Class, to enter into one or more administration, transfer agency and accounting agreements and agreements for such other services necessary or appropriate to carry out the business and affairs of the Trust with any party or parties on terms and conditions acceptable to the Sponsor, including but not limited to agreements with legal counsel and an independent registered public accounting firm.

(u) For each Fund, receive a Redemption Order from a redeeming Authorized Participant through the Depository, and thereupon cancel or cause to be cancelled, the Shares to be redeemed in connection with the Redemption Order.

(v) Interact with the Depository as required.

(w) Enter into the Sponsor Agreement on terms and conditions acceptable to the Sponsor.

(x) Prosecute, defend, settle or compromise actions or claims at law or in equity as may be necessary or proper to enforce or protect the Trust’s interests. The Sponsor shall satisfy any judgment, decree or decision of any court, board or authority having jurisdiction or any settlement of any suit or claim prior to judgment or final decision thereon, first, out of any insurance proceeds available therefor, next, out of the Funds’ assets on a pro rata basis.

(y) Delegate those of its duties hereunder as it shall determine from time to time to one or more officers of the Trust, the Administrator, Distributor, Commodity Trading Advisors, Commodity Pool Operators or other Persons.

(z) In general, to carry on any other business in connection with or incidental to any of the foregoing powers, to do everything necessary, suitable or proper for the accomplishment of any purpose or the attainment of any object or the furtherance of any power herein set forth, either alone or in association with others, and to do every other act or thing incidental or appurtenant to or growing out of or connected with the aforesaid business or purposes, objects or powers.

The foregoing clauses shall be construed both as objects and powers, and the foregoing enumeration of specific powers shall not be held to limit or restrict in any manner the general powers of the Sponsor. Any action by one or more of the Sponsor hereunder shall be deemed an action on behalf of the Trust or the applicable Series or Class, and not an action in an individual capacity.

 

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Section 3. PAYMENT OF EXPENSES BY THE TRUST . The Sponsor is authorized to pay or cause to be paid out of the principal or income of the Trust any expenses of the Trust.

Section 4. TRUSTEE TERM; RESIGNATION .

(a) Wilmington Trust Company has been appointed and hereby agrees to serve as the Trustee of the Trust solely for purposes of satisfying the requirements of Section 3807 of the Delaware Trust Statute. The Trust shall have only one trustee unless otherwise determined by the Sponsor. The Trustee shall serve until such time as the Sponsor removes the Trustee or the Trustee resigns and a successor Trustee is appointed by the Sponsor in accordance with the terms of Section 7 of this Article.

(b) The Trustee may resign at any time upon the giving of at least sixty days’ advance written notice to the Trust; provided , that such resignation shall not become effective unless and until a successor Trustee shall have been appointed by the Sponsor in accordance with Section 7 of this Article or by the Court of Chancery of the State of Delaware. If the Sponsor does not appoint a successor Trustee within such sixty day period, the Trustee may apply, at the expense of the Trust, to the Court of Chancery of the State of Delaware for the appointment of a successor Trustee.

Section 5. POWERS OF TRUSTEE . Notwithstanding any other provision of this Trust Agreement, the Trustee shall not be entitled to exercise any of the powers, nor shall the Trustee have any of the duties and responsibilities, of the Sponsor described in this Trust Agreement. The Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Delaware Trust Statute. The Trustee shall have only the rights, obligations and liabilities specifically provided for herein and shall have no implied rights, duties, obligations and liabilities with respect to the business and affairs of the Trust or any Fund. The Trustee shall have the power and authority to execute and file certificates as required by the Delaware Trust Statute and to accept service of process on the Trust in the State of Delaware. The Trustee shall provide prompt notice to the Sponsor of its performance of any of the foregoing. The Sponsor shall reasonably keep the Trustee informed of any actions taken by the Sponsor with respect to the Trust that would reasonably be expected to affect the rights, obligations or liabilities of the Trustee hereunder or under the Delaware Trust Statute.

Section 6. COMPENSATION AND EXPENSES OF THE TRUSTEE . The Trustee shall be entitled to receive from the Sponsor or an Affiliate of the Sponsor (including the Trust) reasonable compensation for its services hereunder as set forth in a separate fee agreement and shall be entitled to be reimbursed by the Sponsor or an Affiliate of the Sponsor (including the Trust) for reasonable out-of-pocket expenses incurred by it in the performance of its duties hereunder, including without limitation, the reasonable compensation, out-of-pocket expenses and disbursements of counsel and such other agents as the Trustee may employ in connection with the exercise and performance of its rights and duties hereunder.

Section 7. SUCCESSOR TRUSTEE . Upon the resignation or removal of the Trustee, the Sponsor shall appoint a successor Trustee by delivering a written instrument to the outgoing Trustee. Any successor Trustee must satisfy the requirements of Section 3807 of the Delaware Trust Statute. Any resignation or removal of the Trustee and appointment of a successor Trustee shall not become effective until a written acceptance of appointment is delivered by the successor Trustee to the outgoing Trustee and the Sponsor and any fees and expenses due to the

 

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outgoing Trustee are paid or waived by the outgoing Trustee. Following compliance with the preceding sentence, the successor Trustee shall become fully vested with all of the rights, powers, duties and obligations of the outgoing Trustee under this Trust Agreement, with like effect as if originally named as Trustee, and the outgoing Trustee shall be discharged of its duties and obligations under this Trust Agreement.

Section 8. LIABILITY OF TRUSTEE . Except as otherwise provided in this Article III, in accepting the trust continued hereby, Wilmington Trust Company acts solely as Trustee hereunder and not in its individual capacity, and all Persons having any claim against Wilmington Trust Company by reason of the transactions contemplated by this Trust Agreement and any other agreement to which the Trust or any Fund is a party shall look only to the appropriate Fund Trust Estate for payment or satisfaction thereof. In particular, but not by way of limitation:

(a) The Trustee shall have no liability or responsibility for the validity or sufficiency of this Trust Agreement or for the form, character, genuineness, sufficiency, value or validity of any Trust Estate or the Shares.

(b) The Trustee shall not be liable for any actions taken or omitted to be taken by it in accordance with the instructions of the Sponsor.

(c) The Trustee shall not have any liability for the acts or omissions of the Sponsor.

(d) The Trustee shall not have any duty or obligation to supervise the performance of any obligations of the Sponsor.

(e) No provision of this Trust Agreement shall require the Trustee to act or expend or risk its own funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder if the Trustee shall have reasonable grounds for believing that such action, repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it.

(f) Under no circumstances shall the Trustee be liable for indebtedness evidenced by or other obligations of the Trust or any Fund arising under this Trust Agreement or any other agreements to which the Trust is a party.

(g) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement, or to appear in, institute, conduct or defend any action or litigation under this Trust Agreement or any other agreements to which the Trust or any Fund is a party, at the request, order or direction of the Sponsor or any Shareholders unless the Sponsor or such Shareholders have offered to Wilmington Trust Company (in its capacity as Trustee and individually) security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by Wilmington Trust Company (including, without limitation, the reasonable fees and expenses of its counsel) therein or thereby.

(h) The Trustee shall not be required to take any action hereunder or otherwise if the Trustee shall have reasonably determined, or shall have been advised by counsel, that such action is likely to result in liability on the part of the Trustee or is contrary to the terms hereof or is otherwise contrary to law.

 

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(i) Whenever the Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Trust Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision of this Trust Agreement, the Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Sponsor requesting instruction as to the course of action to be adopted, and, to the extent the Trustee acts in good faith in accordance with any such instruction received, the Trustee shall not be liable on account of such action to any Person. If the Trustee shall not have received appropriate instructions within ten calendar days of sending such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Trust Agreement, and the Trustee shall have no liability to any Person for any such action or inaction.

(j) The Trustee shall have no liability whatsoever to any Person except for its own willful misconduct or gross negligence.

ARTICLE IV

SHARES

Section 1. DIVISION OF BENEFICIAL INTEREST .

(a) The beneficial interests in the Trust shall at all times be divided into an unlimited number of Shares, without par value. The Sponsor may authorize the division of Shares into separate Series (which may be referred to as “Funds”) and the division of Series into separate classes of Shares (each a “Class”). The different Series shall be established and designated, and the variations in the relative rights and preferences as among the different Series and Classes shall be fixed and determined by the Sponsor.

(b) Unless the Sponsor determines otherwise, no Share shall have any priority or preference over any other Share of the same Class of a Series with respect to dividends or distributions upon termination of the Trust or of such Class or Series. Unless the Sponsor determines otherwise, all dividends and distributions shall be made ratably among all Shareholders of a particular Class of a Series from the assets held with respect to such Series according to the number of Shares of such Class of such Series held of record by such Shareholder on the record date for any dividend or distribution or on the date of termination, as the case may be. Shareholders shall have no preemptive or other right to subscribe to any additional Shares or other securities issued by the Trust or any Series. The Sponsor may from time to time divide or combine the Shares of any particular Series into a greater or lesser number of Shares of that Series.

(c) The Sponsor may issue Shares of any Fund or Class thereof for such consideration and on such terms as it may determine (or for no consideration), all without action or approval of the Shareholders thereof. All Shares when so issued on the terms determined by the Sponsor shall be fully paid and non-assessable. Every Shareholder and Beneficial Owner, by virtue of having purchased or otherwise acquired an interest in a Share, shall be deemed to have expressly consented and agreed to be bound by the terms of this Trust Agreement. Shareholders shall not have any preemptive rights to acquire additional Shares except as otherwise determined by the Sponsor.

 

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Section 2. OWNERSHIP OF SHARES . The ownership of Shares shall be recorded on the books of the Trust or a transfer or similar agent for the Trust, which books shall separately record the Shares of each Series and Class. No certificates evidencing the ownership of Shares shall be issued except as the Sponsor may otherwise determine from time to time. The record books of the Trust as kept by the Trust or any transfer or similar agent, as the case may be, shall be conclusive as to who are the Shareholders of each Series and Class and as to the number of Shares of each Series and Class held from time to time by each Shareholder.

Section 3. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY .

(a) The death, incapacity, dissolution, termination or bankruptcy of a Shareholder during the existence of the Trust shall not operate to dissolve or terminate the Trust or any Series or Class thereof, nor entitle the representative of such Shareholder to an accounting or to take any action in court or elsewhere against the Trust, the Sponsor or the Trustee, but entitles such representative only to the rights of such Shareholder under this Trust. Ownership of Shares shall not entitle the Shareholder to any title in or to the whole or any part of the Trust Estate or right to call for a partition or division of the same or for an accounting.

(b) The Shareholders shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the general corporation law of Delaware and no Shareholders shall be liable for claims against, or debts of the Trust or the applicable Fund.

Section 4. ESTABLISHMENT AND DESIGNATION OF SERIES OR CLASS .

(a) The establishment and designation of any Series or Class of Shares shall be effective upon the adoption by the Sponsor of a written instrument that sets forth such establishment and designation, whether directly in such instrument or by reference to, or approval of, another document that sets forth each such Series or Class of Shares including in a Registration Statement. The relative rights and preferences of each Series and Class of Shares thereof shall be as set forth herein and as set forth in such Registration Statement, except to the extent otherwise provided in the instrument establishing such Series or Class of Shares. Each Series established pursuant to this Section 4 shall be considered separate from each other Series as set forth in this Article IV.

(b) Shares of each Series or Class established pursuant to this Section 4, except to the extent otherwise provided in the instrument establishing such Series or Class, shall have the following relative rights and preferences:

(i) The Trust Estate of each Fund shall be held in separate and distinct records (directly or indirectly, including through a nominee or otherwise) and accounted for in such separate and distinct records separately from the other assets of the Trust and every other Series and are referred to as “assets belonging to” that Series. The assets belonging to a Series shall belong only to that Series for all purposes, and to no other Series, and shall be subject only

 

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to the rights of creditors of that Series. Any assets, income, earnings, profits, and proceeds thereof, funds, or payments which are not readily identifiable as belonging to any particular Series shall be allocated between and among one or more Series as the Sponsor deems fair and equitable. Each such allocation shall be conclusive and binding upon the Shareholders of all Series for all purposes, and such assets, earnings, income, profits or funds, or payments and proceeds thereof shall be referred to as assets belonging to that Series. The assets belonging to a Series shall be so recorded upon the books of the Trust, and shall be held in trust for the benefit of the Shareholders of that Series. The assets belonging to a Series shall be charged with the liabilities of that Series and all expenses, costs, charges and reserves attributable to that Series, except that liabilities, expenses, costs, charges and reserves allocated solely to a particular Class, if any, shall be borne by that Class.

(ii) The debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular Series shall be enforceable against the assets of such Series only, and not against the assets of the Trust generally or of any other Series and, unless otherwise provided by the Sponsor, none of the debts, liabilities, obligations, expenses incurred, contracted for or otherwise existing with respect to the Trust generally or any other Series shall be enforceable against the assets of such Series. Any general liabilities, expenses, costs, charges or reserves of the Trust which are not readily identifiable as being held with respect to any particular Series shall be allocated and charged by the Sponsor to and among any one or more of the Series in such manner and on such basis as the Sponsor in its sole discretion deems fair and equitable. Notice of the contractual limitation on liabilities among Series described in the first sentence of this paragraph may, in the Sponsor’s discretion, be set forth in the certificate of trust of the Trust (whether originally or by amendment) as filed or to be filed in the Office of the Secretary of State of the State of Delaware pursuant to the Delaware Trust Statute, and upon the giving of such notice in the certificate of trust, the statutory provisions of Section 3804 of the Delaware Trust Statute relating to limitations on liabilities among Series (and the statutory effect under Section 3804 of the Delaware Trust Statute of setting forth such notice in the certificate of trust) shall become applicable to the Trust and each Series. Any person extending credit to, contracting with or having any claim against any Series may look only to the assets of that Series to satisfy or enforce any debt, with respect to that Series. No Shareholder or former Shareholder of any Series shall have a claim on or any right to any assets allocated or belonging to any other Series, except to the extent that such Shareholder or former Shareholder has such a claim or right hereunder as a Shareholder or former Shareholder of such other Series.

(c) Notwithstanding any other provisions of this Trust Agreement, no distribution including, without limitation, any distribution paid upon termination of the Trust or of any Series or Class with respect to, nor any redemption or repurchase of, the Shares of any Series or Class shall be effected by the Trust other than from the assets held with respect to such Series, nor shall any Shareholder of any particular Series otherwise have any right or claim against the assets held with respect to any other Series except to the extent that such Shareholder has such a right or claim hereunder as a Shareholder of such other Series. The Sponsor shall have full discretion to determine which items shall be treated as income and which items as capital; and each such determination and allocation shall be conclusive and binding upon the Shareholders. Any Shares of a Series acquired, through purchase, exchange or otherwise, by another Series shall not be deemed cancelled, unless the Sponsor affirmatively determines otherwise.

 

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(d) Except to the extent otherwise provided in the instrument establishing such Series, all the Shares of each particular Series shall represent an equal proportionate interest in the assets held with respect to that Series (subject to the liabilities held with respect to that Series and such rights and preferences as may have been established and designated with respect to Classes of Shares within such Series).

(e) Except to the extent otherwise provided in the instrument establishing such Series, any fractional Share of a Series shall carry proportionately all the rights and obligations of a whole Share of that Series, including rights with respect to voting, receipt of dividends and distributions, redemption of Shares and termination of the Trust.

(f) The Sponsor shall have the authority to provide that the holders of Shares of any Series shall have the right to exchange said Shares for Shares of one or more other Series of Shares in conformity with such requirements and procedures as may be established by the Sponsor.

Section 5. ESTABLISHMENT OF INITIAL FUNDS OF THE TRUST.

(a) Without limiting the authority of the Sponsor set forth in Section 4 to establish and designate any further Series without requiring an amendment of this Trust Agreement, the Sponsor hereby establishes and designates fourteen initial Series (the “Initial Funds”) as follows:

Ultra DJ-AIG Commodity ProShares

UltraShort DJ-AIG Commodity ProShares

Ultra DJ-AIG Agriculture ProShares

UltraShort DJ-AIG Agriculture ProShares

Ultra DJ-AIG Crude Oil ProShares

UltraShort DJ-AIG Crude Oil ProShares

Ultra Gold ProShares

UltraShort Gold ProShares

Ultra Silver ProShares

UltraShort Silver ProShares

Ultra Euro ProShares

UltraShort Euro ProShares

Ultra Yen ProShares

UltraShort Yen ProShares

(b) The relative rights and preferences of the Initial Funds shall be as set forth in the Registration Statement for such Funds.

 

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Section 6. OFFER OF SHARES, PROCEDURES FOR CREATION AND ISSUANCE OF CREATION UNITS .

(a) Subject to the Sponsor establishing alternative procedures from time to time in its sole discretion, the procedures relating to the creation and issuance of Creation Units will be set forth in the Authorized Participant Agreements and Authorized Participant Handbooks for each Fund (which may be amended from time to time in accordance with the provisions of the Authorized Participant Agreements and any such amendment will not constitute an amendment of this Trust Agreement), and will govern the Trust with respect to the creation and issuance of Creation Units. The number of Creation Units which may be issued by each Fund is limited only by the number of outstanding shares of a Fund or the Trust, as the case may be, that are registered for sale with the SEC. Unless the Sponsor determines otherwise, certificates for Creation Units will not be issued.

(b) Rejection . For each Fund, the Sponsor shall have the absolute right, but shall have no obligation, to reject any Creation Unit Capital Contribution:

Section 7. DISTRIBUTIONS .

(a) Distributions on Shares may be paid with such frequency as the Sponsor may determine, which may be daily or otherwise, to the Shareholders, from such of the income and capital gains, accrued or realized, from each Trust Estate, after providing for actual and accrued liabilities. Except to the extent the Sponsor otherwise determines, all distributions on Shares thereof shall be distributed pro rata to the Shareholders in proportion to the total outstanding Shares held by such Shareholders at the date and time of record established for the payment of such distribution. Such distributions may be made in cash or Shares as determined by the Sponsor or pursuant to any program that the Sponsor may have in effect at the time for the election by each Shareholder of the mode of the making of such distribution to that Shareholder. Nothing in this Section 8 shall obligate the Sponsor to cause the Trust to make any distributions.

Section 8. ALLOCATIONS FOR CAPITAL ACCOUNT PURPOSES . For purposes of maintaining the Capital Accounts and in determining the rights of the Shareholders among themselves, the Trust’s Net Income and Net Loss shall be allocated among the Shareholders in each fiscal year or other applicable period (or portion thereof) as provided herein below.

(a) Net Income and Net Loss. After giving effect to the allocations set forth in this Article IV, Section 8(c), 8(d) and 8(e), Net Income or Net Loss for each fiscal year or other applicable period shall be allocated to the Shareholders in accordance with their respective Percentage Interests.

(b) Allocation upon Termination. With respect to all Article IV, Section 8(a) allocations following a Liquidation Date, such allocations shall be made after Capital Account balances have been adjusted by all other allocations provided under this Article IV, Section 8 and after giving effect to all distributions during such fiscal year or other applicable period; provided, however, that solely for purposes of this Article IV, Section 8(b), Capital Accounts shall not be adjusted for distributions made pursuant to Article X, Section 1.

 

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(c) Mandatory Allocations. Notwithstanding any other provision of this Article IV, Section 8, the following special allocations shall be made for such taxable period:

(i) Trust Minimum Gain Chargeback. Notwithstanding any other provision of this Article IV Section 8, if there is a net decrease in Trust Minimum Gain during any Trust fiscal year or other applicable period, then, subject to the exceptions set forth in Treasury Regulation Sections 1.704-2(f)(2), (3), (4) and (5), each Shareholder shall be allocated items of Trust income and gain for such period (and, if necessary, subsequent periods) in an amount equal to such Shareholder’s share of Trust Minimum Gain, as determined in accordance with Treasury Regulation Section 1.704-2(g). This Article IV, Section 8(c)(i) is intended to comply with the Trust Minimum Gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.

(ii) Chargeback of Shareholder Minimum Gain. Notwithstanding the other provisions of this Article IV, Section 8 (other than Article IV, Section 8(c)(i)), if there is a net decrease in Shareholder Minimum Gain attributable to a Shareholder Nonrecourse Debt during any Trust fiscal year or other applicable period, then, subject to the exception set forth in Treasury Regulation Section 1.704-2(i)(4), each Shareholder with a share of Shareholder Minimum Gain attributable to such Shareholder Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(5), shall be allocated items of Trust income and gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(i)(4). This Article IV, Section 8(c)(ii) is intended to comply with the chargeback of items of income and gain requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

(iii) Qualified Income Offset. Notwithstanding any other provision of this Article IV, Section 8 (other than Article IV, Section 8(c)(i) and (ii)), in the event any Shareholder unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5), or (6) that cause an increase in an Adjusted Capital Account deficit of such Shareholder, items of Trust income and gain shall be specially allocated to such Shareholder in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations promulgated under Section 704(b) of the Code, the deficit balance in its Adjusted Capital Account. This Article IV, Section 8(c)(iii) is intended to qualify and be construed as a “qualified income offset” within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

(iv) No Excess Deficit. To the extent that any Shareholder has or would have, as a result of an allocation of Net Loss (or item thereof), an Adjusted Capital Account deficit, such amount of Net Loss (or item thereof) shall be allocated to the other Shareholders in accordance with this Article IV, Section 8, but in a manner which will not produce an Adjusted Capital Account deficit as to any such Shareholder. To the extent such allocation would result in all Shareholders having Adjusted Capital Account deficits, such Net Loss (or item thereof) shall be allocated in accordance with Article IV, Section 8(a). Any allocations of Net Loss (or item thereof) pursuant to this Article IV, Section 8(c)(iv) shall be reversed with a corresponding amount of Net Profits in subsequent years.

(v) Nonrecourse Deductions. Nonrecourse Deductions for any taxable period shall be allocated to the Shareholders in accordance with their respective Percentage Interests. If the Sponsor determines that the Trust’s Nonrecourse Deductions should be allocated in a different ratio to satisfy the safe harbor requirements of the Treasury Regulations promulgated under Section 704(b) of the Code, the Sponsor is authorized, upon notice to the other Shareholders, to revise the prescribed ratio to the numerically closest ratio that does satisfy such requirements.

 

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(vi) Shareholder Nonrecourse Deductions. Shareholder Nonrecourse Deductions for any taxable period shall be allocated 100% to the Shareholder that bears the economic risk of loss with respect to the Shareholder Nonrecourse Debt to which such Shareholder Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i).

(vii) Nonrecourse Liabilities. Nonrecourse Liabilities of the Trust described in Treasury Regulation Section 1.752-3(a)(3) shall be allocated among the Shareholders in a manner chosen by the Sponsor and consistent with such Treasury Regulation.

(viii) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Trust asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such item of gain or loss shall be specially allocated to the Shareholders in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Treasury Regulations.

(ix) Curative Allocation.

(A) The Required Allocations are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Shareholders that, to the extent possible, all Required Allocations shall be offset either with other Required Allocations or with special allocations of other items of Trust income, gain, loss or deduction pursuant to this Article IV, Section 8 (c)(ix). Therefore, notwithstanding any other provision of this Article IV, Section 8 (other than the Required Allocations), the Sponsor shall make such offsetting special allocations of Trust income, gain, loss or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, each Shareholder’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Shareholder would have had if the Required Allocations were not part of this Agreement and all Trust items were allocated pursuant to the economic agreement among the Shareholders.

(B) The Sponsor shall, with respect to each fiscal year or other applicable period, (1) apply the provisions of Article IV, Section 8(c)(ix)(A) in whatever order is most likely to minimize the economic distortions that might otherwise result from the Required Allocations, and (2) divide all allocations pursuant to Article IV, Section 8 (c)(ix)(A) among the Shareholders in a manner that is likely to minimize such economic distortions.

 

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Section 9. ALLOCATIONS FOR TAX PURPOSES .

(a) Except as otherwise provided herein, for federal income tax purposes, each item of income, gain, loss and deduction shall be allocated among the Shareholders in the same manner as its correlative item of “book” income, gain, loss or deduction is allocated pursuant to Article IV, Section 8.

(b) In accordance with Sections 704(b) and 704(c) of the Code and the Treasury Regulations thereunder, income, gain, loss and deduction with respect to any property contributed to the Trust shall solely for federal income tax purposes, be allocated among the Shareholders so as to take into account any variation between the adjusted basis of such property to the Trust for federal income tax purposes and the initial Gross Asset Value. If the Gross Asset Value of any Trust asset is adjusted as described in the definition of Gross Asset Value, subsequent allocations of income, gain, loss and deduction with respect to such Trust asset shall take into account any variation between the adjusted basis of such Trust Asset for federal income tax purposes and its Gross Asset Value in the same manner as under Section 704(c) of the Code and the Treasury Regulations thereunder. In furtherance of the foregoing, the Trust shall employ any method under Section 704(c) of the Code selected by the Sponsor. The Sponsor, in an attempt to eliminate book-tax disparities, expects items of income, gain, or loss will be allocated for U.S. federal income tax purposes among the Members under the principles of the remedial method of Treasury Regulations Section 1.704-3(d). Allocations pursuant to this Section 9(b) are solely for purposes of federal, state, and local taxes and shall not affect, or in any way be taken into account in computing, any Shareholder’s Capital Account or share of Net Income, Net Loss, other items, or distributions pursuant to any provision of this Agreement.

(c) For the proper administration of the Trust and for the preservation of uniformity of the Shares (or any class or classes thereof), the Sponsor shall (i) adopt such conventions as it deems appropriate in determining the amount of depreciation, amortization and cost recovery deductions; (ii) make special allocations for federal income tax purposes of income (including gross income) or deductions; (iii) amend the provisions of this Agreement as appropriate (x) to reflect the proposal or promulgation of Treasury Regulations under Section 704(b) or Section 704(c) of the Code or (y) otherwise to preserve or achieve uniformity of the Shares (or any class or classes thereof); and (iv) adopt and employ such methods for (A) the maintenance of Capital Accounts for book and tax purposes, (B) the determination and allocation of adjustments under Sections 704(c), 734 and 743 of the Code, (C) the determination and allocation of taxable income, tax loss and items thereof under this Agreement and pursuant to the Code, (D) the determination of the identities and tax classification of Shareholders, (E) the provision of tax information and reports to the Shareholders, (F) the adoption of reasonable conventions and methods for the valuation of assets and the determination of tax basis, (G) the allocation of asset values and tax basis, (H) the adoption and maintenance of accounting methods, (I) the recognition of the transfer of Shares, (J) tax compliance and other tax-related requirements, including the use of computer software, and to use filing and reporting procedures similar to those employed by publicly-traded partnerships and limited liability companies, as it determines in its sole discretion are necessary and appropriate to execute the provisions of this Agreement and to comply with federal, state and local tax law, and to achieve uniformity of Shares within a class. The Sponsor may adopt such conventions, make such allocations and make such amendments to this Agreement as provided in this Article IV, Section 9(c) only if such conventions, allocations or amendments would not have a material adverse effect on the Shareholders, the holders of any class or classes of Shares issued and Outstanding or the Trust, and if such allocations are consistent with the principles of Section 704 of the Code.

 

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(d) All items of income, gain, loss, deduction and credit recognized by the Trust for federal income tax purposes and allocated to the Shareholders in accordance with the provisions hereof shall be determined without regard to any election under Section 754 of the Code that may be made by the Trust; provided, however, that such allocations, once made, shall be adjusted (in the manner determined by the Sponsor) to take into account those adjustments permitted or required by Sections 734 and 743 of the Code.

(e) In the event the Trust becomes listed on a Exchange or other major exchange, unless the Sponsor determines otherwise, each item of Trust income, gain, loss and deduction shall, for federal income tax purposes, be determined on an annual basis and prorated on a monthly basis and shall be allocated to the Shareholders as of the opening of such Exchange on the first business day of each month; provided, however, such items for the period beginning on the closing date and ending on the last day of the month in which the option closing date or the expiration of the over-allotment option occurs shall be allocated to the Shareholders as of the opening of such Exchange on the first Business Day of the next succeeding month; and provided, further, that gain or loss on a sale or other disposition of any assets of the Trust or any other extraordinary item of income or loss realized and recognized other than in the ordinary course of business, as determined by the Sponsor, shall be allocated to the Shareholders as of the opening of Exchange on the first business day of the month in which such gain or loss is recognized for federal income tax purposes. The Sponsor may revise, alter or otherwise modify such methods of allocation to the extent permitted or required by Section 706 of the Code and the regulations or rulings promulgated thereunder.

(f) Allocations that would otherwise be made to a Shareholder under the provisions of this Article IV shall instead be made to the beneficial owner of Shares held by a nominee in any case in which the nominee has furnished the identity of such owner to the Trust in accordance with Section 6031(c) of the Code or any other method determined by the Sponsor.

ARTICLE V

OFFICERS

Section 1. OFFICERS .

(a) The Sponsor may appoint officers, who shall be agents of the Trust with such titles and duties as the Sponsor shall specify. Any number of offices may be held by the same person.

(b) The appointment of officers of the Trust pursuant to that certain Appointment of Officers, dated as of July 9, 2008, by the Sponsor and the Trustee, is hereby ratified.

Section 2. APPOINTMENT OF OFFICERS . The officers of the Trust shall be appointed by the Sponsor, and each shall serve at the pleasure of the Sponsor, subject to the rights, if any, an officer may have under any contract of employment.

 

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Section 3. REMOVAL AND RESIGNATION OF OFFICERS . Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the Sponsor. Any officer may resign at any time by giving written notice to the Trust. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Trust under any contract to which the officer is a party.

Section 4. AUTHORITY TO ACT . Subject to the supervision and oversight of the Sponsor, the officers of the Trust are delegated the authority to act on behalf of the Trust consistent with the parameters and powers of their position as outlined from time to time by the Sponsor, including to prepare, negotiate, deliver and execute documents, agreements, plans, registration statements, any and all applications for exemptive orders, and any amendments or supplements thereto, that the officers or any of them believe, with advice of counsel, are necessary or desirable for the Trust.

ARTICLE VI

LIMITATION OF LIABILITY, FIDUCIARY DUTY AND INDEMNITY

Section 1. LIABILITY OF COVERED PERSONS . A Covered Person shall have no liability to the Trust, any Fund or to any Shareholder or Beneficial Owner or other Covered Person for any loss suffered by the Trust or any Fund which arises out of any action or inaction of such Covered Person if such Covered Person, in good faith, determined that such course of conduct was in the best interest of the Trust or the applicable Fund and such course of conduct did not constitute gross negligence or willful misconduct of such Covered Person. Subject to the foregoing, neither the Sponsor nor any other Covered Person shall be personally liable for the return or repayment of all or any portion of the capital or profits of any Shareholder or assignee thereof, it being expressly agreed that any such return of capital or profits made pursuant to this Trust Agreement shall be made solely from the assets of the applicable Fund without any rights of contribution from the Sponsor or any other Covered Person.

Section 2. FIDUCIARY DUTY OF COVERED PERSONS .

(a) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust, the Funds, the Shareholders or to any other Person, a Covered Person acting under this Trust Agreement shall not be liable to the Trust, the Funds, the Shareholders or to any other Person for its good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict or eliminate the duties (including fiduciary duties) and liabilities of a Covered Person otherwise existing at law or in equity are agreed by the parties hereto and the Shareholders to replace such other duties and liabilities of such Covered Person.

(b) Unless otherwise expressly provided herein:

(i) whenever a conflict of interest exists or arises between the Sponsor or any of its Affiliates, on the one hand, and the Trust, the Trustee or any Shareholder or any other Person, on the other hand; or

 

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(ii) whenever this Trust Agreement or any other agreement contemplated herein or therein provides that the Sponsor shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust, any Shareholder or any other Person,

the Sponsor shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Sponsor, the resolution, action or terms so made, taken or provided by the Sponsor shall not constitute a breach of this Trust Agreement or any other agreement contemplated herein or of any duty or obligation of the Sponsor at law or in equity or otherwise.

(c) The Sponsor and any Affiliate of the Sponsor may engage in or possess an interest in other profit-seeking or business ventures of any nature or description, independently or with others, whether or not such ventures are competitive with the Trust and the doctrine of corporate opportunity, or any analogous doctrine, shall not apply to the Sponsor. If the Sponsor acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for the Trust, it shall have no duty to communicate or offer such opportunity to the Trust, and the Sponsor shall not be liable to the Trust or to the Shareholders for breach of any fiduciary or other duty by reason of the fact that the Sponsor pursues or acquires for, or directs such opportunity to another Person or does not communicate such opportunity or information to the Trust. Neither the Trust nor any Shareholder shall have any rights or obligations by virtue of this Trust Agreement or the trust relationship created hereby in or to such independent ventures or the income or profits or losses derived therefrom, and the pursuit of such ventures, even if competitive with the activities of the Trust, shall not be deemed wrongful or improper. Except to the extent expressly provided herein, the Sponsor may engage or be interested in any financial or other transaction with the Trust, the Shareholders or any Affiliate of the Trust or the Shareholders.

Section 3. COMPENSATION TO THE SPONSOR . The Sponsor shall be entitled to compensation for its services as Sponsor of the Trust as set forth in the Sponsor Agreement.

Section 4. OTHER BUSINESS OF SHAREHOLDERS . Except as otherwise specifically provided herein, any of the Shareholders and any shareholder, officer, director, employee or other person holding a legal or beneficial interest in an entity which is a Shareholder, may engage in or possess an interest in other business ventures of every nature and description, independently or with others, and the pursuit of such ventures, even if competitive with the business of the Trust, shall not be deemed wrongful or improper.

Section 5. INDEMNIFICATION OF COVERED PERSONS .

(a) For the purpose of this Section, “Covered Person” includes any Person who is or was a Trustee, Sponsor or officer of the Trust.

 

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(b) The Trust (or, in furtherance on Article IV Section 4(b)(ii), any Fund separately to the extent the matter in question relates to a Fund or is otherwise disproportionate) shall indemnify and hold harmless each Covered Person against all claims, losses, liabilities and expenses, including but not limited to amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees reasonably incurred by any Covered Person, in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, before any court or administrative or legislative body, in which such Covered Person may be or may have been involved as a party or otherwise or with which such Covered Person may be or may have been threatened, while in office or thereafter, by reason of any alleged act or omission as a Covered Person or by reason of his or her being or having been such a Covered Person except with respect to any matter as to which such Covered Person shall have been finally adjudicated in any such action, suit or other proceeding not to have acted in good faith in the reasonable belief that such Covered Person’s action was in the best interests of the Trust and except that no Covered Person shall be indemnified against any liability to the Trust or its Shareholders by reason of willful misconduct or gross negligence of such Covered Person.

(c) Expenses, including counsel fees, so incurred by any such Covered Person (but excluding amounts paid in satisfaction of judgments, in compromise or as fines or penalties) shall be paid from time to time by the Trust in advance of the final disposition of any such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Covered Person to repay amounts so paid to the Trust if it is ultimately determined that indemnification of such expenses is not authorized under this Section.

Section 6. OTHER CONTRACTUAL RIGHTS . Nothing contained in Section 5 shall affect any right to indemnification to which persons other than Sponsor and officers of this Trust may be separately entitled by contract or otherwise.

ARTICLE VII

SHAREHOLDERS’ VOTING POWERS AND MEETINGS

Section 1. VOTING POWERS .

(a) Except as required under applicable Federal law or under the rules or regulations of an Exchange, the Shareholders shall have no voting rights hereunder (including with respect to mergers, consolidations or conversions of the Trust or transfers to or domestication in any jurisdiction by the Trust or any other matters that under the Delaware Trust Statute default voting rights are provided to holders of beneficial interests.) The Shareholders shall have the right to vote on other matters only as the Sponsor may consider desirable and so authorize in its sole discretion. To the extent that federal or Delaware law is amended, modified or interpreted by rule, regulation, order, or no-action letter to (on a mandatory basis) expand, eliminate or limit Shareholders’ right to vote on any specific matter, the Shareholders’ right to vote shall be deemed to be amended, modified or interpreted in accordance therewith without further approval by the Sponsor or the Shareholders.

(b) On each matter, if any, submitted to a vote of Shareholders, unless the Sponsor determines otherwise, all Shares of all Series and Classes shall vote together as a single class; provided, however, that: (i) as to any matter with respect to which a separate vote of any Series or Class is required by applicable law or is required by attributes applicable to any Series or Class, such requirements as to a separate vote by that Series or Class shall apply; (ii) unless

 

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the Sponsor determine that this clause (ii) shall not apply in a particular case, to the extent that a matter referred to in clause (i) above affects more than one Series or Class and the interests of each such Series or Class in the matter are identical, then the Shares of all such affected Series or Classes shall vote together as a single class; and (iii) as to any matter which does not affect the interests of a particular Series or Class, only the holders of Shares of the one or more affected Series or Classes shall be entitled to vote. As determined by the Sponsor, in its sole discretion, without the vote or consent of Shareholders, on any matter submitted to a vote of Shareholders either (i) each whole Share shall be entitled to one vote as to any matter on which it is entitled to vote and each fractional Share shall be entitled to a proportionate fractional vote or (ii) each dollar of Net Asset Value (number of Shares owned times Net Asset Value per share of the Trust, if no Series shall have been established or of such Series or Class, as applicable) shall be entitled to one vote on any matter on which such Shares are entitled to vote and each fractional dollar amount shall be entitled to a proportionate fractional vote. Without limiting the power of the Trustees in any way to designate otherwise in accordance with the preceding sentence, the Sponsor hereby establishes that each whole Share shall be entitled to one vote as to any matter on which it is entitled to vote and each fractional Share shall be entitled to a proportionate fractional vote. Shares may be voted in person or by proxy or in any manner determined by the Sponsor.

Section 2. VOTING POWER AND MEETINGS . Meetings of the Shareholders may be called by the Sponsor for such purposes as may be prescribed by law or by this Trust Agreement.

Section 3. PLACE OF MEETINGS . A meeting of Shareholders shall be held at any place designated by the Sponsor or an officer of the Trust.

Section 4. NOTICE OF SHAREHOLDERS’ MEETING . All notices of meetings of Shareholders shall be sent or otherwise given to each Shareholder of record not less than seven nor more than one hundred and twenty days before the date of the meeting in the manner determined by the Sponsor. The notice shall specify: (a) the place, date and hour of the meeting; and (b) the general nature of the business to be transacted.

Section 5. ADJOURNED MEETING; NOTICE . Any Shareholders’ meeting, whether or not a quorum is present, may be adjourned from time to time by the Sponsor or by the vote of a majority of the Shares of the Class, Series or Trust, as the case may be, represented at that meeting, either in person or by proxy. When any meeting of Shareholders is adjourned to another time or place, notice need not be given of the adjourned meeting at which the adjournment is taken, unless a new record date of the adjourned meeting is fixed or unless the adjournment is for more than sixty days from the date set for the original meeting, in which case the Sponsor shall set a new record date. Notice of any such adjourned meeting shall be given to each Shareholder of record entitled to vote at the adjourned meeting. At any adjourned meeting, the Trust may transact any business which might have been transacted at the original meeting.

Section 6. VOTING PROCEDURE . The Trust shall be authorized to solicit, and a Shareholder shall be entitled to submit a proxy ballot containing the voting instructions of such Shareholder, in person, or by U.S. mail, overnight mail, express mail, telephone, electronic mail, telefacsimile, telegraph, internet or other electronic media, provided however, that the Sponsor or

 

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an officer of the Trust may limit or delineate the types of media and methods by which a Shareholder may submit voting instructions. On any matter any Shareholder may vote part of the shares in favor of the proposal and refrain from voting the remaining shares or vote them against the proposal, but if the Shareholder fails to specify the number of shares which the Shareholder is voting affirmatively, it will be conclusively presumed that the Shareholder’s approving vote is with respect to the total shares that the Shareholder is entitled to vote on such proposal.

Section 7. QUORUM AND REQUIRED VOTE . Except when a larger quorum is required by applicable law or by this Trust Agreement, the presence (in person or by ballot) of thirty-three and one-third percent (33 1/3%) of the Shares entitled to vote shall constitute a quorum at a Shareholders’ meeting. When any one or more Series or Classes is to vote as a single Class separate from any other Shares, thirty-three and one-third percent (33 1/3%) of the Shares of each such Series or Classes entitled to vote shall constitute a quorum at a Shareholder’s meeting of that Series or Class. Any meeting of Shareholders may be adjourned consistent with the provisions of Section 5 above, whether or not a quorum is present. When a quorum is present at any meeting, a majority of the Shares represented at the meeting shall decide any questions except when a different vote is required by any provision of this Trust Agreement or by applicable law.

Section 8. ACTION BY WRITTEN CONSENT . Any action taken by Shareholders may be taken without a meeting if Shareholders holding a majority of the Shares entitled to vote on the matter (or such larger proportion thereof as shall be required by any express provision of this Trust Agreement or federal law) or holding a majority (or such larger proportion as aforesaid) of the Shares of any Series or Class entitled to vote separately on the matter consent to the action in writing or by other electronic means (such as via telephone or the internet) and such written consent or a record of such electronic consent is filed with the records of the meetings of Shareholders. Such consent shall be treated for all purposes as a vote taken at a meeting of Shareholders.

Section 9. RECORD DATES . For the purpose of determining the Shareholders of any Series or Class who are entitled to vote or act at any meeting or any adjournment thereof, the Sponsor may from time to time fix a date, which shall be not more than one-hundred and twenty days before the date of any meeting of Shareholders, as the record date for determining the Shareholders of such Series or Class having the right to notice of and to vote at such meeting and any adjournment thereof, and in such case only Shareholders of record on such record date shall have such right, notwithstanding any transfer of shares on the books of the Trust after the record date. For the purpose of determining the Shareholders of any Series or Class who are entitled to receive payment of any dividend or of any other distribution, the Sponsor may from time to time fix a date, which shall be before the date for the payment of such dividend or such other payment, as the record date for determining the Shareholders of such Series or Class having the right to receive such dividend or distribution. Without fixing a record date the Sponsor may for voting and/or distribution purposes close the register or transfer books for one or more Series for all or any part of the period between a record date and a meeting of Shareholders or the payment of a distribution. Nothing in this Section shall be construed as precluding the Sponsor from setting different record dates for different Series or Classes.

 

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Section 10. WAIVER OF NOTICE BY CONSENT OF ABSENT SHAREHOLDERS . Any Shareholder may waive notice, which waiver may be submitted by U.S. mail, overnight mail, express mail, telephone, electronic mail, telefacsimile, telegraph, internet or other electronic media. The waiver of notice need not specify either the business to be transacted or the purpose of any meeting of Shareholders. Attendance by a person at a meeting shall also constitute a waiver of notice of that meeting, except when the person objects at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters not included in the notice of the meeting if that objection is expressly made at the beginning of the meeting.

Section 11. PROXIES . Every person entitled to vote on any matter shall have the right to do so either in person or by one or more agents authorized by a written or electronic proxy authorized by the person and filed with the Sponsor. A proxy shall be deemed authorized if the Shareholder’s name is placed on the proxy (whether by manual signature, typewriting, telephonic or internet transmission or otherwise) by the Shareholder or the Shareholder’s attorney-in-fact. A validly authorized proxy which does not state that it is irrevocable shall continue in full force and effect unless (i) revoked by the person executing it before the vote pursuant to that proxy by a writing delivered to the Trust stating that the proxy is revoked or by a subsequent proxy executed by, or attendance at the meeting and voting in person by, the person executing that proxy; or (ii) written notice of the death or incapacity of the maker of that proxy is received by the Trust before the vote pursuant to that proxy is counted; provided however, that no proxy shall be valid after the expiration of eleven months from the date of the proxy unless otherwise provided in the proxy.

ARTICLE VIII

RECORDS AND REPORTS

Section 1. MAINTENANCE OF SHARE REGISTER . The Trust shall keep at its principal office or at the office of its transfer agent or registrar, if either be appointed and as determined by the Sponsor, a record of its Shareholders, containing the names and addresses of all Shareholders and the number and series of shares held by each Shareholder.

Section 2. MAINTENANCE OF OTHER RECORDS . The accounting books and records and minutes of proceedings of the Shareholders and the Sponsor shall be kept at such place or places designated by the Sponsor or in the absence of such designation, at the principal office of the Trust. The minutes shall be kept in written form and the accounting books and records shall be kept either in written form or in any other form capable of being converted into written form.

ARTICLE IX

REDEMPTIONS

Section 1. REDEMPTION OF CREATION UNITS .

(a) Subject to the Sponsor establishing alternative procedures from time to time in its sole discretion, the procedures relating to the redemption of Creation Units are fully

 

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set forth in Authorized Participant Agreement and Authorized Participant Handbook for each Fund (which may be amended from time to time in accordance with the provisions of the Participant Agreement and any such amendment will not constitute an amendment of this Trust Agreement), and will govern the Trust with respect to redemption of Creation Units.

(b) Subject to deduction of any tax or other governmental charges due thereon, and subject to the Sponsor’s establishment of alternative procedures the redemption distribution shall consist of cash or other assets to the extent permitted in the Registration Statement or an Authorized Participant Agreement in an amount equal to the Net Asset Value per Creation Unit of a Fund multiplied by the number of Creation Unit(s) of such Fund requested in the Authorized Participant’s redemption order as of the time of the calculation of such Fund’s Net Asset Value per Share on the redemption order date.

(c) The Sponsor may, in its sole discretion, suspend the right of redemption, or postpone any redemption settlement date.

ARTICLE X

MISCELLANEOUS

Section 1. TERMINATION OF TRUST, SERIES OR CLASS .

(a) Unless terminated as provided herein, the Trust, and any Series or Class thereof, shall continue without limitation of time. The Trust, or any Series or Class thereof, may be dissolved at any time and for any reason by the Sponsor with written notice to the Shareholders.

(b) Upon dissolution of the Trust (or any Series or Class, as the case may be), after paying or making reasonable provision for all charges, taxes, expenses, claims and liabilities of the Trust, or severally, with respect to each Series or Class (or the applicable Series or Class, as the case may be), whether due or accrued or anticipated as may be determined by the Sponsor and otherwise complying with Section 3808 of the Delaware Trust Statute, the Trust shall, in accordance with the Delaware Trust Statute and such procedures as the Sponsor considers appropriate, distribute the remaining assets in kind or reduce the remaining assets held, severally, with respect to each Series or Class (or the applicable Series or Class, as the case may be), to distributable form in cash or shares or other securities, or any combination thereof, and distribute the proceeds held with respect to each Series or Class (or the applicable Series or Class, as the case may be), to the Shareholders of that Series or Class, as a Series or Class, ratably according to the number of Shares of that Series or Class held by the several Shareholders on the date of termination.

(c) Upon the completion of the winding up of the Trust in accordance with the Delaware Trust Statute and this Trust Agreement, the Sponsor shall cause the Trustee to file a certificate of cancellation with the Secretary of State of the State of Delaware in accordance with the provisions of Section 3810 of the Delaware Act and thereupon, the Trust and this Trust Agreement (other than Article VI Section 6) shall terminate. The provisions of Article VI Section 6 shall survive the termination of the Trust.

 

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Section 2. MERGER AND CONSOLIDATION . The Sponsor may cause (i) the Trust to be merged into or consolidated with, converted to or to sell all or substantially all of its assets to, another trust or entity; (ii) a Series of the Trust to be consolidated with, or to sell all or substantially all of its assets to, another Series of the Trust or another series of another trust or company; (iii) the Shares of a Class of a Series to be converted into another Class of the same Series; (iv) the Shares of the Trust or any Series to be converted into beneficial interests in another statutory trust (or series thereof); or (v) the Shares of the Trust or any Series to be exchanged for shares in another trust or company under or pursuant to any state or federal statute to the extent permitted by law.

For the avoidance of doubt, the Sponsor, with written notice to the Shareholders, may approve and effect any of the transactions contemplated under (i) – (v) above without any vote or other action of the Shareholders.

Section 3. FILING OF COPIES, REFERENCES AND HEADINGS . The original or a copy of this Trust Agreement and of each restatement and/or amendment hereto shall be kept at the office of the Trust where it may be inspected by any Shareholder. Anyone dealing with the Trust may rely on a certificate by an officer of the Trust as to whether or not any such restatements and/or amendments have been made and as to any matters in connection with the Trust hereunder; and, with the same effect as if it were the original, may rely on a copy certified by an officer of the Trust to be a copy of this instrument or of any such restatements and/or amendments. In this instrument and in any such restatements and/or amendment, references to this Trust Agreement, and all expressions like “herein”, “hereof” and “hereunder”, shall be deemed to refer to this instrument as amended or affected by any such restatements and/or amendments. Headings are placed herein for convenience of reference only and shall not be taken as a part hereof or control or affect the meaning, construction or effect of this instrument. Whenever the singular number is used herein, the same shall include the plural; and the neuter, masculine and feminine genders shall include each other, as applicable. This Trust Agreement may be executed in any number of counterparts each of which shall be deemed an original.

Section 4. APPLICABLE LAW . This Trust Agreement is created under and is to be governed by and construed and administered according to the laws of the State of Delaware and the Delaware Statutory Trust Act, 12 Del. C. § 3801 et. seq. , as amended from time to time (the “Delaware Act”). The Trust shall be a Delaware statutory trust created pursuant to the Delaware Trust Statute, and without limiting the provisions hereof, the Trust may exercise all powers which are ordinarily exercised by such a statutory trust.

Section 5. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS .

(a) The provisions of this Trust Agreement are severable, and if the Sponsor determines, with the advice of counsel, that any of such provisions are in conflict with any other applicable laws and regulations, the conflicting provision(s) shall be deemed never to have constituted a part of the Trust Agreement; provided, however, that such determination shall not affect any of the remaining provisions of the Trust Agreement or render invalid any action taken or omitted prior to such determination.

 

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(b) If any provision of the Trust Agreement shall be held invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall attach only to such provision in such jurisdiction and shall not in any manner affect such provision in any other jurisdiction or any other provision of the Trust Agreement in any jurisdiction.

Section 6. STATUTORY TRUST ONLY . It is the intention of the parties hereto to create a statutory trust pursuant to the Delaware Trust Statute. It is not the intention of the parties hereto to create a general partnership, limited partnership, joint stock association, corporation, bailment, or any form of legal relationship other than a statutory trust pursuant to the Delaware Trust Statute. Nothing in this Trust Agreement shall be construed to make the Shareholders, either by themselves or with the Trustee and the Sponsor, partners or members of a joint stock association.

Section 7. CONTRACTS AND INSTRUMENTS; HOW EXECUTED . The Sponsor may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Trust and this authority may be general or confined to specific instances; and unless so authorized or ratified by the Sponsor or within the agency power of an officer, no officer, agent, or employee shall have any power or authority to bind the Trust by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.

Section 8. FISCAL YEAR . The fiscal year of the Trust and of each Series shall be fixed and refixed or changed from time to time by resolution of the Sponsor.

Section 9. COUNTERPARTS . The Trust Agreement may be simultaneously executed in several counterparts, each of which shall be deemed to be an original, and such counterparts, together, shall constitute one and the same instrument, which shall be sufficiently evidenced by any such original counterpart.

ARTICLE XI

AMENDMENT

Section 1. AMENDMENT . This Trust Agreement may be amended without Shareholder approval, and all Shareholders purchase Shares with notice that it may be so amended except to the extent expressly required under Delaware or applicable federal law. The Sponsor may, without any Shareholder vote, amend or otherwise supplement this Trust Agreement by making an amendment, a trust instrument supplemental hereto or an amended and restated Trust Agreement; provided, that Shareholders shall have the right to vote on any amendment if expressly required under Delaware or federal law or rules or regulations under an Exchange, or submitted to them by the Sponsor in its sole discretion; and provided, further, that no amendment affecting the rights or duties of the Trustee shall be binding upon or effective against the Trustee unless consented to by the Trustee in writing.

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties hereto do hereby make and enter into this Amended and Restated Trust Agreement as of the date first-above written.

 

PROSHARE CAPITAL MANAGEMENT, LLC

as Sponsor

By:    
  Name:
  Title:

WILMINGTON TRUST COMPANY,

as Trustee

By:    
  Name:
  Title:

 

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Exhibit 4.3

FORM OF

PROSHARES TRUST II

AUTHORIZED PARTICIPANT AGREEMENT

This Authorized Participant Agreement (the “Agreement”), dated as of                          , is entered into by and among                      (the “Authorized Participant”), ProShares Trust II, a Delaware statutory trust (the “Trust”), and ProShare Capital Management LLC, a Maryland limited liability company, as sponsor of the Trust (the “Sponsor”).

SUMMARY

As provided in the Trust Agreement of the Trust, as amended (the “Trust Agreement”) as currently in effect and described in the Prospectus (defined below), units of fractional undivided beneficial interest in and ownership of the Trust (the “Shares”) may be created or redeemed by the Sponsor for an Authorized Participant in aggregations of fifty thousand (50,000) Shares (each aggregation, a “Creation Unit”). Creation Units are offered only pursuant to a registration statement of the Trust on Form S-1, as amended (Registration No.: 333-146801), as declared effective by the Securities and Exchange Commission (“SEC”) and as the same may be amended from time to time thereafter or any successor registration statement in respect of Shares of the Trust (collectively, the “Registration Statement”) together with the prospectus of the Trust (the “Prospectus”) included therein. Under the Trust Agreement, the Sponsor is authorized to issue Creation Units to, and redeem Creation Units from, authorized participants, only through the facilities of the Depository Trust Company (“DTC”), or a successor depository, and only in exchange for cash. This Agreement and the Procedures (defined below) set forth the specific procedures by which the Authorized Participant may create or redeem Creation Units.

Because new Shares can be created and issued on an ongoing basis, at any point during the valid existence of the Trust, a “distribution,” as such term is used in the Securities Act of 1933, as amended (“1933 Act”), may be occurring. The Authorized Participant is cautioned that some of its activities may result in its being deemed a participant in a distribution in a manner which would render it a statutory underwriter and subject it to the prospectus-delivery and liability provisions of the 1933 Act. The Authorized Participant should review the “Plan of Distribution” portion of the Prospectus and consult with its own counsel in connection with entering into this Agreement and submitting Orders (defined below).

Capitalized terms used but not defined in this Agreement shall have the meanings assigned to such terms in the Trust Agreement or Authorized Participant Procedures Handbook set forth in Attachment A hereto (the “Procedures”). To the extent there is a conflict between any provision of this Agreement and the provisions of the Trust Agreement or Procedures, the provisions of the Trust Agreement shall control.

To give effect to the foregoing premises and in consideration of the mutual covenants and agreements set forth below, the parties hereto agree as follows:

Section 1. Order Placement . To place orders for the Sponsor (or its agent) to create or redeem one or more Creation Units, the Authorized Participant must follow the procedures for creation and redemption referred to in Section 3 of this Agreement and the Procedures described in Attachment A, as each may be amended, modified or supplemented from time to time.

Section 2. Status, Representations and Warranties of the Parties .

(a) The Authorized Participant represents and warrants and covenants the following:

(i) The Authorized Participant is a participant of DTC (as such a participant, a “DTC Participant”). If the Authorized Participant ceases to be a DTC Participant, the Authorized Participant shall give prompt notice to the Sponsor of such event, and this Agreement shall terminate immediately as of the date the Authorized Participant ceased to be a DTC Participant.

 

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(ii) Unless Section 2(a)(iii) applies, the Authorized Participant either (i) is registered as a broker-dealer under the Securities Exchange Act of 1934, as amended (“1934 Act”), and is a member in good standing of the Financial Industry Regulatory Authority (the “FINRA”), or (ii) is exempt from being, or otherwise is not required to be, licensed as a broker-dealer or a member of FINRA, and in either case is qualified to act as a broker or dealer in the states or other jurisdictions where the nature of its business so requires. In connection with the purchase or redemption of Creation Units and any related offers or sales of Shares, the Authorized Participant will maintain any such registrations, qualifications and membership in good standing and in full force and effect throughout the term of this Agreement. The Authorized Participant will comply with all applicable federal laws, the laws of the states or other jurisdictions concerned, and the rules and regulations promulgated thereunder, and with the FINRA By-Laws and NASD Conduct Rules (or of comparable FINRA Conduct Rules, if such NASD Conduct Rules are subsequently renamed, repealed, rescinded, or are otherwise replaced by FINRA Conduct Rules) if it is a FINRA member, and will not offer or sell Shares in any state or jurisdiction where they may not lawfully be offered and/or sold.

(iii) If the Authorized Participant is offering or selling Shares in jurisdictions outside the several states, territories and possessions of the United States and is not otherwise required to be registered, qualified or a member of FINRA as set forth in Section 2(a)(ii) above, the Authorized Participant will, in connection with such offers and sales, (i) observe the applicable laws of the jurisdiction in which such offer and/or sale is made, (ii) comply with the prospectus delivery and other requirements of the 1933 Act, and the regulations promulgated thereunder, and (iii) conduct its business in accordance with the NASD Conduct Rules (or with comparable FINRA Conduct Rules, if such NASD Conduct Rules are subsequently renamed, repealed, rescinded, or are otherwise replaced by FINRA Conduct Rules), to the extent the foregoing relates to the Authorized Participant’s transactions in, and activities with respect to, Shares.

(iv) The Authorized Participant has policies, procedures, and internal controls in place that are reasonably designed to comply with applicable anti-money laundering laws and regulations, including applicable provisions of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “USA PATRIOT Act”), and the regulations promulgated thereunder, if the Authorized Participant is subject to the requirements of the USA PATRIOT Act.

(v) The Authorized Participant acknowledges that in addition to satisfying the prospectus delivery and disclosure requirements of the 1933 Act, it and any other participant in the distribution of the Shares purchased by the Authorized Participant may have an obligation to comply with the disclosure delivery requirements under the Commodity Exchange Act (the “CEA”). The Sponsor agrees that if it becomes aware of any new delivery or disclosure requirement under the 1933 Act or the CEA relating to Shares, other than the current obligation to deliver the Prospectus, it shall use reasonable efforts to advise the Authorized Participant of such requirement(s).

(vi) The Authorized Participant agrees not to enforce against the Trust and Sponsor any patent rights with respect to the business of the Trust. For avoidance of doubt, this provision will only be effective during time periods in which the Agreement is in effect and shall not survive termination thereof.

(b) The Sponsor represents and warrants that on the date hereof and at each time of purchase by the Authorized Participant of a Creation Unit from the Trust (each such time, the “Time of Purchase”), that:

(i) on the effective date of the Registration Statement and at each Time of Purchase, the Trust’s Registration Statement shall be effective and no stop order of the SEC with respect thereto shall have been issued and no proceedings for such purpose shall have been instituted or, to the Sponsor’s knowledge, will then be contemplated by the SEC; the Registration Statement complied when it became effective and complies at the Time of Purchase in all material respects with the requirements of the 1933 Act, and the Prospectus complied as of its date, and complies at the Time of Purchase, in all material respects with the requirements of the 1933 Act; and the conditions to the use of Form S-1 have been satisfied; the Registration Statement did not when it became

 

2


effective and does not at the Time of Purchase contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, the Prospectus did not, as of its date and does not at the Time of Purchase, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and, the documents comprising the Disclosure Package (as defined below) did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Sponsor makes no warranty or representation with respect to any statement contained in the Registration Statement, the Prospectus or the Disclosure Package in reliance upon and in conformity with information concerning the Authorized Participant and furnished in writing by or on behalf of the Authorized Participant to the Sponsor expressly for use therein. The “ Disclosure Package ” is the Prospectus and any amendments and supplements thereto at the Time of Purchase and any free writing prospectus as defined in Rule 405 of the 1933 Act (a “ FWP ”) prepared by, for or on behalf of the Sponsor before the Time of Purchase and intended for general distribution;

(ii) the Shares, when issued and delivered against payment of consideration therefor, as provided in this Agreement, will be duly and validly authorized, issued, fully paid and non-assessable and free of statutory and contractual preemptive rights, rights of first refusal and similar rights;

(iii) the Sponsor has been duly organized and, on the effective date of the Registration Statement and at each Time of Purchase, will be validly existing as a limited liability company in good standing under the laws of the State of Maryland, with full power and authority to act as the sponsor of the Trust as described in the Registration Statement and the Prospectus, and has all requisite power and authority to execute and deliver this Agreement;

(iv) at the time the Sponsor makes an offer of Shares following the filing of the Registration Statement, neither the Trust nor the Sponsor will be an “ineligible issuer” as defined in Rule 405 of the 1933 Act; and

(v) the Sponsor shall provide to the Authorized Participant copies of the then current Prospectus and any printed supplemental information in reasonable quantities upon request, the Sponsor will promptly notify the Authorized Participant when a revised, supplemented or amended Prospectus is available, the Sponsor will deliver or otherwise make available to the Authorized Participant copies of such revised, supplemented or amended Prospectus at such time and in such numbers as to enable the Authorized Participant to comply with any obligation the Authorized Participant may have to deliver such Prospectus to customers or in response to the Authorized Participant’s reasonable request, the Sponsor will make such revised, supplemented or amended Prospectus available to the Authorized Participant no later than the effective date thereof, and the Sponsor will be deemed to have complied with this paragraph when the Authorized Participant has received such revised, supplemented or amended Prospectus at the address indicated below the signature line of the Authorized Participant in such number of hard copies as to enable the Authorized Participant to comply with any obligation it may have to deliver such Prospectus to customers or as it may have reasonably requested.

(c) The Sponsor, on its own behalf and in its capacity as sponsor of the Trust, agrees:

(i) to endeavor, upon receipt of request from the Authorized Participant therefore, to file a post-effective amendment to the Registration Statement removing any reference to the Authorized Participant thereunder; and

(ii) to advise the Authorized Participant promptly, confirming such advice in writing, of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or of

 

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notice of institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement, and, if the SEC should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; and

Section 3. Orders .

(a) All orders to create or redeem Creation Units shall be made in accordance with the terms of the Trust Agreement, this Agreement and the Procedures. Each party will comply with such foregoing terms and procedures to the extent applicable to it. The Authorized Participant hereby consents to the use of recorded telephone lines whether or not such use is reflected in the Procedures. The Sponsor may issue, or caused to be issued, additional or other procedures from time to time relating to the manner of creating or redeeming Creation Units which are not related to the Procedures, and the Authorized Participant will comply with such procedures. of which it has received notice delivered in accordance with Section 16(c) within a commercially reasonable time following receipt of such notice.

(b) The Authorized Participant acknowledges and agrees that each order to create a Creation Unit (a “Purchase Order”) and each order to redeem a Creation Unit (a “Redemption Order”, and each Purchase Order and Redemption Order, an “Order”) may not be revoked by the Authorized Participant upon its delivery of the Order to the Sponsor, or the Sponsor’s designee.

(c) The Sponsor, or its designee, shall have the absolute right, but shall have no obligation, to reject any Purchase Order (i) determined by the Sponsor, or its designee, not to be in proper form; (ii) that the Sponsor, or its designee, has determined would have adverse tax consequences to the Trust or to the Beneficial Owners; (iii) the acceptance or receipt of which could, in the opinion of counsel to the Sponsor be unlawful; or (iv) if circumstances outside the control of the Sponsor, or its designee, make it for all practical purposes not feasible to process creations of Creation Units. The Sponsor shall not be liable to any person by reason of the rejection of any Purchase Order.

(d) The Sponsor, or its designee, shall reject any Redemption Order the fulfillment of which its counsel advises would be illegal under applicable laws and regulations, and the Sponsor, or its designee, shall have no liability to any person for rejecting a Redemption Order in such circumstances.

(e) The Sponsor may, in its discretion, suspend the right of redemption, or postpone the applicable Redemption Settlement Time, for any period during which any of the AMEX, NYSE, CME, CBOT, ICE/NYBOT, LME or NYMEX/COMEX is closed other than for customary holidays or weekend closings or when trading is suspended or restricted on such exchanges in any of the underlying commodities: (i) for any period during which an emergency exists as a result of which the redemption distribution is not reasonably practicable; or (ii) for such other period as the Sponsor determines to be necessary for the protection of the shareholders. The Sponsor will not be liable to any person or in any way for any loss or damages that may result from any such suspension or postponement.

(f) The Authorized Participant hereby consents to the use of recorded telephone lines whether or not such use is reflected in the Procedures. In the event that the Sponsor, the Trust, or any of their affiliated persons becomes legally compelled to disclose to any third party any recording involving communications with the Authorized Participant, the Sponsor agrees to provide the Authorized Participant with reasonable advance written notice identifying the recordings to be so disclosed, together with copies of such recordings, so that the Authorized Participant may seek a protective order or other appropriate remedy with respect to the recordings or waive its right to do so. In the event that such protective order or other remedy is not obtained, or the Participant waives its right to seek such protective order or remedy, the Sponsor, the Trust, or any of their affiliated persons, as the case may be, agrees to furnish only that portion of the recorded conversation that, according to legal counsel, is legally required to be furnished and will exercise its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the recorded conversation. The Sponsor, the Trust, and their affiliated persons shall not otherwise disclose to any third party any recording involving communications with the Authorized Participant without the Authorized Participant’s express written consent, except the Sponsor and the Trust may disclose to a regulatory or self-regulatory organization, to the extent required by applicable rule or law, recordings involving communications with the Authorized Participant.

 

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Section 4. Fees . To compensate Brown Brothers Harriman & Co. for services as Administrator in processing the creation and redemption of Creation Units and to reimburse the Trust for transaction-related expenses, an Authorized Participant is required to pay a fixed transaction fee of $500 per order to create or redeem Creation Units and a variable transaction fee of up to 0.10% of the value of a Creation Unit. An order may include multiple Creation Units. The transaction fee may be waived or otherwise adjusted by the Sponsor and the Sponsor agrees to provide the Authorized Participant with prompt notice in advance of any such waiver or adjustment of the transaction fee.

Section 5. Authorized Persons . Concurrently with the execution of this Agreement and as requested in writing from time to time thereafter, the Authorized Participant shall deliver to the Sponsor, or its designee, a certificate, duly certified as appropriate by its secretary or other duly authorized official, in the form of Exhibit A, setting forth the names and signatures of all persons authorized to give instructions relating to activity contemplated hereby or by any other notice, request or instruction given on behalf of the Authorized Participant (each, an “Authorized Person”). The Sponsor may accept and rely upon such certificate as conclusive evidence of the facts set forth therein and shall consider such certificate to be in full force and effect until the Sponsor, or its designee, receives a superseding certificate bearing a subsequent date and duly certified as described above. Upon the termination or revocation of authority of any Authorized Person by the Authorized Participant, the Authorized Participant shall give prompt written notice of such fact to the Sponsor and such notice shall be effective upon receipt by the Sponsor. The Sponsor shall issue, or caused to be issued, to each Authorized Person a unique personal identification number (the “PIN Number”) by which such Authorized Person shall be identified and by which instructions issued by the Authorized Participant hereunder shall be authenticated. The PIN Number shall be kept confidential by the Authorized Participant and shall only be provided to the Authorized Person. If, after issuance, the Authorized Person’s PIN Number is changed, the new PIN Number shall become effective on a date mutually agreed upon by the Authorized Participant and the Sponsor.

Section 6. Redemption . The Authorized Participant represents and warrants that it will not initiate a Redemption Order (as described in the Procedures) with the Sponsor for the purpose of redeeming a Creation Unit unless (i) it owns outright or has the right or authority to tender for redemption the Creation Units to be redeemed and to receive the entire proceeds of the redemption, and (ii) such Creation Units have not been loaned or pledged to another party and are not the subject of a repurchase agreement, securities lending agreement or any other arrangement which, under the circumstances, would preclude the delivery of such Creation Units to the Sponsor on the third Business Day following the Redemption Order Date. A “Business Day” means any day other than a day when any of American Stock Exchange, the New York Stock Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade, IntercontinentalExchange/New York Board of Trade, the London Metal Exchange or the New York Mercantile Exchange is closed for regular trading.

Section 7. Role of Authorized Participant .

(a) The Authorized Participant acknowledges that, for all purposes of this Agreement and the Trust Agreement, the Authorized Participant shall have no authority to act as agent for the Trust or the Sponsor in any matter or in any respect.

(b) The Authorized Participant will make itself and its employees available, upon reasonable request, during normal business hours to consult with the Sponsor or its designees concerning the performance of the Authorized Participant’s responsibilities under this Agreement.

(c) The Authorized Participant, as a DTC Participant, agrees that it shall be bound by all of the obligations of a DTC Participant in addition to any obligations that it undertakes hereunder or in accordance with the Prospectus.

(d) The Authorized Participant agrees, subject to any privacy, confidentiality or other obligations it may have to its customers arising under federal or state securities laws or the applicable rules of any self-regulatory organization, to assist the Sponsor in ascertaining certain information regarding sales of Shares made by or through the Authorized Participant upon request of the Trust or the Sponsor that is necessary for

 

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the Trust to comply with its obligations to distribute information to its shareholders under applicable state or federal securities laws; provided that consistent with market practice, the Authorized Participant may undertake to deliver prospectuses, proxy material, annual and other reports of the Trust or other similar information that the Trust is obligated to deliver to its shareholders to the Authorized Participant’s customers that custody Shares with the Authorized Participant, after receipt from the Trust or the Sponsor of sufficient quantities to allow mailing thereof to such customers. The Sponsor agrees that the names and addresses and other information concerning the Authorized Participant’s customers are and shall remain the sole property of the Authorized Participant, and none of the Sponsor, the Trust or any of their respective affiliates shall use such names, addresses or other information for any purposes except in connection with the performance of their duties and responsibilities hereunder and except for servicing and informational mailings related to the Trust referred to in this Section 7(d) of this Agreement.

Section 8. Indemnification .

(a) The Authorized Participant hereby indemnifies and holds harmless the Sponsor, its respective direct or indirect affiliates (as defined below) and its respective directors, sponsors, partners, members, managers, officers, employees and agents (each, an “AP Indemnified Party”) from and against any losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees and the reasonable cost of investigation) incurred by such AP Indemnified Party as a result of: (i) any breach by the Authorized Participant of any provisions of this Agreement that relates to the Authorized Participant, including its representations, warranties and covenants; (ii) any failure on the part of the Authorized Participant to perform any of its obligations set forth in this Agreement; (iii) any failure by the Authorized Participant to comply with applicable laws and rules and regulations of self-regulatory organizations to the extent the foregoing relates to the Authorized Participant’s transactions in, and activities with respect to, Shares under this Agreement, except that the Authorized Participant shall not be required to indemnify an AP Indemnified Party to the extent that such failure was caused by the Authorized Participant’s adherence to instructions given or representations made by the Sponsor or any AP Indemnified Party, as applicable; (iv) any actions of such AP Indemnified Party in reasonable reliance upon any instructions issued by the Authorized Participant in accordance with the Procedures believed by the AP Indemnified Party to be genuine and to have been given by the Authorized Participant, except to the extent that the Authorized Participant had previously revoked a PIN Number used in giving such instructions or representations (where applicable) and such revocation was given by the Authorized Participant and received by the Trust in accordance with the terms of Section 5 hereto; or (v) (A) any representation by the Authorized Participant, its employees or its agents or other representatives about the Shares, any AP Indemnified Party or the Trust that is not consistent with the Trust’s then-current Prospectus made in connection with the offer or the solicitation of an offer to buy or sell Shares and (B) any untrue statement or alleged untrue statement of a material fact contained in any research reports, marketing material and sales literature described in Section 12(b) or any alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein when read together with the Prospectus, in light of the circumstances under which they were made, not misleading to the extent that such statement or omission relates to the Shares or any AP Indemnified Party, unless, in either case, such representation, statement or omission was made or included by the Authorized Participant at the written direction of the Sponsor or is based upon any omission or alleged omission by the Sponsor to state a material fact in connection with such representation, statement or omission necessary to make such representation, statement or omission not misleading. The Authorized Participant shall not be liable under its indemnity agreement contained in this paragraph with respect to any claim made against any AP Indemnified Party unless the AP Indemnified Party shall have notified the Authorized Participant in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the AP Indemnified Party (or after the AP Indemnified Party shall have received notice of service on any designated agent). However, failure to notify the Authorized Participant of any claim shall not relieve the Authorized Participant from any liability which it may have to any AP Indemnified Party against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph and shall only release it from such liability under this paragraph to the extent it has been materially prejudiced by such failure to give notice. The Authorized Participant shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Authorized Participant elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the AP Indemnified Party in the suit, and who shall not,

 

6


except with the consent of the AP Indemnified Parties, be counsel to the Authorized Participant. If the Authorized Participant does not elect to assume the defense of any suit, it will reimburse the AP Indemnified Party for the reasonable fees and expenses of any counsel retained by them.

(b) The Sponsor hereby agrees to indemnify and hold harmless the Authorized Participant, its respective subsidiaries, affiliates, directors, officers, employees and agents, and each person, if any, who controls such persons within the meaning of Section 15 of the 1933 Act (each, a “Sponsor Indemnified Party”) from and against any losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and the reasonable cost of investigation) incurred by such Sponsor Indemnified Party as a result of (i) any breach by the Sponsor of any provision of this Agreement that relates to the Sponsor; (ii) any failure on the part of the Sponsor to perform any obligation of the Sponsor set forth in this Agreement; (iii) any failure by the Sponsor to comply with applicable laws and the rules and regulations of any governmental entity or any self-regulatory organization; (iv) any untrue statements or omissions made in any promotional material or sales literature furnished to the Authorized Participant or otherwise approved in writing by the Trust; (v) actions of such Sponsor Indemnified Party in reasonable reliance upon any instructions issued or representations made by the Sponsor or the Trust in accordance with this Agreement or Attachment A hereto reasonably believed by the Authorized Participant to be genuine and to have been given by the Sponsor or the Trust; or (vi) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement of the Trust as originally filed with the SEC or in any amendment thereof, or in the Prospectus, or in any amendment thereof or supplement thereto, or arising out of or based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except those statements in the Registration Statement or the Prospectus based on information furnished in writing by or on behalf of the Authorized Participant expressly for use in the Registration Statement or the Prospectus. The Sponsor shall not be liable under its indemnity agreement contained in this paragraph with respect to any claim made against any Sponsor Indemnified Party unless the Sponsor Indemnified Party shall have notified the Sponsor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Sponsor Indemnified Party (or after the Sponsor Indemnified Party shall have received notice of service on any designated agent). However, failure to notify the Sponsor of any claim shall not relieve the Sponsor from any liability which it may have to any Sponsor Indemnified Party against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph and shall only release it from such liability under this paragraph to the extent it has been materially prejudiced by such failure to give notice. The Sponsor shall be entitled to participate at its own expense in the defense, or, if it so elects, to assume the defense of any suit brought to enforce any claims, but if the Sponsor elects to assume the defense, the defense shall be conducted by counsel chosen by it and satisfactory to the Sponsor Indemnified Party in the suit and who shall not, except with the consent of the Sponsor Indemnified Party, be counsel to the Sponsor. If the Sponsor does not elect to assume the defense of any suit, it will reimburse the Sponsor Indemnified Party in the suit for the reasonable fees and expenses of any counsel retained by them.

(c) No indemnifying party, as described in paragraphs (a) and (b) above, shall, without the written consent of the AP Indemnified Party or the Sponsor Indemnified Party, as the case may be, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the AP Indemnified Party or Sponsor Indemnified Party, as the case may be, from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any AP Indemnified Party or Sponsor Indemnified Party, as the case may be.

(d) The Sponsor and the Authorized Participant agree promptly to notify each other of the commencement of any proceedings or litigation against it and, in the case of the Sponsor, against any of the Sponsor’s officers or directors, in connection with the issuance and sale of the Shares or in connection with the Registration Statement or the Prospectus.

 

7


Section 9. Liability.

(a) Limitation of Liability . Neither the Sponsor nor the Authorized Participant shall be liable to each other or to any other person for any damages arising out of any mistake or error in data provided to any of them by a third party or out of any interruption or delay in the electronic means of communications used by them.

(b) Tax Liability . The Authorized Participant shall be responsible for the payment of any transfer tax, sales or use tax, stamp tax, recording tax, value added tax and any other similar tax or government charge applicable to the creation or redemption of any Creation Unit made pursuant to this Agreement, regardless of whether or not such tax or charge is imposed directly on the Authorized Participant. To the extent the Sponsor or the Trust is required by law to pay any such tax or charge, the Authorized Participant agrees to promptly indemnify such party for any such payment, together with any applicable penalties, additions to tax or interest thereon upon reasonable notice thereof; provided, however, that the Authorized Participant shall not indemnify the Trust or the Sponsor for any tax or charge or any penalties, additions to tax or interest thereon to the extent that such payments result from the Sponsor’s, the Trust’s, or their designee’s willful misconduct, negligence, or bad faith.

Section 10. Acknowledgment . The Authorized Participant acknowledges receipt of a (i) copy of the Trust Agreement and (ii) the current Prospectus of the Trust, and represents that it has reviewed and understands such documents. The Sponsor and the Trust agree to process Orders, or cause its agents to process Orders, for the creation in accordance with the provisions of the Prospectus of the Trust, the Trust Agreement, and the Procedures.

Section 11. Effectiveness and Termination . Upon the execution of this Agreement by the parties hereto, this Agreement shall become effective in this form as of the date first set forth above, and may be terminated at any time by any party upon thirty (30) days prior written notice to the other parties unless earlier terminated: (i) in accordance with Section 2(a)(i); (ii) upon written notice to the Authorized Participant by the Sponsor in the event of a material breach by the Authorized Participant of this Agreement or the procedures described or incorporated herein; (iii) immediately in the circumstances described in Section 16(j); or (iv) at such time as the Trust is terminated pursuant to the Trust Agreement. This Agreement supersedes any prior agreement between the parties hereto with respect to the subject matter contained herein.

Section 12. Marketing Materials; Representations Regarding Shares; Identification in Registration Statement .

(a) The Authorized Participant represents, warrants and covenants that (i) it will not, in connection with any sale or solicitation of a sale of Shares, make, or permit any of its representatives to make, any representations concerning the Shares or any AP Indemnified Party other than representations not inconsistent with (A) the then-current Prospectus of the Trust, (B) printed information approved by the Sponsor as information supplemental to such Prospectus or (C) any promotional materials or sales literature furnished to the Authorized Participant by the Sponsor, and (ii) the Authorized Participant will not furnish or cause to be furnished to any person or display or publish any information or material relating to the Shares or any AP Indemnified Party that are inconsistent with the Trust’s then-current Prospectus. Copies of the then-current Prospectus of the Trust and any such printed supplemental information will be supplied by the Sponsor to the Authorized Participant in reasonable quantities upon request.

(b) Notwithstanding the foregoing or anything to the contrary in this Agreement, the Authorized Participant and its affiliates may without the written approval of the Sponsor or the Trust prepare and circulate in the regular course of their businesses research, reports, and other similar materials that include information, opinions or recommendations relating to the Shares, provided that such research, reports, and other similar materials comply with applicable NASD rules (or with comparable FINRA rules, if such NASD rules are subsequently repealed, rescinded, or are otherwise replaced by FINRA rules).

(c) The Authorized Participant hereby agrees that for the term of this Agreement the Sponsor, or its designee, may deliver the then-current Prospectus, and any revisions, supplements or amendments thereto or recirculation thereof, to the Authorized Participant in Portable Document Format (“PDF”) via electronic mail to prospectus_NY@ny.mail.gs.com (or to such other address as may be provided by the Authorized Participant from time to time) in lieu of delivering the Prospectus in paper form. The Authorized Participant may revoke the foregoing agreement at any time by delivering written notice to the Sponsor, or the Sponsor’s

 

8


designee, and, whether or not such agreement is in effect, the Authorized Participant may, at any time, request reasonable quantities of the Prospectus, and any revisions, supplements or amendments thereto or recirculation thereof, in paper form from the Sponsor or its designee. The Authorized Participant acknowledges that it has the capability to access, view, save and print material provided to it in PDF and that it will incur no appreciable extra costs by receiving the Prospectus in PDF instead of in paper form. The Sponsor will, when requested by the Authorized Participant, make available, or cause to be made available, at no cost the software and technical assistance necessary to allow the Authorized Participant to access, view and print the PDF version of the Prospectus.

(d) For as long as this Agreement is effective, if required by the SEC, the Authorized Participant agrees to be identified as an authorized participant of the Trust (i) in the section of the Prospectus included within the Registration Statement entitled “Creation and Redemption of Shares” and in any other section as may be required by the SEC and (ii) on the Trust’s website. Upon the termination of this Agreement, (i) during the period prior to when the Sponsor qualifies and in its sole discretion elects to file on Form S-3, the Sponsor will remove such identification from the Prospectus in the amendment of the Registration Statement next occurring after the date of the termination of this Agreement and, during the period after when the Sponsor qualifies and in its sole discretion elects to file on Form S-3, the Sponsor will promptly file a current report on Form 8-K indicating the withdrawal of the Authorized Participant as an authorized participant of the Trust and (ii) the Sponsor will promptly update the Trust’s website to remove any identification of the Authorized Participant as an authorized participant of the Trust.

Section 13. Certain Covenants of the Sponsor . The Sponsor, on its own behalf and as sponsor of the Trust, covenants and agrees:

(a) to advise the Authorized Participant promptly of the happening of any event during the term of this Agreement which could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, to prepare and furnish, at the expense of the Trust, to the Authorized Participant promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;

(b) to furnish directly or cause to be furnished to the Authorized Participant, at each time (i) the Registration Statement or the Prospectus is amended or supplemented by the filing of a post-effective amendment, (ii) a new Registration Statement is filed to register additional Shares in reliance on Rule 429 under the 1933 Act, and (iii) there is financial information incorporated by reference into the Registration Statement or the Prospectus, such customary documents and certificates in form and content as reasonably requested and agreed; and

(c) to cause the Trust to file a post-effective amendment to the Registration Statement no less frequently than once per calendar quarter on or about the same time that the Trust files a quarterly or annual report pursuant to Section 13 or 15(d) of the 1934 Act (including the information contained in such report), until such time as the Trust’s reports filed pursuant to Section 13 or 15(d) of the 1934 Act are incorporated by reference in the Registration Statement.

Section 14. Force Majeure . No party to this Agreement shall incur any liability for any delay in performance, or for the non-performance, of any of its obligations under this Agreement by reason of any cause beyond its reasonable control. This includes any act of God or war or terrorism, any breakdown, malfunction or failure of transmission in connection with or other unavailability of any wire, communication or computer facilities, any transport, port, or airport disruption, industrial action, acts and regulations and rules of any governmental or supra-national bodies or authorities or regulatory or self-regulatory organization or failure of any such body, authority or organization for any reason, to perform its obligations.

Section 15. Ambiguous Instructions . If a Purchase Order Form or a Redemption Order Form contains order terms that differ from the information provided in the telephone call at the time of issuance of the applicable order number, the Sponsor will use commercially reasonable efforts to contact one of the Authorized Persons of the Authorized Participant to request confirmation of the terms of the Order. If an Authorized Person confirms the

 

9


terms as they appear in the Order, then the Order will be accepted and processed. If an Authorized Person contradicts the Order terms, the Order will be deemed invalid, and a corrected Order must be received by the Sponsor. If the Sponsor is not able to contact an Authorized Person, then the Order shall be accepted and processed in accordance with its terms notwithstanding any inconsistency from the terms of the telephone information. In the event that an Order contains terms that are not complete or are illegible, the Order will be deemed invalid and the Sponsor will attempt to contact one of the Authorized Persons of the Authorized Participant to request retransmission of the Order.

Section 16. Miscellaneous .

(a) Amendment and Modification . This Agreement, the Procedures attached as Attachment A and the Exhibits hereto may be amended, modified or supplemented by the Trust and the Sponsor, without consent of the Authorized Participant from time to time by the following procedure. After the amendment, modification or supplement has been agreed to, the Sponsor will mail a copy of the proposed amendment, modification or supplement to the Authorized Participant in accordance with Section 16(c) below. For the purposes of this Agreement, mail will be deemed received by the recipient thereof on the third (3 rd ) day following the deposit of such mail into the United States postal system. Within fifteen (15) calendar days after its deemed receipt, the amendment, modification or supplement will become part of this Agreement, the Attachments or the Exhibits, as the case may be, in accordance with its terms. If at any time there is any material amendment, modification or supplement of any ProShares Trust II Authorized Participant Agreement (other than this Agreement), the Sponsor will promptly mail a copy of such amendment, modification or supplement to the Authorized Participant.

(b) Waiver of Compliance . Any failure of any of the parties to comply with any obligation, covenant, agreement or condition herein may be waived by the party entitled to the benefits thereof only by a written instrument signed by the party granting such waiver, but any such written waiver, or the failure to insist upon strict compliance with any obligation, covenant, agreement or condition herein, shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.

(c) Notices . Except as otherwise specifically provided in this Agreement, all notices required or permitted to be given pursuant to this Agreement shall be given in writing and delivered by personal delivery, by postage prepaid registered or certified United States first class mail, return receipt requested, by nationally recognized overnight courier (delivery confirmation received) or by telex, telegram or telephonic facsimile or similar means of same day delivery (transmission confirmation received), with a confirming copy regular mail, postage prepaid. For avoidance of doubt, notices may not be given or transmitted by electronic mail. Unless otherwise notified in writing, all notices to the Trust shall be given or sent to the Sponsor. All notices shall be directed to the address or telephone or facsimile numbers indicated below the signature line of the parties on the signature page hereof.

(d) Successors and Assigns . This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

(e) Assignment . Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any party without the prior written consent of the other parties, which shall not be unreasonably withheld, except that any entity into which a party hereto may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion, or consolidation to which such party hereunder shall be a party, or any entity succeeding to all or substantially all of the business of the party, shall be the successor of the party under this Agreement and except that the Sponsor may delegate its obligations hereunder to the Distributor or the Administrator by advance written notice to the Authorized Participant. The party resulting from any such merger, conversion, consolidation or succession shall notify the other parties hereto of the change. Any purported assignment in violation of the provisions hereof shall be null and void. Notwithstanding the foregoing, this Agreement shall be automatically assigned to any successor trustee or Sponsor at such time such successor qualifies as a successor trustee or Sponsor under the terms of the Trust Agreement. Furthermore, the Authorized Participant may assign its rights, interests or obligations hereunder to an affiliate without mutual written consent of any other party.

 

10


(f) Governing Law; Consent to Jurisdiction . This Agreement shall be governed by and construed in accordance with the laws of the State of New York (regardless of the laws that might otherwise govern under applicable New York conflict of laws principles) as to all matters, including matters of validity, construction, effect, performance and remedies. Each party hereto irrevocably consents to the jurisdiction of the courts of the State of New York and of any federal court located in the Borough of Manhattan in such State in connection with any action, suit or other proceeding arising out of or relating to this Agreement or any action taken or omitted hereunder, and waives any claim of forum non conveniens and any objections as to laying of venue. Each party further waives personal service of any summons, complaint or other process and agrees that service thereof may be made by certified or registered mail directed to such party at such party’s address for purposes of notices hereunder. Each party hereby waives its right to a trial by jury of any claim arising under or in connection with this Agreement.

(g) Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement, and it shall not be necessary in making proof of this Agreement as to any party hereto to produce or account for more than one such counterpart executed and delivered by such party.

(h) Interpretation . The article and section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement.

(i) Entire Agreement . This Agreement and the Trust Agreement, along with any other agreement or instrument delivered pursuant to this Agreement and the Trust Agreement, supersede all prior agreements and understandings between the parties with respect to the subject matter hereof, provided, however, that the Authorized Participant shall not be deemed by this provision to be a party to the Trust Agreement.

(j) Severance . If any provision of this Agreement is held by any court or any act, regulation, rule or decision of any other governmental or supra national body or authority or regulatory or self-regulatory organization to be invalid, illegal or unenforceable for any reason, it shall be invalid, illegal or unenforceable only to the extent so held and shall not affect the validity, legality or enforceability of the other provisions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter of this Agreement and the deletion of such portion of this Agreement will not substantially impair the respective benefits, obligations, or expectations of the parties to this Agreement. If this Agreement as so modified substantially impairs the respective benefits, obligations, or expectations of the parties to this Agreement, it shall be subject to immediate termination upon written notice by the terminating party delivered in accordance with Section 16(c) of this Agreement.

(k) No Strict Construction . The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.

(l) Survival . Sections 8 (Indemnification) and 17 (No Promotion) hereof shall survive the termination of this Agreement.

(m) Other Usages . The following usages shall apply in interpreting this Agreement: (i) references to a governmental or quasigovernmental agency, authority or instrumentality shall also refer to a regulatory body that succeeds to the functions of such agency, authority or instrumentality; and (ii) “including” means “including, but not limited to.”

Section 17. No Promotion . Except as provided in Section 12(d) of this Agreement, each of the Trust and the Sponsor agrees that it will not, without the prior written consent of the Authorized Participant in each instance, (i) use in advertising, publicity or otherwise the name of the Authorized Participant or any affiliate of the Authorized Participant, or any partner or employee of the Authorized Participant, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by the Authorized Participant or its affiliates, or (ii) represent, directly or indirectly, that any product or any service provided by the Trust or the Sponsor has been approved or endorsed by the Authorized Participant.

[Signature Page Follows]

 

11


IN WITNESS WHEREOF, the Authorized Participant and the Sponsor, on behalf of the Trust, have caused this Agreement to be executed by their duly authorized representatives as of the date first set forth above.

 

ProShare Capital Management LLC    
Sponsor of ProShares Trust II     [Name of Authorized Participant]
By:         By:    
Name:         Name:    
Title:         Title:    
Address:         Address:    
Telephone:         Telephone:    
Facsimile:         Facsimile:    

 

ProShares Trust II
By:    
Name:    
Title:    
Address:    
Telephone:    
Facsimile:    

 

12


EXHIBIT A

PROSHARES TRUST II

FORM OF

AUTHORIZED PERSONS OF AUTHORIZED PARTICIPANT

The following are the names, titles and signatures of all persons (each an “Authorized Person”) authorized to give instructions relating to any activity contemplated by the Authorized Participant Agreement or any other notice, request or instruction on behalf of the Authorized Participant pursuant to the ProShares Trust II Authorized Participant Agreement.

Authorized Participant: ________________________________

 

Name:    
E-Mail Address:    
Telephone:    
Fax:    

 

Name:

   
E-Mail Address:    
Telephone:    
Fax:    

 

Name:

   
E-Mail Address:    
Telephone:    
Fax:    

 

Name:

   
E-Mail Address:    
Telephone:    
Fax:    

 

Certified By:    
Name:    
Title:    
Date:    

 

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ATTACHMENT A

LOGO

PROSHARES TRUST II

AUTHORIZED PARTICIPANT

PROCEDURES HANDBOOK


TABLE OF CONTENTS

 

INTRODUCTION

   3

ULTRA PROSHARES

   4

SHORT PROSHARES

   6

PURCHASE OF CREATION UNITS

   8

Right to Reject Purchase Orders for Creation Unit Aggregations

   11

REDEMPTION OF SHARES

   12

Suspension of Right to Redeem Creation Unit Aggregations

   15

APPENDIX

   A-1

Appendix A – Contact Information

   A-2

Appendix B – Product Information

   B-1

Appendix C – Glossary of Terms

   C-1

 

2


INTRODUCTION

ProShare Capital Management LLC (“Sponsor”) and SEI Investments Distribution Co. (“SEI”) welcome you as an Authorized Participant (“AP”) for ProShares Trust II (the “Trust”). Only APs are permitted to directly purchase or redeem Shares of the Funds directly with the Trust. Definitions used in this Procedures Handbook can be found in the Glossary in Appendix C.

This Procedures Handbook details the procedures for placing and processing Purchase Orders and Redemption Orders in Creation Units. All Orders must be made in accordance with terms and procedures set forth herein. Sponsor or SEI may send you updates or supplements to this Procedures Handbook from time to time, as necessary.

Please note that before an AP may place any Purchase Order, it must sign the Authorized Participant Agreement and return it to SEI. In addition, each AP must receive from SEI a personal identification number (“PIN”). This PIN helps identify the AP and authenticate instructions the AP provides to SEI. An AP’s PIN must be kept confidential and be provided only to those persons who are authorized to give instructions relating to Orders on behalf of the AP. A list of all authorized traders must be sent to SEI with the Authorized Participant Agreement, but may be amended in writing as necessary. Only authorized traders will be allowed to place Orders for Shares.

 

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ULTRA PROSHARES

Ultra ProShares seek to provide daily investment results, before fees and expenses, which correspond to double (200%) the daily performance of a particular index or benchmark.

 

Fund

  

Index or Benchmark

  

Objective

  

Description

Ultra DJ-AIG

Commodity ProShares

  

Dow Jones-AIG Commodity Index

Excess Return

   200% of the Index    The Dow Jones-AIG Commodity Index Excess Return is designed to track rolling futures positions in a diversified basket of 19 exchange-traded futures contracts on physical commodities. The 19 physical commodities selected for 2008 are natural gas, crude oil, gasoline, heating oil, live cattle, lean hogs, wheat, corn, soybeans, soybean oil, aluminum, copper, zinc, nickel, gold, silver, sugar, cotton and coffee.

Ultra DJ-AIG Crude Oil

ProShares

  

Dow Jones-AIG Crude

Oil Sub-Index Excess Return

   200% of the Index    The Dow Jones-AIG Crude Oil Sub-Index Excess Return is intended to reflect the performance of crude oil as measured by the price of nearby futures contracts of sweet, light crude oil traded on the NYMEX, including roll costs, without regard to income earned on cash positions.

Ultra DJ-AIG

Agriculture ProShares

   Dow Jones-AIG Agriculture Sub-Index Excess Return    200% of the Index    The Dow Jones-AIG Agriculture Sub-Index Excess Return is intended to reflect the agricultural market. The Index consists of the following seven commodity futures contracts: coffee, corn, cotton, soybeans, soybean oil, sugar and wheat. The Index will reflect the performance of its underlying commodities, including roll costs, without regard to income earned on cash positions.

 

4


Fund

  

Index or Benchmark

  

Objective

  

Description

Ultra Gold ProShares    The daily performance of gold bullion as measured by the U.S. dollar fixing price for delivery in London.    200% of the Benchmark    The benchmark price of gold will be the U.S. dollar price of gold bullion as measured by the London fixing price at 3:00 p.m. (London time) per troy ounce of unallocated gold bullion for delivery in London through a member of the LBMA authorized to effect such delivery.
Ultra Silver ProShares    The daily performance of silver bullion as measured by the U.S. dollar fixing price for delivery in London.    200% of the Benchmark    The benchmark price of silver will be the U.S. dollar price of silver bullion as measured by the London fixing price at 3:00 p.m. (London time) per troy ounce of unallocated silver bullion for delivery in London through a member of the LBMA authorized to effect such delivery.
Ultra Euro ProShares    The U.S. Dollar price of the Euro    200% of the Benchmark    The benchmark is the daily change in the spot price of the Euro versus the U.S. dollar. The Euro is the official currency of the Eurozone. The Euro is managed and administered by the European Central Bank and the European System of Central Banks. The Funds may purchase Financial Instruments based on the euro to pursue their investment objective.
Ultra Japanese Yen ProShares    The U.S. Dollar price of the Japanese Yen    200% of the Benchmark    The benchmark is the daily change in the spot price of the Japanese yen versus the U.S. dollar. The Funds may purchase Financial Instruments based on the Japanese yen to pursue their investment objective.

 

5


SHORT PROSHARES

UltraShort ProShares seek to provide daily investment results, before fees and expenses, which correspond to double (200%) the inverse of the daily performance of a particular index or benchmark.

 

Fund

  

Index or Benchmark

  

Objective

  

Description

UltraShort DJ-AIG Commodity ProShares   

Dow Jones-AIG

Commodity Index

Excess Return

  

200% of the inverse of

the Index

   The Dow Jones-AIG Commodity Index Excess Return is designed to track rolling futures positions in a diversified basket of 19 exchange-traded futures contracts on physical commodities. The 19 physical commodities selected for 2008 are natural gas, crude oil, gasoline, heating oil, live cattle, lean hogs, wheat, corn, soybeans, soybean oil, aluminum, copper, zinc, nickel, gold, silver, sugar, cotton and coffee.

UltraShort DJ-AIG

Crude Oil ProShares

  

Dow Jones-AIG Crude

Oil Sub-Index Excess

Return

  

200% of the inverse of

the Index

   The Dow Jones-AIG Crude Oil Sub-Index Excess Return is intended to reflect the performance of crude oil as measured by the price of nearby futures contracts of sweet, light crude oil traded on the NYMEX, including roll costs, without regard to income earned on cash positions.

UltraShort DJ-AIG

Agriculture ProShares

  

Dow Jones-AIG

Agriculture Sub-Index

Excess Return

  

200% of the inverse of

the Index

   The Dow Jones-AIG Agriculture Sub-Index Excess Return is intended to reflect the agricultural market. The Index consists of the following seven commodity futures contracts: coffee, corn, cotton, soybeans, soybean oil, sugar and wheat. The Index will reflect the performance of its underlying commodities, including roll costs, without regard to income earned on cash positions.

 

6


Fund

  

Index or Benchmark

  

Objective

  

Description

UltraShort Gold

ProShares

   The daily performance of gold bullion as measured by the U.S. dollar fixing price for delivery in London.    200% of the inverse of the Benchmark    The benchmark price of gold will be the U.S. dollar price of gold bullion as measured by the London fixing price at 3:00 p.m. (London time) per troy ounce of unallocated gold bullion for delivery in London through a member of the LBMA authorized to effect such delivery.

UltraShort Silver

ProShares

   The daily performance of silver bullion as measured by the U.S. dollar fixing price for delivery in London.    200% of the inverse of the Benchmark    The benchmark price of silver will be the U.S. dollar price of silver bullion as measured by the London fixing price at 3:00 p.m. (London time) per troy ounce of unallocated silver bullion for delivery in London through a member of the LBMA authorized to effect such delivery.

UltraShort Euro

ProShares

   The U.S. Dollar price of the Euro    200% of the inverse of the Benchmark    The benchmark is the daily change in the spot price of the Euro versus the U.S. dollar. The Euro is the official currency of the Eurozone. The Euro is managed and administered by the European Central Bank and the European System of Central Banks. The Funds may purchase Financial Instruments based on the euro to pursue their investment objective.

UltraShort Japanese

Yen ProShares

   The U.S. Dollar price of the Japanese Yen    200% of the inverse of the Benchmark    The benchmark is the daily change in the spot price of the Japanese yen versus the U.S. dollar. The Funds may purchase Financial Instruments based on the Japanese yen to pursue their investment objective.

 

7


PURCHASE OF CREATION UNITS

The Trust will offer, issue and sell Ultra and UltraShort ProShares only in Creation Unit Aggregations of a specified number of Shares (50,000), or such other amount of Shares as designated in the relevant Fund’s Prospectus, through SEI on a continuous basis, without a sales load, at their NAV per Share next determined after receipt of a Purchase Order on any Business Day.

Cash Deposits

Creation Units for each Fund will be exchanged only for cash. Creation Units are sold at their NAV, plus a transaction fee.

Eligibility

To be eligible to place a Purchase Order with SEI, an AP must be a DTC Participant.

Cut-Off Time for Purchase Orders

SEI must receive all Purchase Orders to purchase Creation Unit Aggregations no later than the times listed below (or such earlier times if so designated). APs should reference the password-protected ProShares Trust II website for cut-off exceptions.

 

Fund

  

Cut-off Time

Ultra DJ-AIG Commodity ProShares

UltraShort DJ-AIG Commodity ProShares

   10:45 A.M. (Eastern time)

Ultra DJ-AIG Agriculture ProShares

UltraShort DJ-AIG Agriculture ProShares

   12:30 P.M. (Eastern time)

Ultra DJ-AIG Crude Oil ProShares

UltraShort DJ-AIG Crude Oil ProShares

   1:30 P.M. (Eastern time)

Ultra Gold ProShares

UltraShort Gold ProShares

   9:00 A.M. (Eastern time)

Ultra Silver ProShares

UltraShort Silver ProShares

   6:00 A.M. (Eastern time)

Ultra Euro ProShares

UltraShort Euro ProShares

Ultra Japanese Yen ProShares

UltraShort Japanese Yen ProShares

   3:00 P.M. (Eastern time)

 

8


If Purchase Orders are received by a Fund’s identified Cut-off Time and are accepted by SEI, the Purchase Order will be processed based on the NAV of the Fund as next determined. The date on which a Purchase Order to purchase Creation Unit Aggregations is placed is referred to as the “Transmittal Date.” An AP placing orders for Creation Unit Aggregations of the Funds should afford sufficient time to permit proper submission of the order to SEI prior to the identified Cut-off Time on the Transmittal Date. Purchase Orders received after the Cut-off Time will be processed the next Business Day.

Transmittal of Purchase Orders

Purchase Orders may be transmitted by an AP to SEI via telephone, facsimile or the internet

 

By telephone:    (800) 991-7851
By facsimile:    [    ]
By internet:    [    ]

Economic or market disruptions, or telephone or other communication failure may impede the ability to reach SEI or an AP.

Delivery of Cash

Cash must be transferred directly to Brown Brothers Harriman & Co., the Custodian, through the DTC on a Delivery Versus Payment (DVP) basis. If the Custodian does not receive the Cash by the market close on the settlement date, such order may be charged interest for delayed settlement or cancelled. In the event a Purchase Order is cancelled, the AP will be responsible for reimbursing the Fund for all costs associated with canceling the order including costs for repositioning the portfolio, provided, however, that the AP shall not be responsible for such costs if the order was cancelled for reasons outside of its control or it was not otherwise responsible or at fault for such cancellation.

 

9


Transaction Fees

A Transaction Fee may be charged for each Creation Unit. If applicable, the Transaction Fee may consist of a fixed fee and may also include a variable fee as described below.

 

Funds

  

Fixed
Transaction Fee
Per Purchase
Order

  

Variable

Transaction

Fee

Ultra DJ-AIG Commodity ProShares

   $500 per transaction    Up to 10 basis points per unit created

Ultra DJ-AIG Agriculture ProShares

   $500 per transaction    Up to 10 basis points per unit created

Ultra DJ-AIG Crude Oil ProShares

   $500 per transaction    Up to 10 basis points per unit created

Ultra Gold ProShares

   $500 per transaction    Up to 10 basis points per unit created

Ultra Silver ProShares

   $500 per transaction    Up to 10 basis points per unit created

Ultra Euro ProShares

   $500 per transaction    Up to 10 basis points per unit created

Ultra Japanese Yen ProShares

   $500 per transaction    Up to 10 basis points per unit created

UltraShort DJ-AIG Commodity ProShares

   $500 per transaction    Up to 10 basis points per unit created

UltraShort DJ-AIG Agriculture ProShares

   $500 per transaction    Up to 10 basis points per unit created

UltraShort DJ-AIG Crude Oil ProShares

   $500 per transaction    Up to 10 basis points per unit created

UltraShort Gold ProShares

   $500 per transaction    Up to 10 basis points per unit created

UltraShort Silver ProShares

   $500 per transaction    Up to 10 basis points per unit created

 

10


Funds

  

Fixed
Transaction Fee
Per Purchase
Order

  

Variable

Transaction

Fee

UltraShort Euro ProShares

   $500 per transaction    Up to 10 basis points per unit created

UltraShort Japanese Yen ProShares

   $500 per transaction    Up to 10 basis points per unit created

Receipt of Purchase Order

A Purchase Order is deemed received by SEI on the Transmittal Date if (i) such order is received by SEI not later than the specified Cut-off Time on such Transmittal Date; and (ii) all other applicable procedures set forth in this Procedures Handbook are properly followed. The Funds reserve the right to reject a Purchase Order for the reasons set forth in the Prospectus, which are specified below.

Once the Funds have received and accepted a Purchase Order, upon next determination of the NAV of the Shares, SEI will confirm the issuance of a Creation Unit of Shares, against receipt of payment, at such NAV. SEI will then transmit a confirmation of acceptance to the AP that placed the Purchase Order.

Delivery of Creation Units

When Cash is received by the Custodian on the third (3rd) Business Day (or earlier) after the Creation, the Shares will be released.

Settlement

Purchase Orders for the Funds normally settle on a T+3 basis. At its sole discretion, the Sponsor may agree on a settlement cycle other than T+3.

Right to Reject Purchase Orders for Creation Unit Aggregations

Each Fund reserves the right to reject a Purchase Order transmitted to it by SEI if:

 

   

it determines that the purchase order is not in proper form;

 

   

the Sponsor believes that the purchase order would have adverse tax consequences to any Fund or its shareholders;

 

   

the Order would in the opinion of counsel be illegal; or

 

11


   

circumstances outside the control of the Sponsor make it, for all practical purposes, not feasible to process creations of Creation Units.

SEI shall notify an AP of the rejection of a Purchase Order.

REDEMPTION OF SHARES

Shares of the Funds may be redeemed only in Creation Unit Aggregations of a specified number of Shares (50,000), or such other amount of Shares as designated in the relevant Fund’s Prospectus, through SEI on a continuous basis, without a sales load, at their NAV next determined after receipt of a Redemption Order on any Business Day. The Trust will not redeem Shares in amounts less than the Creation Unit Aggregation.

Cash Redemption

The redemption proceeds for a Creation Unit of a Fund will consist solely of cash.

Eligibility

To be eligible to place Redemption Orders with SEI, an AP must be a DTC Participant.

Cut-Off Time for Redemption Orders

SEI must receive all Redemption Orders to redeem Creation Unit Aggregations no later than the times listed below (or such earlier times if so designated). APs should reference the password-protected ProShares Trust II website for cut-off exceptions.

 

Fund

  

Cut-off Time

Ultra DJ-AIG Commodity ProShares

UltraShort DJ-AIG Commodity ProShares

   10:45 A.M. (Eastern time)

Ultra DJ-AIG Agriculture ProShares

UltraShort DJ-AIG Agriculture ProShares

   12:30 P.M. (Eastern time)

Ultra DJ-AIG Crude Oil ProShares

UltraShort DJ-AIG Crude Oil ProShares

   1:30 P.M. (Eastern time)

Ultra Gold ProShares

UltraShort Gold ProShares

   9:00 A.M. (Eastern time)

Ultra Silver ProShares

UltraShort Silver ProShares

   6:00 A.M. (Eastern time)

Ultra Euro ProShares

UltraShort Euro ProShares

Ultra Japanese Yen ProShares

UltraShort Japanese Yen ProShares

   3:00 P.M. (Eastern time)

If Redemption Orders are received by a Fund’s identified Cut-off Time and are accepted by SEI, the Redemption Order will be processed based on the NAV of the Fund as next determined on

 

12


such date. The date on which a Redemption Order to redeem Creation Unit Aggregations is placed is referred to as the “Transmittal Date.” An AP placing a Redemption Order for Creation Unit Aggregations of a Fund should afford sufficient time to permit proper submission of the order to SEI prior to the identified Cut-off Time on the Transmittal Date. Requests received after the Cut-off Time will be processed the next Business Day.

Transmittal of Redemption Orders

Redemption Orders may be transmitted by an AP to SEI by telephone, facsimile or the internet.

By telephone:            (800) 991-7851

By facsimile:             [        ]

By internet:                [        ]

Economic or market disruptions, or telephone or other communication failure may impede the ability to reach SEI or an AP.

Receipt/Delivery of Redemption Order

A Redemption Order for Creation Unit Aggregations is deemed received by SEI on the Transmittal Date if (i) such request is received by SEI not later than a Fund’s identified Cut-off Time on such Transmittal Date (or such earlier time if so designated); and (ii) all other applicable procedures set forth in this Procedures Handbook are properly followed. Delivery of Cash will be made through DTC on a DVP basis to the AP on the third (3rd) Business Day (or earlier at the sole discretion of Sponsor) after the Redemption Order is deemed received by SEI. If delivery fails, the Redemption Order may be cancelled. If a Redemption Order is cancelled, the AP will be required to reimburse the Fund for all costs associated with the cancellation including the cost to reposition the portfolio, provided, however, that the AP shall not be responsible for such costs if the order was cancelled for reasons outside of its control or it was not otherwise responsible or at fault for such cancellation. The Trust will not settle partial Creation Unit Aggregations.

 

13


Transaction Fee

A Transaction Fee may be charged for each Creation Unit redeemed. The Transaction Fee may consist of a fixed fee and may also include a variable fee as described below.

 

Funds

   Fixed
Transaction
Fee Per
Redemption
Order
   Variable
Transaction
Fee

Ultra DJ-AIG Commodity ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

Ultra DJ-AIG Agriculture ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

Ultra DJ-AIG Crude Oil ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

Ultra Gold ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

Ultra Silver ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

Ultra Euro ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

Ultra Japanese Yen ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

UltraShort DJ-AIG Commodity ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

UltraShort DJ-AIG Agriculture ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

 

14


Funds

   Fixed
Transaction
Fee Per
Redemption
Order
   Variable
Transaction
Fee

UltraShort DJ-AIG Crude Oil ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

UltraShort Gold ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

UltraShort Silver ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

UltraShort Euro ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

UltraShort Japanese Yen ProShares

   $500 per
transaction
   Up to 10 basis points
per unit redeemed

Settlement

Redemption Orders customarily settle on a T+3 basis. Redemption Orders which may settle earlier than T+3 may be subject to a charge, which shall be calculated as determined by the Trust or Sponsor.

Suspension of Right to Redeem Creation Unit Aggregations

The right of redemption may be suspended or the date of payment postponed with respect to any Fund for any period during which any of the AMEX, NYSE, CME, CBOT, ICE/NYBOT, LME or NYMEX/COMEX is closed other than for customary holidays or weekend closings or when trading is suspended or restricted on such exchanges in any of the underlying commodities: (i) for any period during which an emergency exists as a result of which the redemption distribution is not reasonably practicable; or (ii) for such other period as the Sponsor determines to be necessary for the protection of the shareholders. The Sponsor will not be liable to any person or in any way for any loss or damages that may result from any such suspension or postponement.

 

15


APPENDIX

 

A-1


APPENDIX A – CONTACT INFORMATION

 

PHONE NUMBERS

CREATION/REDEMPTION ORDERS

(FOR AUTHORIZED PARTICIPANTS

ONLY)

   (800) 991-7851

GENERAL PROSHARES INFORMATION

   (866) 776-7006

INDEX RECEIPT AGENT/TRANSFER

AGENT/ CUSTODIAN

  

[  ]

 

ADDRESS

All Correspondence Via U.S. Mail to:

  

SEI

Attn: ProShares Trust II - ETF Trading Operations

One Freedom Valley Drive

Oaks, PA 19456

 

INTERNET

CREATION/REDEMPTION ORDERS

(FOR AUTHORIZED PARTICIPANTS ONLY)

  

[  ]

GENERAL PROSHARES INFORMATION

   (866) 776-7006

 

A-2


APPENDIX B – PRODUCT INFORMATION

 

    

Ultra DJ-AIG

Commodity

ProShares

  

Ultra DJ-AIG

Crude Oil

ProShares

  

Ultra DJ-AIG
Agriculture

ProShares

  

Ultra Gold

ProShares

Tickers

           

Amex Trading Symbol

           

Intraday Indicative Value (IIV)

           

NAV Symbol

           

Balancing Amount per Creation

Unit Symbol

           

Shares Outstanding Symbol

           

Bloomberg Index Ticker

           

Other Information

           

NSCC Instruction Symbol

   Not applicable    Not applicable    Not applicable    Not applicable

CUSIP #

           

NSCC Instruction CUSIP #

           

Tax ID #

           

Shares Per Creation Unit

           

Specialist

           
    

Ultra Silver
ProShares

  

Ultra Euro
ProShares

  

Ultra Japanese Yen
ProShares

    

Tickers

           

Amex Trading Symbol

           

Intraday Indicative Value (IIV)

           

NAV Symbol

           

Div Equivalent Payment (Est. Cash Component) Symbol

           

Balancing Amount per Creation Unit Symbol

           

Shares Outstanding Symbol

           

Bloomberg Index Ticker

           

Other Information

           

NSCC Instruction Symbol

   Not applicable    Not applicable    Not applicable   

CUSIP #

           

NSCC Instruction CUSIP #

           

Tax ID #

           

Shares Per Creation Unit

           

Specialist

           

 

B-1


    

UltraShort DJ-AIG
Commodity
ProShares

  

UltraShort DJ-AIG
Crude Oil
ProShares

  

UltraShort DJ-AIG
Agriculture
ProShares

  

UltraShort Gold

ProShares

Tickers

           

Amex Trading Symbol

           

Intraday Indicative Value (IIV)

           

NAV Symbol

           

Div Equivalent Payment (Est. Cash Component) Symbol

           

Balancing Amount per Creation Unit Symbol

           

Shares Outstanding Symbol

           

Bloomberg Index Ticker

           

Other Information

           

NSCC Instruction Symbol

   Not applicable    Not applicable    Not applicable    Not applicable

CUSIP #

           

NSCC Instruction CUSIP #

           

Tax ID #

           

Shares Per Creation Unit

           

Specialist

           
           
    

UltraShort Silver
ProShares

  

UltraShort Euro
ProShares

  

UltraShort
Japanese Yen
ProShares

    

Tickers

           

Amex Trading Symbol

           

Intraday Indicative Value (IIV)

           

NAV Symbol

           

Div Equivalent Payment (Est. Cash Component) Symbol

           

Balancing Amount per Creation Unit Symbol

           

Shares Outstanding Symbol

           

Bloomberg Index Ticker

           

Other Information

           

NSCC Instruction Symbol

   Not applicable    Not applicable    Not applicable   

CUSIP #

           

NSCC Instruction CUSIP #

           

Tax ID #

           

Shares Per Creation Unit

           

Specialist

           

 

B-2


APPENDIX C – GLOSSARY OF TERMS

“AMEX” means the American Stock Exchange (or its successor).

“AP” means Authorized Participant.

“Brown Brothers Harriman & Co.” or “BBH” means the Funds’ administrator, custodian and index receipt agent.

“Business Day” means any day other than a day when any of AMEX, the New York Stock Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade, IntercontinentalExchange/New York Board of Trade, the London Metal Exchange or the NYMEX is closed for regular trading.

“Cash” shall mean same day funds in United States dollars.

“CBOT” means the Chicago Board of Trade.

“CME” means the Chicago Mercantile Exchange.

“Creation” means the act of creating a Creation Unit Aggregation.

“Creation Unit” and “Creation Unit Aggregation” means an aggregation of a specified number of Shares of a particular Fund of the Trust as stated in the Prospectus.

“Custodian” means the Fund’s custodian, Brown Brothers Harriman & Co.

“Cut-off Time” means the time that a Purchase Order must be transmitted to SEI to be deemed received. All times are Eastern Time.

“DJ-AIG” means Dow Jones – American International Group.

“DTC” means The Depository Trust Company.

“DTC Participant” refers to a participant in the facilities of the Depository Trust Company.

“DVP” means Delivery Versus Payment.

“Fund” means a series of ProShares Trust II.

“Procedures Handbook” means the ProShares Trust II Authorized Participant Procedures Handbook, as supplemented or amended from time to time.

“ICE/NYBOT” means IntercontinentalExchange/New York Board of Trade.

 

C-1


“IIV” means Intraday Indicative Value.

“LBMA” means London Bullion Market Association.

“LME” means the London Metal Exchange

“NAV” means net Asset value per share.

“NYMEX” means New York Mercantile Exchange, Inc.

“NYSE” means the New York Stock Exchange.

“Orders” means any order to purchase or redeem Creation Unit Aggregations.

“PIN” means a unique personal identification number assigned to each AP that helps identify the AP and authenticate instructions.

“Prospectus” means the Trust’s then current prospectus and statement of additional information included in its effective registration statement, as supplemented or amended from time to time.

“Purchase Orders” refers to the action of placing and processing orders to purchase Creation Unit Aggregations.

“Redemption Orders” refers to the action of placing and processing orders to redeem Creation Unit Aggregations.

“Shares” means the shares represented in a Creation Unit Aggregation.

“SEI” means SEI Investments Distribution Co.

“Sponsor” means the Funds’ sponsor, ProShares Capital Management LLC.

“Transaction Fee” is a fixed dollar fee charged for each Creation Unit regardless of the number of Creations per Fund per Business Day for an AP and applicable variable fee charged based on the total value of Creation Aggregation Units purchased or redeemed.

“Transmittal Date” means the date on which a Purchase Order to purchase Creation Unit Aggregations is placed.

“Trust” means the ProShares Trust II.

 

C-2

Exhibit 10.1

FORM OF SPONSOR AGREEMENT

THIS SPONSOR AGREEMENT (the “ Agreement ”) is dated as of                      between ProShare Capital Management LLC, a Maryland limited liability corporation (“Sponsor”) and ProShares Trust II, a statutory trust organized organized under the laws of Delaware (the “Trust”), both for itself and on behalf of each of its currently operating series (each, a “Fund” and collectively, the “Funds”).

 

  1. The Trust and the Funds . The Trust and each of the Funds may be deemed commodity pools for purposes of the Commodity Exchange Act of 1936, as amended (the “Commodity Exchange Act”) and the applicable regulations of the Commodity Futures Trading Commission (the “CFTC”). Each of the Funds is sponsored by the Sponsor, a commodity pool operator and commodity trading advisor registered under the Commodity Exchange Act. Neither the Trust nor any Fund is an investment company under the Investment Company Act of 1940 and neither is required to register thereunder. The Sponsor is not registered as an investment adviser under the Investment Advisers Act of 1940 and is not required to register thereunder.

 

  2. Appointment . The Trust hereby appoints Sponsor as commodity trading advisor for the Funds, with full power to supervise and direct the investment of the assets of the Funds as set forth herein. Sponsor hereby accepts such appointment and agrees to render services on the terms and conditions set forth in this Agreement.

 

  3. Investment Direction . Sponsor will manage the Funds in accordance with Sponsor’s best judgment and consistent with the Funds’ investment objectives and investment strategies outlined in the Funds’ prospectus and registration statement on Form S-1.

 

  4. Reporting; Record Keeping . Sponsor shall advise the Trust, at such times as the Trust may specify, of any Fund investments made and the reasons for making a particular investment. Sponsor will be available at reasonable times to discuss the management of the Funds with the Trust or its designee. Any written reports supplied by Sponsor to the Trust discussing Fund management are intended solely for the benefit of the Trust and the Funds, and the Trust agrees that it will not disseminate such reports to any other party (other than the Funds’ service providers) without the prior consent of Sponsor, except as may be required by applicable law. Sponsor shall make or cause to be made, and shall maintain or cause to be maintained, all records as are required to be made or maintained by it in its capacity as commodity pool operator and commodity trading advisor of the Funds.

 

  5. Other Accounts . The Trust understands and acknowledges that Sponsor may perform commodity trading advisory services for various persons other than the Funds. The Funds acknowledge that Sponsor may give advice and take action concerning other investing pools that may be the same as, similar to or different from the advice given, or the timing and nature of action taken, concerning the Funds. Except to the extent necessary to perform Sponsor’s obligations under this Agreement, nothing herein shall be deemed to limit or restrict the right of Sponsor, or any affiliate of Sponsor or any employee of Sponsor to engage in any other business or to devote time and attention to the management or other aspects of any other business, whether of a similar or dissimilar nature, or to render services of any kind to any other corporation, firm, individual or association.

 

1


  6. Fees and Expenses . The Trust, on behalf of each Fund, shall pay Sponsor fees for its services as Sponsor hereunder and reimburse expenses of Sponsor as determined by Sponsor and the Trust, on behalf of each Fund, from time to time, all as set forth in the registration statements or reports of the Trust publicly available on the EDGAR system of the Securities and Exchange Commission (“EDGAR filings”). The Sponsor and the Trust, on behalf of each fund, agree that material changes to the fee payment and expense reimbursement structure shall not become effective prior to 30 days after such changes are described in one or more EDGAR filings.

 

  7. Representations; Indemnification . The Trust represents and warrants that: (a) it has been duly organized and is validly existing under the law of the state of its organization, (b) it is duly authorized to execute, deliver and perform this Agreement and has taken all action necessary to authorize its execution, delivery and performance, including the obtaining of any necessary governmental consents, (c) the execution, delivery and performance of this Agreement, including the Investment Guidelines, does not and will not conflict with or violate any provision of law, rule, regulation, governing document of the Trust, contract, deed of trust, or other instrument to which the Trust is a party or to which any of the Trust or Funds’ property is subject, (d) this Agreement is a valid and binding obligation enforceable against the Trust in accordance with its terms (subject to applicable insolvency or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application) and (e) each Fund will be comprised of assets that are owned by each such Fund as principal, and will not be subject to either (i) the Employee Retirement Income Security Act of 1974, as amended, or the Investment Company Act, or (ii) any lien, security interest or other similar encumbrance (other than in favor of the Clearing FCM or the CME clearinghouse). The Trust shall hold Sponsor harmless from any liabilities, damages or expenses, including attorney’s fees, incurred by Sponsor for any actions taken by Sponsor acting in reasonable reliance upon such representations.

 

  8. CFTC Registration . Sponsor represents and warrants that it is registered with the CFTC as a commodity pool operator and a commodity trading advisor.

 

  9. Liability . Sponsor will be liable for losses to the Funds that are the direct result of Sponsor’s bad faith, gross negligence, willful or reckless misconduct or breach of the express terms of this Agreement. Except as set forth in the foregoing sentence, neither Sponsor nor its officers, employees or agents shall be liable hereunder for any act or omission or for any error of judgment in managing the Funds. Sponsor shall not be responsible for any special, indirect or consequential damages, or any loss incurred by reason of any act or omission, by the Funds or any broker, dealer, futures commission merchant or custodian used hereunder or any authorized representative of the foregoing. Notwithstanding the foregoing, nothing herein shall in any way constitute a waiver or limitation of any rights that the Trust or the Funds may have under the federal securities laws or other applicable law.

 

  10. Tax Filings . Except as described in EDGAR filings, Sponsor will not be responsible for making any tax credit or similar claim or any legal filing on the Trust’s or Funds’ behalf.

 

  11.

Governing Law/Disputes . This Agreement is entered into in accordance with and shall be governed by the laws of the State of New York; provided, however , that in the event that any law of the State of New York shall require that the laws of another state or jurisdiction be applied in any proceeding, such New York law shall be superseded by this paragraph, and the

 

2


 

remaining laws of the State of New York shall nonetheless be applied in such proceeding. Each party agrees that in the event that any dispute arising from or relating to this Agreement becomes subject to any judicial proceeding, such party waives any right it may otherwise have to (a) seek punitive damages, or (b) request a jury trial.

 

  12. Termination . This Agreement may be terminated at any time by either party upon 30 days’ prior written notice to the other party. Any obligation or liability of either party resulting from actions or inactions occurring prior to termination shall not be affected by termination of this Agreement.

 

  13. Assignment . Neither party shall assign this Agreement without the written consent of the other party.

 

  14. License to Use Marks . The Trust has been granted, pursuant to separate agreement, a no-fee license to use all service marks or trademarks which the Sponsor or its affiliates have or may register for use in connection with financial services.

 

  15. Notices . All notices and other communications under this Agreement shall be in writing and shall be addressed to the parties at their respective addresses.

Sponsor shall comply with, and be entitled to act on, any instructions reasonably believed to be from an authorized representative of the Trust. Sponsor and its employees and agents shall be fully protected from all liability in acting upon such instructions, without being required to determine the authenticity of the authorization or authority of the persons providing such instructions.

 

  16. Severability . In the event any provision of this Agreement is adjudicated to be void, illegal, invalid or unenforceable, the remaining terms and provisions of this Agreement shall not be affected thereby, and each of such remaining terms and provisions shall be valid and enforceable to the fullest extent permitted by law, unless a party demonstrates by a preponderance of the evidence that the invalidated provision was an essential economic term of this Agreement.

 

  17. Integration; Amendment . This Agreement together with any other written agreements between the parties entered into concurrently with this Agreement contain the entire agreement between the parties with respect to the transactions contemplated hereby and supersede all previous oral or written negotiations, commitments and understandings related thereto. This Agreement may not be amended or modified in any respect, nor may any provision be waived, without the written agreement of both parties. No waiver by one party of any obligation of the other hereunder shall be considered a waiver of any other obligation of such party.

 

  18. Further Assurances . Each party hereto shall execute and deliver such other documents or agreements as may be necessary or desirable for the implementation of this Agreement and the consummation of the transactions contemplated hereby.

 

  19. Headings . The headings of paragraphs herein are included solely for convenience and shall have no effect on the meaning of this Agreement.

 

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  20. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to be one and the same instrument.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 

PROSHARES TRUST II
   

Louis M. Mayberg

President

 

PROSHARE CAPITAL MANAGEMENT LLC
   

Michael L. Sapir

Chief Executive Officer

 

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Exhibit 10.2

Form of ADMINISTRATIVE AGENCY AGREEMENT

THIS ADMINISTRATIVE AGENCY AGREEMENT (the “Agreement”) is made as of                      by and among BROWN BROTHERS HARRIMAN & CO ., a limited partnership organized under the laws of the State of New York (the “ Administrator ”), PROSHARES TRUST II , a statutory trust organized under the laws of the State of Delaware (the “ Trust ” for itself and on behalf of each of its series listed on Appendix A to this Agreement, each a “ Fund ” and collectively, the “ Funds ”), and PROSHARE CAPITAL MANAGEMENT LLC , the Sponsor of the Funds (the “ Sponsor ”).

WITNESSETH:

WHEREAS , each Fund is operated as a commodity pool under the Commodity Exchange Act;

WHEREAS , the Sponsor has exclusive responsibility for the management and control of the business and affairs of the Trust and each Fund; and

WHEREAS , the Trust and the Sponsor desire to retain the Administrator to render certain services to the Trust and the Funds, and the Administrator is willing to render such services.

NOW, THEREFORE , in consideration of the premises and mutual covenants herein contained, the parties hereto agree as follows:

1. Appointment of Administrator . The Trust and the Sponsor hereby employ and appoint the Administrator to act as administrative agent on the terms set forth in this Agreement, and the Administrator accepts such appointment.

2. Delivery of Documents . The Trust and the Sponsor will on a continuing basis provide, or make available to, the Administrator:

2.1 copies of the Trust’s most recent registration statement under the Securities Act of 1933;

2.2 copies of all agreements between the Trust and its service providers, including without limitation, sponsor and distribution agreements;

2.3 copies of each Fund’s valuation procedures, to the extent they are developed;

 

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2.4 a copy of the Trust’s charter documents;

2.5 any other documents or resolutions which relate to or affect the Administrator’s performance of its duties hereunder; and

2.6 copies of any and all amendments or supplements to the foregoing.

3. Duties as Administrator. The Administrator will perform the administrative services described in Appendix B hereto. Additional services may be provided by the Administrator upon the request of the Trust as mutually agreed from time to time. In performing its duties and obligations hereunder, the Administrator will act in accordance with the Sponsor’s instructions as defined in Section 5 (“Instructions”). It is agreed and understood that the Administrator shall not be responsible for the Trust’s or any Fund’s compliance with any applicable documents (including any Fund Records (as defined below) not created by the Administrator that the Administrator has agreed to maintain pursuant to Section 3.1 below), laws or regulations, or for losses, costs or expenses arising out of the Trust’s or any Fund’s failure to comply with said documents, laws or regulations or the Trust’s or any Fund’s failure or inability to correct any non-compliance therewith. The Administrator shall in no event be required to take any action, which is in contravention of any applicable law, rule or regulation or any order or judgment of any court of competent jurisdiction.

3.1 Records. The Administrator will maintain and retain such records as required by the Securities Exchange Act of 1934, as amended, the rules of the stock exchange on which the Funds’ shares are listed, 17 C.F.R. 4.23 (specifically, the records specified in 17 C.F.R. 4.23(a)(1) through (8), (10) through (12) and (b)(1)), and other applicable federal securities laws and created pursuant to the performance of the Administrator’s obligations under this Agreement. The Administrator will also maintain those records of the Trust and the Funds including any changes, modifications or amendments thereto (the “Fund Records”) and will act as document repository for such Fund Records. Upon receipt of such Fund Records, the Administrator will issue a receipt for such Fund Records. The Administrator shall maintain a complete and orderly inventory of all Fund Records for which it has issued a receipt. The Administrator shall be under no duty or obligation to audit or reconcile the content, nor shall the Administrator be responsible for the accuracy or completeness of those Fund Records not created by the Administrator. Upon written request in a form to be determined by Administrator and the Trust, the Administrator will return or release the requested Fund Records to such persons or entities pursuant to the Instructions provided by the Trust. Once one or more Fund Records have been returned or released by the Administrator, the Administrator shall have no further duty or obligation to act as repository for said previously released Fund Records. The Sponsor represents and warrants that: (a) promptly after the date of this Agreement, it will, at its own

 

2


expense, deliver, cause to be delivered or make available to the Administrator all of the Fund Records in effect as of the date of this Agreement; (b) it will, on a continuing basis and at its own expense, promptly deliver, cause to be delivered or make available to the Administrator any Fund Records created after the date of this Agreement; (c) it has adequate record-keeping policies and procedures in effect to ensure that all Fund Records are promptly provided to the Administrator pursuant to the terms of this Agreement; (d) it shall be responsible for the accuracy and completeness of any Fund Records not created by the Administrator; and (e) it shall be responsible for ensuring the Trust’s or the Funds’ compliance with, fulfillment of its obligations under or enforcement of, any Fund Records not created by the Administrator. The Administrator acknowledges that the records maintained and preserved by the Administrator pursuant to this Agreement are the property of the Trust and will be, at the Trust’s expense, surrendered promptly upon reasonable request. In performing its obligations under this Section, the Administrator may utilize micrographic and electronic storage media as well as independent third party storage facilities.

4. Duties of the Sponsor . The Sponsor shall notify the Administrator promptly of any matter affecting the performance by the Administrator of its services under this Agreement and where the Administrator is providing fund accounting services pursuant to this Agreement shall promptly notify the Administrator as to the accrual of liabilities of the Funds and liabilities of the Funds not appearing on the books of account kept by the Administrator as to the existence, status and proper treatment of reserves, if any. The Sponsor agrees to provide such information to the Administrator as may be requested under the banking and securities laws of the United States or other jurisdictions relating to “Know Your Customer” and money laundering prevention rules and regulations (collectively, the “KYC Requirements”). For purposes of this subsection, and in connection with all applicable KYC Requirements, the Trust and each Fund is the “client” or “customer” of the Administrator. The Sponsor further represents that it (or its duly appointed agent) will perform all obligations required under applicable KYC Requirements with respect to Fund shareholders (“Customers”) and that, because these customers do not constitute “customers” or “clients” of the Administrator under such applicable rules and regulations, the Administrator is under no such similar obligations.

 

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5. Instructions.

5.1 The Administrator shall not be liable for, and shall be indemnified by the Trust from the assets of the Funds against any and all losses, costs, damages or expenses arising from or as a result of, any action taken or omitted in reliance upon Instructions or upon any other written notice, request, direction, instruction, certificate or other instrument believed by it to be genuine and signed or authorized by the proper party or parties. A list of persons so authorized by the Sponsor (“Authorized Persons”) is attached hereto as Appendix C and upon which the Administrator may rely until its receipt of notification to the contrary by the Sponsor or the Trust.

5.2 Instructions shall include a written request, direction, instruction or certification signed or initialed on behalf of the Sponsor by one or more persons as the Trust of the Funds shall have from time to time authorized in writing. Those persons authorized to give Instructions may be identified by the Sponsor by name, title or position and will include at least one officer empowered by the Board to name other individuals who are authorized to give Instructions on behalf of the Fund.

5.3 Telephonic or other oral instructions or instructions given by telefax transmission may be given by any one of the above persons and will also be considered Instructions if the Administrator believes them to have been given by a person authorized to give such Instructions with respect to the transaction involved.

5.4 With respect to telefax transmissions, the Sponsor hereby acknowledges that (i) receipt of legible instructions cannot be assured, (ii) the Administrator cannot verify that authorized signatures on telefax instructions are original, and (iii) the Administrator shall not be responsible for losses or expenses incurred through actions taken in reliance on such telefax instructions. The Sponsor agrees that such telefax instructions shall be conclusive evidence of the Sponsor’s Instruction to the Administrator to act or to omit to act.

5.5 Instructions given orally will not be confirmed in writing and the lack of such confirmation shall in no way affect any action taken by the Administrator in reliance upon such oral Instructions. The Trust authorizes the Administrator to tape record any and all telephonic or other oral Instructions given to the Administrator by or on behalf of the Funds (including the officers, employees or agents of the Sponsor or any person or entity with similar responsibilities which is authorized to give Instructions on behalf of the Funds to the Administrator.)

6. Expenses and Compensation . For the services to be rendered and the facilities to be furnished by the Administrator as provided for in this Agreement, the Trust shall pay the Administrator for its services rendered pursuant to this Agreement a fee based on such fee schedule as may from time to time be agreed upon in writing by the Trust and the Administrator. Additional services performed by the Administrator as requested by the Trust shall be subject to additional fees as mutually agreed from time to time. In addition to such fee, the Administrator shall bill the Trust separately for any out-of-pocket disbursements of the Administrator based on an out-of-pocket schedule as may from time to time be agreed upon in writing by the Trust and the Administrator. The foregoing fees and disbursements shall be billed to the Trust by the Administrator and shall be paid promptly by wire transfer or other appropriate means to the Administrator.

 

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7. Standard of Care . The Administrator shall be held to the exercise of reasonable care and diligence in carrying out the provisions of this Agreement, provided that the Administrator shall not thereby be required to take any action which is in contravention of any applicable law, rule or regulation or any order or judgment of any court of competent jurisdiction.

8. General Limitations on Liability . The Administrator shall incur no liability with respect to any telecommunications, equipment or power failures, or any failures to perform or delays in performance by postal or courier services or third-party information providers (including without limitation those listed on Appendix D).

8.1 The Administrator shall also incur no liability under this Agreement if the Administrator or any agent or entity utilized by the Administrator shall be prevented, forbidden or delayed from performing, or omits to perform, any act or thing which this Agreement provides shall be performed or omitted to be performed, by reason of causes or events beyond its control, including but not limited to:

8.1.1 any Sovereign Event. A “Sovereign Event” shall mean any nationalization; expropriation; devaluation; revaluation; confiscation; seizure; cancellation; destruction; strike; act of war, terrorism, insurrection or revolution; or any other act or event beyond the Administrator’s control;

8.1.2 any provision of any present or future law, regulation or order of the United States or any state thereof, or of any foreign country or political subdivision thereof, or of any securities depository or clearing agency; and

8.1.3 any provision of any order or judgment of any court of competent jurisdiction.

8.2 The Administrator shall not be held accountable or liable for any losses, damages or expenses the Funds or any unit holder or shareholder or former unit holder shareholder of the Funds or any other person may suffer or incur arising from acts, omissions, errors or delays of the Administrator in the performance of its obligations and duties as provided in Section 3 hereof, including without limitation any error of judgment or mistake of law, except a damage, loss or expense directly resulting from the Administrator’s willful malfeasance, bad faith or negligence in the performance of such Administrator’s obligations and duties.

 

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8.3 In no event and under no circumstances shall the Administrator be held liable to the other party for consequential or indirect damages, loss of profits, damage to reputation or business or any other special or punitive damages arising under or by reason of any provision of this Agreement or for any act or omissions hereunder, even if the Administrator has been advised of the possibility of such damages or losses.

9. Specific Limitations on Liability. In addition to, and without limiting the application of the general limitations on liability contained in Section 8, above, the following specific limitations on the Administrator’s liability shall apply to the particular administrative services set forth in this Agreement and Appendix B hereto.

9.1 Record-Keeping. The Sponsor agrees that the Administrator shall not be responsible for the accuracy and completeness of any Fund Records not created by the Administrator or for ensuring the Trust’s or the Funds’ compliance with, fulfillment of its obligations under or enforcement of, any Fund Records not created by the Administrator.

9.2 Liability for Fund Accounting Services. Without limiting the provisions in Section 8 hereof, the Administrator’s liability for acts, omissions, errors or delays relating to its fund accounting obligations and duties shall be limited to the amount of any expenses associated with a required recalculation of net asset value per share (“NAV”) or any direct damages suffered by Fund shareholders in connection with such recalculation. The Administrator’s liability or accountability for such acts, omissions, errors or delays shall be further subject to clauses 9.2.1 through 9.2.4 below.

9.2.1. The parties hereto acknowledge that the Administrator’s causing an error or delay in the determination of NAV may constitute negligence or reckless or willful misconduct. The parties further acknowledge that in accordance with industry practice, the Administrator shall be liable and the recalculation of NAV shall be performed only with regard to errors in the calculation of the NAV that are greater than or equal to any amount rounded to $.01 per share of a Fund. If a recalculation of NAV occurs, the parties hereto agree to reprocess Fund shareholder transactions or take such other action(s) so as to eliminate or minimize to the extent possible the liability of the Administrator.

9.2.2. In no event shall the Administrator be liable or responsible for any error or delay that continued or was undetected after the date of an audit performed by the independent registered public accounting firm employed by the Trust or Sponsor if, in the exercise of reasonable care in accordance with generally accepted accounting standards, such firm should have become aware of such error or delay in the course of performing such audit.

 

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9.2.3 The Administrator shall not be held accountable or liable for any delays or losses, damages or expenses resulting from (i) the Administrator’s failure to receive timely and suitable notification concerning quotations or corporate actions relating to or affecting Fund securities of the Funds; or (ii) any errors in the computation of NAV based upon or arising out of quotations or information as to corporate actions if received by the Administrator either (a) from a source which the Administrator was authorized to rely upon (including, but not limited to, the fair value pricing procedures of the Sponsor and those sources listed on Appendix D), or (b) based upon relevant information known to the Sponsor which would impact the calculation of NAV but which is not communicated to the Administrator. To the extent that Fund assets are not in the custody of the Administrator or its affiliates, the Administrator may conclusively rely on any reporting in connection with such assets provided to the Administrator by a third party on behalf of a Fund.

9.2.4. In the event of any error or delay in the determination of such NAV for which the Administrator may be liable, the Sponsor and the Administrator will consult and make good faith efforts to reach agreement on what actions should be taken in order to mitigate any loss suffered by a Fund or its present or former shareholders, in order that the Administrator’s exposure to liability shall be reduced to the extent possible after taking into account all relevant factors and alternatives. It is understood that in attempting to reach agreement on the actions to be taken or the amount of the loss which should appropriately be borne by the Administrator, the Sponsor and the Administrator will consider such relevant factors as the amount of the loss involved, the Sponsor’s desire to avoid loss of Fund shareholder good will, the fact that other persons or entities could have been reasonably expected to have detected the error sooner than the time it was actually discovered, the appropriateness of limiting or eliminating the benefit which Fund shareholders or former Fund Shareholders might have obtained by reason of the error, and the possibility that other parties providing services to the Fund might be induced to absorb a portion of the loss incurred. Provided however, that nothing in this Section 9.2.4 shall obligate the Sponsor to in fact reach such agreement on what actions should be taken in order to mitigate any loss suffered by Fund shareholders before it pursues remedies against Administrator.

10. Indemnification. The Trust, from the assets of the Fund only, hereby agrees to indemnify the Administrator against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any act, omission, error or delay or any claim, demand, action or suit, in connection with or arising out of performance of its obligations and duties under this Agreement, not resulting from the willful malfeasance, bad faith or negligence of the Administrator in the performance of such obligations and duties. The provisions of this Section 10 shall survive the termination of this Agreement.

 

7


11. Reliance by the Administrator on Opinions of Counsel and Opinions of Certified Public Accountants .

The Administrator may consult with its counsel in any case where so doing appears to the Administrator to be necessary or desirable. The Administrator shall not be considered to have engaged in any misconduct or to have acted negligently and shall be without liability in acting upon the advice of such counsel.

The Administrator may consult with a certified public accountant in any case where so doing appears to the Administrator to be necessary or desirable. The Administrator shall not be considered to have engaged in any misconduct or to have acted negligently and shall be without liability in acting upon the advice of such certified public accountant.

12. Termination of Agreement . This Agreement may be terminated by either party in accordance with the provisions of this Section

12.1 This Agreement shall have an initial term of three (3) years from the date hereof. Thereafter, this Agreement shall automatically renew for successive one (1) year periods unless a party terminates this Agreement by written notice effective no sooner than seventy-five (75) days following the date that notice to such effect shall be delivered to the other parties at their addresses set forth herein. Notwithstanding the foregoing provisions, any party may terminate this Agreement at any time (a) for cause, which is a material breach of the Agreement not cured within sixty (60) days, in which case termination shall be effective upon written receipt of notice by the non-terminating party, or upon thirty (30) days written notice to the other party in the event that any party is adjudged bankrupt or insolvent, or there shall be commenced against such party a case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect. In the event a termination notice is given by a party hereto, all expenses associated with the movement of records and materials and the conversion thereof shall be paid by the Trust from the assets of the Funds for which services shall cease to be performed hereunder. The Administrator shall be responsible for completing all actions in progress when such termination notice is given unless otherwise agreed.

12.2. Upon termination of the Agreement in accordance with this Section 12, the Sponsor may request the Administrator to promptly deliver to the Sponsor or to any designated third party all records created and maintained by the Administrator pursuant to Section 3.1 of this Agreement, as

 

8


well as any Fund records maintained but not created by the Administrator. If such request is provided in writing by the Sponsor to the Trust within seventy-five (75) days of the date of termination of the Agreement, the Administrator shall provide to the Sponsor a certification that all records created by the Administrator pursuant to its obligations under Section 3.1 of this Agreement are accurate and complete. After seventy-five (75) days of the date of termination of this Agreement, no such certification will be provided to the Sponsor by the Administrator and the Administrator is under no further obligation to ensure that records created by the Administrator pursuant to Section 3.1 of this Agreement are maintained in a form that is accurate or complete.

13. Confidentiality. The parties hereto agree that each shall treat confidentially the terms and conditions of this Agreement and all information provided by each party to the other regarding its business and operations. All confidential information provided by a party hereto shall be used by any other party hereto solely for the purpose of rendering or obtaining services pursuant to this Agreement and, except as may be required in carrying out this Agreement, shall not be disclosed to any third party without the prior consent of such providing party. The foregoing shall not be applicable to any information that is publicly available when provided or thereafter becomes publicly available other than through a breach of this Agreement, or that is required to be disclosed by or to any Regulatory Authority, any auditor of the parties hereto, or by judicial or administrative process or otherwise by Applicable Law.

14. Tape-recording . The Trust authorizes the Administrator to tape record, to the extent permitted by federal and state law, any and all telephonic or other oral instructions given to the Administrator by or on behalf of the Funds, including from any Authorized Person. This authorization will remain in effect until and unless revoked by the Trust in writing. The Sponsor agrees to solicit valid written or other consent from any of its employees with respect to telephone communications to the extent such consent is required by applicable law.

15. Entire Agreement; Amendment. This Agreement constitutes the entire understanding and agreement of the parties hereto and supersedes any other oral or written agreements heretofore in effect between the parties with respect to the subject matter hereof. No provision of this Agreement may be amended or terminated except by a statement in writing signed by the party against which enforcement of the amendment or termination is sought.

16. Severability. In the event any provision of this Agreement is determined to be void or unenforceable, such determination shall not affect the remainder of this Agreement, which shall continue to be in force.

 

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17. Headings. The section headings in this Agreement are for the convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions thereof.

18. Governing Law . This Agreement shall be governed by and construed according to the laws of the Commonwealth of Massachusetts without giving effect to conflicts of laws principles and each of the parties hereto irrevocably consents to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts in the City of Boston and the federal courts located in the City of Boston. The parties hereto irrevocably waives any objection it may now or hereafter have to the laying of venue of any action or proceeding in any of the aforesaid courts and any claim that any such action or proceeding has been brought in an inconvenient forum. Furthermore, each party hereto irrevocably waives any right that it may have to trial by jury in any action, proceeding or counterclaim arising out of or related to this Agreement or the services contemplated hereby.

19. Notices. Notices and other writings delivered or mailed postage prepaid to: (i) the Trust and the Sponsor addressed to: ProFunds Group, 7501 Wisconsin Avenue, Suite 1000—East Tower, Bethesda, MD 20814, Attention: Financial Administration or to such other address as the Trust or Sponsor may have designated to the Administrator in writing, (ii) the Administrator at 40 Water Street, Boston, MA 02109, Attention: Manager, Fund Administration Department, or to such other address as the Administrator may have designated to the parties hereto in writing, shall be deemed to have been properly delivered or given hereunder to the respective addressee.

20. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Trust, the Sponsor and the Administrator and their respective successors and assigns, provided that no party hereto may assign this Agreement or any of its rights or obligations hereunder without the written consent of the other party. Each party agrees that only the parties to this Agreement and/or their successors in interest shall have a right to enforce the terms of this Agreement. Accordingly, no unit holder or shareholder of a Fund or other third party shall have any rights under this Agreement and such rights are explicitly disclaimed by the parties.

21. Counterparts . This Agreement may be executed in any number of counterparts each of which shall be deemed to be an original. This Agreement shall become effective when one or more counterparts have been signed and delivered by each of the parties. A photocopy or telefax of the Agreement shall be acceptable evidence of the existence of the Agreement and the Administrator shall be protected in relying on the photocopy or telefax until the Administrator has received the original of the Agreement.

 

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22. Authorization. The Trust and Sponsor hereby represent and warrant that they have authorized the execution and delivery of this Agreement and that an authorized officer of each have signed this Agreement, Appendices A, B, C, D and the fee schedule hereto.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first written above.

The undersigned acknowledges that (I/we) have received a copy of this document .

 

BROWN BROTHERS HARRIMAN & CO.
By:    
Name:  
Title:  
Date:  

 

PROSHARES TRUST II    

PROSHARE CAPITAL

MANAGEMENT LLC

By:         By:    
Name:       Name:  
Title:       Title:  
Date:       Date:  

 

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APPENDIX A

ADMINISTRATIVE AGENCY AGREEMENT

Dated as of                     

The following is a list of Funds for which the Administrator shall serve under an Administrative Agency Agreement dated as of                      :

Ultra DJ AIG Commodity ProShares

UltraShort DJ AIG Commodity ProShares

Ultra DJ AIG Agriculture ProShares

UltraShort DJ AIG Agriculture ProShares

Ultra DJ AIG Crude Oil ProShares

UltraShort DJ AIG Crude Oil ProShares

Ultra Gold ProShares

UltraShort Gold ProShares

Ultra Silver ProShares

UltraShort Silver ProShares

Ultra Euro ProShares

UltraShort Euro ProShares

Ultra Yen ProShares

UltraShort Yen ProShares

 

PROSHARES TRUST II
By:    
Name:  
Title:  
PROSHARE CAPITAL MANAGEMENT LLC
By:    
Name:  
Title:  
Date:  

 

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APPENDIX B

TO ADMINISTRATIVE AGENCY AGREEMENT

ADMINISTRATIVE SERVICES OF THE ADMINISTRATIVE AGENT

Dated as of                     

Fund Accounting Services

The Administrator will provide the following fund accounting services to the Funds on any Business Day: transaction processing and review, custodial reconciliation, securities pricing and investment accounting.

Transaction Processing and Review . The Administrator shall input and reconcile the Funds’ investment activity including with respect to:

 

   

Investment taxlots

 

   

Income

 

   

Dividends

 

   

Principal paydowns

 

   

Capital activity

 

   

Expense accruals

 

   

Cash activity

 

   

Corporate Reorganizations

Custodial Reconciliation . The Administrator shall reconcile the following positions of the Funds against the records of the Custodian:

 

   

Securities, Futures and Over-the-Counter Contract (“OTC”) holdings

 

   

Cash including cash transfers, fees assessed and other investment related cash transactions

 

   

Trade settlements

Securities, Futures and OTC Valuation . Using the Valuation Procedures set forth in Appendix D, the Administrator shall update each security, Futures and OTC position of the Funds as to the following:

 

   

Market prices obtained from approved sources including those listed on Appendix C or Fair Valuations obtained from an Authorized Person of the Funds or the Managing Owner

 

   

Mark to market of non-base receivables/payables utilizing approved foreign exchange quotations as quoted in Appendix C

 

   

Mark to market of non-base currency positions utilizing the approved sources quoted in Appendix C or Fair Valuations obtained from an Authorized Person of the Funds or the Managing Owner

Investment Accounting . The Administrator shall provide the following investment accounting services to each Portfolio:

 

   

Amortization/accretion at the individual tax lot level

 

   

General ledger entries

 

   

Book value calculations

 

   

Trade Date + 1 accounting

 

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Calculation of Net Asset Value Per Unit (“NAV”) as of the earlier of 4:00 p.m. New York time, the close of trading on the New York Stock Exchange (“NYSE”) or a mutually agreed upon time and published shortly after the close of trading on the NYSE

The below matrix reflects mutually agreed upon NAV valuation deadlines:

 

Fund Name

   Valuation Time

Ultra Short Silver ProShares

   7:00am
Ultra Silver ProShares    7:00am
Ultra Gold ProShares    10:00am
UltraShort Gold ProShares    10:00am
Ultra DJ-AIG Agriculture ProShares    2:15pm
UltraShort DJ-AIG Agriculture ProShares    2:15pm
Ultra DJ-AIG Commodity ProShares    2:30pm
UltraShort DJ-AIG Commodity ProShares    2:30pm
Ultra DJ-AIG Crude Oil ProShares    2:30pm
UltraShort DJ-AIG Crude Oil ProShares    2:30pm
Ultra Euro ProShares    4:00pm
UltraShort Euro ProShares    4:00pm
Ultra Yen ProShares    4:00pm
UltraShort Yen ProShares    4 :00pm

NAV/Portfolio Holding Dissemination : The Administrator will provide daily NAV and holdings data to Lipper and Morningstar.

Financial Reporting Services

 

   

The Administrator shall accumulate information for and prepare

 

   

Within a 30 day period following the end of the Funds’ required monthly reporting period, an Account Statement in compliance with the requirements of the U.S. Commodity Futures Trading Commission (“CFTC”) Rule §4.22(a), including a Statement of Income (Loss) and a Statement of Changes in Net Asset Value; such preparation includes the coordination and review of all printer and author edits. The Funds or the Managing Owner shall make arrangements for the printing and mailing of the Account Statements.

 

   

Upon review and approval of each above-mentioned report by the Managing Owner’s Treasurer and/or Chief Financial Officer (or such person performing such functions), the Administrator shall file such reports with the CFTC and/or National Futures Association (“NFA”), as required, including any applicable executive officer certifications or other exhibits to such reports.

 

   

In connection with the preparation of each Annual Report on Form 10-K, the Administrator shall coordinate the audit of the Funds by their independent public accountant (e.g., manage open items lists, host weekly audit meeting, etc.).

The Administrator shall assist the Funds and/or the Managing Owner in preparing the Funds’ press releases with respect to interim statements and quarterly results and transmitting such press releases to the American Stock Exchange (“AMEX”) and such other entities as requested by the Funds and/or the Managing Owner.

 

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Assistant Treasurer Services

The Administrator shall perform the following services as requested by the Managing Owner’s Treasurer (or person performing such function):

 

   

Prepare and obtain authorization of the Funds’ expense invoices on a bi-monthly basis

 

   

Prepare the Funds’ quarterly budget and make recommendations for adjustments as appropriate

 

   

Prepare a monthly expense pro forma for the Funds

 

   

Provide consultative services with respect to financial matters of the Funds as may be requested and agreed to among the Funds, the Managing Owner and the Administrator from time to time

Corporate Secretarial Services

The Administrator shall prepare the annual officers questionnaires and distribute the questionnaires to the officers of the Managing Owner.

Regulatory Support Services

The Administrator shall perform the following regulatory services for the Funds:

 

   

Maintain a calendar for all U.S. Securities and Exchange Commission (“SEC”), CFTC, NFA and AMEX regulatory matters in the form of Exhibit A; provided that the Funds and/or the Managing Owner shall notify the Administrator of additional regulatory matters to be added to such calendar as soon as practicable

 

   

Within a 45 day production cycle, or shorter time period as required by the SEC and communicated to the Administrator by the Funds or the Managing Owner, one Quarterly Report on Form 10-Q for the Funds for each of the first three fiscal quarters of the Funds. The preparation of each Form 10-Q includes the coordination of all printer and author edits and the review of printer drafts.

 

   

Within a 90 day production cycle, or shorter time period as required by the SEC and communicated to the Administrator by the Funds or the Managing Owner, one Annual Report on Form 10-K for the Funds per fiscal year. The preparation of the Form 10-K includes the coordination of all printer and author edits and the review of printer drafts. The Funds or the Managing Owner shall make arrangements for the printing and mailing of the Form 10-K.

 

   

Within 90 days after the end of the Funds’ fiscal year, one Annual Report of the Funds in compliance with the requirements of CFTC Rule §4.22(c); such preparation includes the coordination of all printer and author edits and the review of printer drafts. The Funds or the Managing Owner shall make arrangements for the printing and mailing of the Annual Report.

Upon review and approval of each above-mentioned report by the Managing Owner’s Treasurer and/or Chief Financial Officer (or such person performing such functions), the Administrator shall Edgarize and file, or caused to be Edgarized and filed, such reports with the SEC, CFTC and/or NFA, as required, including any applicable executive officer certifications or other exhibits to such reports.

The Administrator also shall prepare and file, or cause to be filed, the following regulatory notices/forms/reports:

 

   

With the SEC, Forms 3, 4 and 5 and Schedules 13D and 13G for the officers of the Managing Owner and such other persons as requested by the Funds

 

   

With the SEC, Current Reports on Form 8-K as circumstances warrant

 

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With the AMEX, such notices/forms as agreed to among the Funds, the Managing Owner and the Administrator

Transfer Agency Services

The Administrator shall perform the following transfer agency services:

I. Issuance and Redemption of Unit Baskets. It is agreed and understood that the Funds, and the Administrator on the Funds’ behalf, shall issue and redeem Share Baskets of the Funds in blocks of __________ Units (“Creation Baskets” and “Redemption Baskets,” respectively) to and from such persons as are identified by the Funds as “Authorized Purchasers” or “Authorized Participants.”

 

  A. Pursuant to such purchase orders that the Administrator as the Index Receipt Agent shall receive from ALPS Distributors, Inc. (“Marketing Agent”) and pursuant to the procedures set forth in the Authorized Participant Agreement entered into by the Funds, the Administrator shall transfer appropriate trade instructions to the Funds’ custodian, Brown Brothers Harriman & Co. (“Custodian”) and pursuant to such orders register the appropriate number of book entry only the Funds’ Units in the name of The Depository Trust Company (“DTC”) or its nominee as a unitholder (each a “Authorized Participant”) of the Funds and deliver the Basket of Units of the Funds.

 

  B. Pursuant to such redemption orders that Index Receipt Agent shall receive from the Marketing Agent, pursuant to the procedures set forth in the Authorized Participant Agreement entered into by the Funds, the Administrator shall transfer appropriate trade instructions to the Custodian and, pursuant to such orders, redeem the appropriate number of the Funds’ Units that are delivered to the designated DTC Participant Account of the Custodian for redemption and debit such Units from the account of the Authorized Participant on the register of the Funds.

 

  C. On behalf of the Funds, the Administrator shall issue the Funds’ Units in Creation Baskets for settlement with purchasers through DTC as the purchaser is authorized to receive. Beneficial ownership of the Funds’ Units shall be shown on the records of DTC and DTC Participants and not on any records maintained by the Administrator. In issuing the Funds’ Units through DTC to an Authorized Participant, the Administrator shall be entitled to rely upon the latest Instructions that are received from the Marketing Agent by the Administrator as Index Receipt Agent concerning the issuance and delivery of such Units for settlement.

 

  D. The Administrator shall not issue on behalf of the Funds any of the Funds’ Units where it has received an Instruction from the Funds or the Marketing Agent or written notification from any federal or state authority that the sale of the Funds’ Units has been suspended or discontinued, and the Administrator shall be entitled to rely upon such Instructions or written notification.

 

  E. Upon the issuance of the Funds’ Units as provided herein, the Administrator shall not be responsible for the payment of any original issue or other taxes, if any, required to be paid by the Funds’ or the Marketing Agent in connection with such issuance.

 

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  F. The Funds’ Units may be redeemed in accordance with the procedures set forth in the relevant Authorized Participant Agreement and the Administrator shall duly process all redemption requests.

 

  G. The Administrator will act only upon Instruction from the Funds and/or the Managing Owner in addressing any failure in the delivery of cash, treasuries and/or Units in connection with the issuance and redemption of the Funds’ Units.

II. Recordkeeping .

 

  A. The Administrator shall record the issuance of the Funds’ Creation Baskets and maintain, pursuant to Rule 17Ad-14(e) under the Securities Exchange Act of 1934, as amended, a record of the total number of the Funds’ Creation Baskets that are authorized, issued and outstanding based upon data provided to the Administrator by the Funds or the Managing Owner. The Administrator shall also provide the Funds on a regular basis with the total number of the Funds’ Units authorized, issued and outstanding; provided however that the Administrator shall not be responsible for monitoring the issuance of such Units or compliance with any laws relating to the validity of the issuance or the legality of the sale of such Units.

 

PROSHARES TRUST II
By:    
Name:  
Title:  
PROSHARE CAPITAL MANAGEMENT LLC
By:    
Name:  
Title:  

 

17


APPENDIX C

ADMINISTRATIVE AGENCY AGREEMENT

List of Authorized Persons

Goldman Sachs Execution & Clearing L.P.

Merrill Lynch Professional Clearing Corp.

 

PROSHARES TRUST II
By:    
Name:  
Title:  
PROSHARE CAPITAL MANAGEMENT LLC
By:    
Name:  
Title:  
Date:  

 

18


APPENDIX D

ADMINISTRATIVE AGENCY AGREEMENT

AUTHORISED SOURCES

The Sponsor and Trust hereby acknowledge that the Administrator is authorized to use the following authorized sources and their successors and assigns for financial reporting and pricing (including corporate actions, dividends and rights offering), and foreign exchange quotations, to assist it in fulfilling its obligations under the aforementioned Agreement.

MARKIT

JP MORGAN

BLOOMBERG

RUSSELL/MELLON

EXTEL (LONDON)

FUND MANAGERS

INTERACTIVE DATA CORPORATION

REPUTABLE BROKERS

REUTERS

SUBCUSTODIAN BANKS

TELEKURS

VALORINFORM (GENEVA)

REPUTABLE FINANCIAL PUBLICATIONS

STOCK EXCHANGES

FINANCIAL INFORMATION INC. CARD

JJ KENNY

FRI CORPORATION

MORGAN STANLEY CAPITAL INTERNATIONAL

Other data source:

 

PROSHARES TRUST II
By:    
Name:  
Title:  
PROSHARE CAPITAL MANAGEMENT LLC
By:    
Name:  
Title:  

 

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Exhibit 10.3

Form of CUSTODIAN AGREEMENT

THIS AGREEMENT , dated as of                      between ProShares Trust II, a Delaware statutory trust (the “Trust”), for itself and on behalf of each of its series (each, a “Fund” and together, the “Funds”), and BROWN BROTHERS HARRIMAN & CO. , a limited partnership formed under the laws of the State of New York ( BBH&Co. or the Custodian ),

W I T N E S S E T H:

WHEREAS , the Trust wishes to appoint BBH&Co. to act as custodian for each of the Fund’s assets, and to provide related services, all as provided herein, and BBH&Co. is willing to accept such appointment, subject to the terms and conditions herein set forth;

NOW, THEREFORE , in consideration of the mutual covenants and agreements herein contained, the Trust and BBH&Co. hereby agree, as follows:

1. Appointment of Custodian. The Trust hereby appoints BBH&Co. as the custodian for each of the Fund’s assets, and BBH&Co. hereby accepts such appointment. All Investments of each Fund delivered to the Custodian or its agents or Subcustodians shall be dealt with as provided in this Agreement. The duties of the Custodian with respect to each Fund’s Investments shall be only as set forth expressly in this Agreement which duties are generally comprised of safekeeping and various administrative duties that will be performed in accordance with Instructions and as reasonably required to effect Instructions.

2. Representations, Warranties and Covenants of the Fund. The Trust hereby represents, warrants and covenants each of the following:

2.1 This Agreement has been, and at the time of delivery of each Instruction such Instruction will have been, duly authorized, executed and delivered by the Trust. This Agreement does not violate any Applicable Law or conflict with or constitute a default under the Trust’s registration statement on Form S-1 or other organic document, agreement, judgment, order or decree to which the Fund is a party or by which it or its Investments is bound.

2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country or Sovereign Risks and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund or any Customer under Applicable Law, and (c) appropriately and adequately disclosed to its shareholders, other investors and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction.

2.3 The Trust shall safeguard and shall solely be responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides it or its agents (such as the Trust’s Sponsor). In furtherance and not limitation of the foregoing, in the event the Trust utilizes any on-line service offered by the Custodian, the Trust and the Custodian shall be fully responsible for the security of each party’s connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Trust uses any on-line or similar communications service made available by the Custodian, the Trust shall be solely responsible for ensuring the security of its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Trust relating to the services described in this Agreement, the Trust will only use the software for the purposes for which the Custodian provided the software to the Trust, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Trust.

 

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2.5 Notwithstanding anything in this Agreement to contrary effect, the Trust specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement.

3. Representation and Warranty of BBH&Co. BBH&Co. hereby represents and warrants that this Agreement has been duly authorized, executed and delivered by BBH&Co. and does not and will not violate any Applicable Law or conflict with or constitute a default under BBH&Co.’s limited partnership agreement or any agreement, instrument, judgment, order or decree to which BBH&Co. is a party or by which it is bound.

4. Instructions. Unless otherwise explicitly indicated herein, the Custodian shall perform its duties pursuant to Instructions. As used herein, the term Instruction shall mean a directive initiated by the Trust, acting directly or through its officers or other Authorized Persons, which directive shall conform to the requirements of this Section 4.

4.1 Authorized Persons. For purposes hereof, an Authorized Person shall be a person or entity authorized to give Instructions for or on behalf of a Fund by written notices to the Custodian or otherwise in accordance with procedures delivered to and acknowledged by the Custodian, including without limitation the Trust’s Sponsor. The Custodian may treat any Authorized Person as having full authority of the Trust to issue Instructions hereunder unless the notice of authorization contains explicit limitations as to said authority. The Custodian shall be entitled to rely upon the authority of Authorized Persons until it receives appropriate written notice from the Trust to the contrary.

4.2 Form of Instruction. Each Instruction shall be transmitted by such secured or authenticated electro-mechanical means as the Custodian shall make available to the Trust from time to time unless the Trust shall elect to transmit such Instruction in accordance with Subsections 4.2.1 through 4.2.3 of this Section.

4.2.1 Trust Designated Secured-Transmission Method. Instructions may be transmitted through a secured or tested electro-mechanical means identified by the Trust or by an Authorized Person entitled to give Instruction and acknowledged and accepted by the Custodian; it being understood that such acknowledgment shall authorize the Custodian to receive and process such means of delivery but shall not represent a judgment by the Custodian as to the reasonableness or security of the method determined by the Authorized Person.

4.2.2 Written Instructions. Instructions may be transmitted in a writing that bears the manual signature of Authorized Persons.

4.2.3 Other Forms of Instruction. Instructions may also be transmitted by another means determined by the Trust or Authorized Persons and acknowledged and accepted by the Custodian (subject to the same limits as to acknowledgements as is contained in Subsection 4.2.1, above) including Instructions given orally or by SWIFT or telefax (whether tested or untested).

When an Instruction is given by means established under Subsections 4.2.1 through 4.2.3, it shall be the responsibility of the Custodian to use reasonable care to adhere to any security or other procedures established in writing between the Custodian and the Authorized Person with respect to such means of Instruction, but such Authorized Person shall be solely responsible for determining that the particular means chosen is reasonable under the circumstances. Oral Instructions shall be binding upon the Custodian only if and when the Custodian takes action with respect thereto. With respect to telefax instructions, the parties agree and acknowledge that receipt of legible instructions cannot be assured, that the Custodian cannot verify that authorized signatures on telefax instructions are original or properly affixed, and that the Custodian shall not be liable for losses or expenses incurred through actions taken in reliance on inaccurately stated, illegible or unauthorized telefax instructions. The provisions of Section 4A

 

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of the Uniform Commercial Code shall apply to Fund Transfers performed in accordance with Instructions. The Funds Transfer Services Schedule and the Electronic and Online Services Schedule to this Agreement shall each comprise a designation of form of a means of delivering Instructions for purposes of this Section 4.2.

4.3 Completeness and Contents of Instructions. The Authorized Person shall be responsible for assuring the adequacy and accuracy of Instructions. Particularly, upon any acquisition or disposition or other dealing in the Fund’s Investments and upon any delivery and transfer of any Investment or moneys, the person initiating such Instruction shall give the Custodian an Instruction with appropriate detail, including, without limitation:

4.3.1 The transaction date and the date and location of settlement;

4.3.2 The specification of the type of transaction;

4.3.3 A description of the Investments or moneys in question, including, as appropriate, quantity, price per unit, amount of money to be received or delivered and currency information. Where an Instruction is communicated by electronic means, or otherwise where an Instruction contains an identifying number such as a CUSIP, SEDOL or ISIN number, the Custodian shall be entitled to rely on such number as controlling notwithstanding any inconsistency contained in such Instruction, particularly with respect to Investment description; and

4.3.4 The name of the broker or similar entity concerned with execution of the transaction.

If the Custodian shall determine that an Instruction is either unclear or incomplete, the Custodian may give prompt notice of such determination to the Trust (via an Authorized Person), and the Trust shall thereupon amend or otherwise reform such Instruction. In such event, the Custodian shall have no obligation to take any action in response to the Instruction initially delivered until the redelivery of an amended or reformed Instruction.

4.4 Timeliness of Instructions. In giving an Instruction, the Trust shall take into consideration delays which may occur due to differences in time zones, and other factors particular to a given market, exchange or issuer. When the Custodian has established specific timing requirements or deadlines with respect to particular classes of Instruction, or when an Instruction is received by the Custodian at such a time that it could not reasonably be expected to have acted on such instruction due to time zone differences or other factors beyond its reasonable control, the execution of any Instruction received by the Custodian after such deadline or at such time (including any modification or revocation of a previous Instruction) shall be at the risk of the Trust.

5. Safekeeping of Fund Assets. The Custodian shall hold Investments delivered to it or Subcustodians for a Fund in accordance with the provisions of this Section. The Custodian shall not be responsible for (a) the safekeeping of Investments not delivered or that are not caused to be issued to it or its Subcustodians; or, (b) pre-existing faults or defects in Investments that are delivered to the Custodian, or its Subcustodians. The Custodian is hereby authorized to hold with itself or a Subcustodian, and to record in one or more accounts, all Investments delivered to and accepted by the Custodian, any Subcustodian or their respective agents pursuant to an Instruction or in consequence of any corporate action. The Custodian shall hold Investments for the account of a Fund and shall segregate Investments from assets belonging to the Custodian and shall cause its Subcustodians to segregate Investments from assets belonging to the Subcustodian in an account held for the Fund or in an account maintained by the Subcustodian generally for non-proprietary assets of the Custodian.

5.1 Use of Securities Depositories. The Custodian may deposit and maintain Investments in any Securities Depository, either directly or through one or more Subcustodians appointed by the Custodian. Investments held in a Securities Depository shall be held (a) subject to the agreement, rules, statement of

 

3


terms and conditions or other document or conditions effective between the Securities Depository and the Custodian or the Subcustodian, as the case may be, and (b) in an account for the Fund or in bulk segregation in an account maintained for the non-proprietary assets of the entity holding such Investments in the Depository. If market practice or the rules and regulations of the Securities Depository prevent the Custodian, the Subcustodian or (any agent of either) from holding its client assets in such a separate account, the Custodian, the Subcustodian or other agent shall as appropriate segregate such Investments for benefit of the Fund or for the benefit of clients of the Custodian generally on its own books.

5.2 Certificated Assets. Investments which are certificated may be held in registered or bearer form: (a) in the Custodian’s vault; (b) in the vault of a Subcustodian or agent of the Custodian or a Subcustodian; or (c) in an account maintained by the Custodian, Subcustodian or agent at a Securities Depository; all in accordance with customary market practice in the jurisdiction in which any Investments are held.

5.3 Registered Assets . Investments which are registered may be registered in the name of the Custodian, a Subcustodian, or in the name of a Fund or a nominee for any of the foregoing, and may be held in any manner set forth in paragraph 5.2 above with or without any identification of fiduciary capacity in such registration.

5.4 Book Entry Assets. Investments which are represented by book-entry may be so held in an account maintained by the Book-entry Agent on behalf of the Custodian, a Subcustodian or another agent of the Custodian, or a Securities Depository.

5.5 Replacement of Lost Investments. In the event of a loss of Investments for which the Custodian is responsible under the terms of this Agreement, the Custodian shall replace such Investment at current market values, or in the event that such replacement cannot be effected, the Custodian shall pay to the Fund the fair market value of such Investment based on the last available price as of the close of business in the relevant market on the date that a claim was first made to the Custodian with respect to such loss, or, if less, such other amount as shall be agreed by the parties as the date for settlement.

6. Administrative Duties of the Custodian. The Custodian shall perform the following administrative duties with respect to Investments of a Fund.

6.1 Purchase of Investments. Pursuant to Instruction, Investments purchased for the account of a Fund shall be paid for (a) against delivery thereof to the Custodian or a Subcustodian, as the case may be, either directly or through a Clearing Corporation or a Securities Depository (in accordance with the rules of such Securities Depository or such Clearing Corporation), or (b) otherwise in accordance with an Instruction, Applicable Law, generally accepted trade practices, or the terms of the instrument representing such Investment.

6.2 Sale of Investments. Pursuant to Instruction, Investments sold for the account of a Fund shall be delivered (a) against payment therefor in cash, by check or by bank wire transfer, (b) by credit to the account of the Custodian or the applicable Subcustodian, as the case may be, with a Clearing Corporation or a Securities Depository (in accordance with the rules of such Securities Depository or such Clearing Corporation), or (c) otherwise in accordance with an Instruction, Applicable Law, generally accepted trade practices, or the terms of the instrument representing such Investment.

6.3 Delivery and Receipt in Connection with Borrowings of a Fund or other Collateral and Margin Requirements. Pursuant to Instruction, the Custodian may deliver or receive Investments or cash of a Fund in connection with borrowings or loans by the Fund and other collateral and margin requirements.

6.4 Futures and Options. If, pursuant to an Instruction, the Custodian shall become a party to an agreement with a Fund and a futures commission merchant regarding margin ( Tri-Party Agreement ), the Custodian shall (a) receive and retain, to the extent the same are provided to the Custodian,

 

4


confirmations or other documents evidencing the purchase or sale by the Fund of exchange-traded futures contracts and commodity options, (b) when required by such Tri-Party Agreement, deposit and maintain in an account opened pursuant to such Agreement ( Margin Account ), segregated either physically or by book-entry in a Securities Depository for the benefit of any futures commission merchant, such Investments as the Fund shall have designated as initial, maintenance or variation “margin” deposits or other collateral intended to secure the Fund’s performance of its obligations under the terms of any exchange-traded futures contracts and commodity options; and (c) thereafter pay, release or transfer Investments into or out of the margin account in accordance with the provisions of the such Agreement. Alternatively, the Custodian may deliver Investments, in accordance with an Instruction, to a futures commission merchant for purposes of margin requirements in accordance with Rule 17f-6. The Custodian shall in no event be responsible for the acts and omissions of any futures commission merchant to whom Investments are delivered pursuant to this Section; for the sufficiency of Investments held in any Margin Account; or, for the performance of any terms of any exchange-traded futures contracts and commodity options.

6.5 Contractual Obligations and Similar Investments. From time to time, a Fund’s Investments may include Investments that are not ownership interests as may be represented by certificate (whether registered or bearer), by entry in a Securities Depository or by book entry agent, registrar or similar agent for recording ownership interests in the relevant Investment. If the Fund shall at any time acquire such Investments, including without limitation deposit obligations, loan participations, repurchase agreements and derivative arrangements, the Custodian shall (a) receive and retain, to the extent the same are provided to the Custodian, confirmations or other documents evidencing the arrangement; and (b) perform on the Fund’s account in accordance with the terms of the applicable arrangement, but only to the extent directed to do so by Instruction. The Custodian shall have no responsibility for agreements running to the Fund as to which it is not a party other than to retain, to the extent the same are provided to the Custodian, documents or copies of documents evidencing the arrangement and, in accordance with Instruction, to include such arrangements in reports made to the Fund.

6.6 Exchange of Securities. Unless otherwise directed by Instruction, the Custodian shall: (a) exchange securities held for the account of a Fund for other securities in connection with any reorganization, recapitalization, conversion, split-up, change of par value of shares or similar event, and (b) deposit any such securities in accordance with the terms of any reorganization or protective plan.

6.7 Surrender of Securities. Unless otherwise directed by Instruction, the Custodian may surrender securities: (a) in temporary form for definitive securities; (b) for transfer into the name of an entity allowable under Section 5.3; and (c) for a different number of certificates or instruments representing the same number of shares or the same principal amount of indebtedness.

6.8 Rights, Warrants, Etc. Pursuant to Instruction, the Custodian shall (a) deliver warrants, puts, calls, rights or similar securities to the issuer or trustee thereof, or to any agent of such issuer or trustee, for purposes of exercising such rights or selling such securities, and (b) deposit securities in response to any invitation for the tender thereof.

6.9 Mandatory Corporate Actions. Unless otherwise directed by Instruction, the Custodian shall: (a) comply with the terms of all mandatory or compulsory exchanges, calls, tenders, redemptions or similar rights of securities ownership affecting securities held on a Fund’s account and promptly notify the Fund of such action, and (b) collect all stock dividends, rights and other items of like nature with respect to such securities.

6.10 Income Collection. Unless otherwise directed by Instruction, the Custodian shall collect any amount due and payable to the Fund with respect to Investments and promptly credit the amount collected to a Principal or Agency Account; provided, however, that the Custodian shall not be responsible for: (a) the collection of amounts due and payable with respect to Investments that are in default, or (b) the collection of cash or share entitlements with respect to Investments that are not registered in the name of the Custodian or its Subcustodians. The Custodian is hereby authorized to endorse and deliver any instrument required to be so endorsed and delivered to effect collection of any amount due and payable to the Fund with respect to Investments.

 

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6.11 Ownership Certificates and Disclosure of a Fund’s Interest . The Custodian is hereby authorized to execute on behalf of the Fund ownership certificates, affidavits or other disclosure required under Applicable Law or established market practice in connection with the receipt of income, capital gains or other payments by the Fund with respect to Investments, or in connection with the sale, purchase or ownership of Investments.

With respect to securities issued in the United States of America, the Custodian [            ] may [            ] may not release the identity of the Fund to an issuer which requests such information pursuant to the Shareholder Communications Act of 1985 for the specific purpose of direct communications between such issuer and the Fund. IF NO BOX IS CHECKED, THE CUSTODIAN SHALL RELEASE SUCH INFORMATION UNTIL IT RECEIVES CONTRARY INSTRUCTIONS FROM THE FUND. With respect to securities issued outside of the United States of America, information shall be released in accordance with law or custom of the particular country in which such security is located.

6.12 Proxy Materials. The Custodian shall deliver, or cause to be delivered, to a Fund proxy forms, notices of meeting, and any other notices or announcements materially affecting or relating to Investments received by the Custodian or any nominee.

6.13 Taxes. The Custodian shall, where applicable, assist a Fund in the reclamation of taxes withheld on dividends and interest payments received by the Fund. In the performance of its duties with respect to tax withholding and reclamation, the Custodian shall be entitled to rely on the advice of counsel and upon information and advice regarding the Fund’s tax status that is received from or on behalf of the Fund without duty of separate inquiry.

6.14 Other Dealings. The Custodian shall otherwise act as directed by Instruction, including without limitation effecting the free payments of moneys or the free delivery of securities, provided that such Instruction shall indicate the purpose of such payment or delivery and that the Custodian shall record the party to whom such payment or delivery is made.

The Custodian shall attend to all nondiscretionary details in connection with the sale or purchase or other administration of Investments, except as otherwise directed by an Instruction, and may make payments to itself or others for minor expenses of administering Investments under this Agreement; provided that a Fund shall have the right to request an accounting with respect to such expenses.

In fulfilling the duties set forth in Sections 6.6 through 6.10 above, the Custodian shall provide to the Fund all material information pertaining to a corporate action which the Custodian actually receives; provided that the Custodian shall not be responsible for the completeness or accuracy of such information. Information relative to any pending corporate action made available to the Fund via any of the services described in the Electronic and Online Services Schedule shall constitute the delivery of such information by the Custodian hereunder. Any advance credit of cash or shares expected to be received as a result of any corporate action shall be subject to actual collection and may, when the Custodian deems collection unlikely, be reversed by the Custodian.

The Custodian may at any time or times in its discretion appoint (and may at any time remove) agents (other than Subcustodians) to carry out some or all of the administrative provisions of this Agreement ( Agents ), provided, however, that the appointment of such agent shall not relieve the Custodian of its administrative obligations under this Agreement.

7. Cash Accounts, Deposits and Money Movements. Subject to the terms and conditions set forth in this Section 7, each Fund hereby authorizes the Custodian to open and maintain, with itself or with Subcustodians, cash accounts in United States Dollars, in such other currencies as are the currencies of the countries in which each such Fund maintains Investments or in such other currencies as the Fund shall from time to time request by Instruction.

 

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7.1 Types of Cash Accounts . Cash accounts opened on the books of the Custodian ( Principal Accounts ) shall be opened in the name of a Fund. Such accounts collectively shall be a deposit obligation of the Custodian and shall be subject to the terms of this Section 7 and the general liability provisions contained in Section 9. Cash accounts opened on the books of a Subcustodian may be opened in the name of the Fund or the Custodian or in the name of the Custodian for its customers generally ( Agency Accounts ). Such deposits shall be obligations of the Subcustodian and shall be treated as an Investment of the Fund. Accordingly, the Custodian shall be responsible for exercising reasonable care in the administration of such accounts but shall not be liable for their repayment in the event such Subcustodian, by reason of its bankruptcy, insolvency or otherwise, fails to make repayment.

7.1.1. Administrative Accounts. In connection with the services provided hereunder, the Custodian is hereby directed to open cash accounts on its books and records from time to time for the purposes of receiving subscriptions and/or processing redemptions on behalf of a Fund and/or for the purposes of aggregating, netting and/or clearing transactions (including, without limitation foreign exchange, repurchase agreements, capital stock activity, expense payment) or other administrative purposes, each on behalf of the Fund (each an “Account”). Each such Account shall be subject to the terms and conditions of this Agreement and the Fund shall be liable for the satisfaction of its obligations in connection with each Account.

7.2 Payments and Credits with Respect to the Cash Accounts . The Custodian shall make payments from or deposits to any of said accounts in the course of carrying out its administrative duties, including but not limited to income collection with respect to a Fund’s Investments, and otherwise in accordance with Instructions. The Custodian and its Subcustodians shall be required to credit amounts to the cash accounts only when moneys are actually received in cleared funds in accordance with banking practice in the country and currency of deposit. Any credit made to any Principal or Agency Account before actual receipt of cleared funds shall be provisional and may be reversed by the Custodian in the event such payment is not actually collected. Unless otherwise specifically agreed in writing by the Custodian or any Subcustodian, all deposits shall be payable only at the branch of the Custodian or Subcustodian where the deposit is made or carried.

7.3 Currency and Related Risks. A Fund bears risks of holding or transacting in any currency, including any mark to market exposure associated with a foreign exchange transaction undertaken with the Custodian. The Custodian shall not be liable for any loss or damage arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, which may delay or affect the transferability, convertibility or availability of any currency in the country (a) in which such Principal or Agency Accounts are maintained or (b) in which such currency is issued, and in no event shall the Custodian be obligated to make payment of a deposit denominated in a currency during the period during which its transferability, convertibility or availability has been affected by any such law, regulation or event. Without limiting the generality of the foregoing, neither the Custodian nor any Subcustodian shall be required to repay any deposit made at a foreign branch of either the Custodian or Subcustodian if such branch cannot repay the deposit due to a cause for which the Custodian would not be responsible in accordance with the terms of Section 9 of this Agreement unless the Custodian or such Subcustodian expressly agrees in writing to repay the deposit under such circumstances. All currency transactions in any account opened pursuant to this Agreement are subject to exchange control regulations of the United States and of the country where such currency is the lawful currency or where the account is maintained. Any taxes, costs, charges or fees imposed on the convertibility of a currency held by the Fund shall be for the account of the Fund.

7.4 Foreign Exchange Transactions . The Custodian shall, subject to the terms of this Section, settle foreign exchange transactions (including contracts, futures, options and options on futures) on behalf and for the account of a Fund with such currency brokers or banking institutions, including Subcustodians, as the Fund may direct pursuant to Instructions. The Custodian may act as principal in any foreign exchange transaction with the Fund in accordance with Section 7.4.2 of this Agreement. The obligations

 

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of the Custodian in respect of all foreign exchange transactions (whether or not the Custodian shall act as principal in such transaction) shall be contingent on the free, unencumbered transferability of the currency transacted on the actual settlement date of the transaction.

7.4.1 Third Party Foreign Exchange Transactions . The Custodian shall process foreign exchange transactions (including without limitation contracts, futures, options, and options on futures), where any third party acts as principal counterparty to a Fund on the same basis it performs duties as agent for the Fund with respect to any other of the Fund’s Investments. Accordingly, the Custodian shall only be responsible for delivering or receiving currency on behalf of the Fund in respect of such contracts pursuant to Instructions. The Custodian shall not be responsible for the failure of any counterparty (including any Subcustodian) in such agency transaction to perform its obligations thereunder. The Custodian (a) shall transmit cash and Instructions to and from the currency broker or banking institution with which a foreign exchange contract or option has been executed pursuant hereto, (b) may make free outgoing payments of cash in the form of Dollars or foreign currency without receiving confirmation of a foreign exchange contract or option or confirmation that the countervalue currency completing the foreign exchange contract has been delivered or received or that the option has been delivered or received, and (c) shall hold all confirmations, certificates and other documents and agreements received by the Custodian and evidencing or relating to such foreign exchange transactions in safekeeping. The Fund accepts full responsibility for its use of third-party foreign exchange dealers and for execution of said foreign exchange contracts and options and understands that the Fund shall be responsible for any and all costs and interest charges which may be incurred by the Fund or the Custodian as a result of the failure or delay of third parties to deliver foreign exchange.

7.4.2 Foreign Exchange with the Custodian as Principal . The Custodian may as principal undertake foreign exchange transactions with a Fund as the Custodian and the Fund may agree from time to time. In such event, the foreign exchange transaction will be performed in accordance with the particular agreement of the parties, or in the event a principal foreign exchange transaction is initiated by Instruction in the absence of specific agreement, such transaction will be performed in accordance with the usual commercial terms of the Custodian. In the event that the Fund defaults on the settlement of any such foreign exchange transaction with the Custodian, the Fund shall be liable for contracted currency of the transaction together with any mark to market exposure associated with the replacement purchase of the contracted currency undertaken with the Custodian.

7.5 Delays . If no event of Force Majeure shall have occurred and be continuing and in the event that a delay shall have been caused by the negligence or willful misconduct of the Custodian in carrying out an Instruction to credit or transfer cash, the Custodian shall be liable to a Fund: (a) with respect to Principal Accounts, for interest to be calculated at the rate customarily paid on such deposit and currency by the Custodian on overnight deposits at the time the delay occurs for the period from the day when the transfer should have been effected until the day it is in fact effected; and, (b) with respect to Agency Accounts, for interest to be calculated at the rate customarily paid on such deposit and currency by the Subcustodian on overnight deposits at the time the delay occurs for the period from the day when the transfer should have been effected until the day it is in fact effected. The Custodian shall not be liable for delays in carrying out such Instructions to transfer cash which are not due to the Custodian’s own negligence or willful misconduct.

7.6 Advances. If, for any reason in connection with this Agreement the Custodian or any Subcustodian makes an Advance to facilitate settlement or otherwise for the benefit of a Fund (whether or not any Principal or Agency Account shall be overdrawn either during, or at the end of, any Business Day), the Trust, on behalf of any such Fund, hereby does:

7.6.1 acknowledge that the Fund shall have no right or title to any Investments purchased with such Advance or proceeds of such Investments, and that any credit to the account of the Fund shall be

 

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provisional until: (a) the debit of the Principal or Agency Account by the Custodian for an amount equal to Advance Costs and/or, (b) if such debit would produces an overdraft in such account, reimbursement to the Custodian or Subcustodian for the amount of such overdraft;

7.6.2 acknowledge that the Custodian has automatically perfected statutory security interest in Investments purchased with any such Advance pursuant to Section 9-206 of the Uniform Commercial Code as in effect in the State of New York from time to time;

7.6.3 in addition, in order to secure the obligations of the Fund to pay or perform any and all obligations of the Fund pursuant to this Agreement, including without limitation to repay any Advance made pursuant to this Agreement grant to the Custodian a security interest in Investments and proceeds thereof (as defined in the Uniform Commercial Code as currently in effect in the State of New York); and agree to take and agree that the Custodian may take, in respect of the security interest referenced above, any further actions that the Custodian may reasonably require.

Neither the Custodian nor any Subcustodian shall be obligated to make any Advance or to allow an Advance to occur to the Fund, and in the event that the Custodian or any Subcustodian does make or allow an Advance, any such Advance and any transaction giving rise to such Advance shall be for the account and risk of the Fund and shall not be deemed to be a transaction undertaken by the Custodian for its own account and risk. If such Advance shall have been made or allowed by a Subcustodian or any other person, the Custodian may assign all or part of its security interest referenced above and any other rights granted to the Custodian hereunder to such Subcustodian or other person. If the Fund shall fail to repay the Advance Costs when due, the Custodian or its assignee, as the case may be, shall be entitled to a portion of the available cash balance in any Agency or Principal Account equal to such Advance Costs, and the Fund authorizes the Custodian to pay an amount equal to such Advance Costs irrevocably to such Subcustodian or other person, and to dispose of Investments to the extent necessary to make such payment. Any Investments and funds credited to accounts subject to this Agreement created pursuant hereto shall be treated as financial assets credited to securities accounts under Articles 8 and 9 of the Uniform Commercial Code as in effect in the State of New York from time to time. Accordingly, the Custodian and any Subcustodian shall have the rights and benefits of a secured creditor that is a securities intermediary under such Articles 8 and 9.

7.7 Integrated Account . For purposes hereof, deposits maintained in all Principal Accounts of a Fund (whether or not denominated in Dollars) shall collectively constitute a single and indivisible current account with respect to that Fund’s obligations to the Custodian, or its assignee, and balances in such Fund’s Principal Accounts shall be available for satisfaction of the Fund’s obligations under this Section 7. The Custodian shall further have a right of offset against the balances in any Agency Account maintained for that Fund hereunder to the extent that the aggregate of all Principal Accounts is overdrawn.

8. Subcustodians and Securities Depositories. Subject to the provisions hereinafter set forth in this Section 8, the Trust, on behalf of each Fund, hereby authorizes the Custodian to utilize Securities Depositories to act on behalf of each such Fund and to appoint from time to time and to utilize Subcustodians. With respect to securities and funds held by a Subcustodian, either directly or indirectly (including by a Securities Depository or Clearing Corporation), notwithstanding any provisions of this Agreement to the contrary, payment for securities purchased and delivery of securities sold may be made prior to receipt of securities or payment, respectively, and securities or payment may be received in a form, in accordance with (a) governmental regulations, (b) rules of Securities Depositories and clearing agencies, (c) generally accepted trade practice in the applicable local market, (d) the terms and characteristics of the particular Investment, or (e) the terms of Instructions.

8.1 Domestic Subcustodians and Securities Depositories . The Custodian may deposit and/or maintain, either directly or through one or more agents appointed by the Custodian, Investments of a Fund in any Securities Depository in the United States, including The Depository Trust Company, provided such Depository meets applicable requirements of the Federal Reserve Bank or of the Securities and Exchange

 

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Commission. The Custodian may, at any time and from time to time, appoint any bank meeting the requirements of a custodian and the rules and regulations thereunder, to act on behalf of the Fund as a Subcustodian for purposes of holding Investments of the Fund in the United States.

8.2 Foreign Subcustodians and Securities Depositories . The Custodian may deposit and/or maintain non-U.S. Investments of a Fund in any non-U.S. Securities Depository. Additionally, the Custodian may, at any time and from time to time, appoint any bank, trust company or other similar entity that is regulated as such in the country in which it offers banking, trust or custodial services, to act on behalf of the Fund as a Subcustodian for purposes of holding Investments of the Fund outside the United States. Such appointment of foreign Subcustodians shall be subject to approval of the Fund which approval shall be evidenced by the Fund’s receipt of the Global Custody Network Listing as the same may from time to time be updated.

8.3 Responsibility for Subcustodians . Except as provided in the last sentence of this Section 8.3, the Custodian shall be liable to a Fund for any loss or damage to the Fund caused by or resulting from the acts or omissions of any Subcustodian to the extent that such acts or omissions would be deemed to be negligence, gross negligence or willful misconduct in accordance with the terms of the relevant subcustodian agreement under the laws, circumstances and practices prevailing in the place where the act or omission occurred. The liability of the Custodian in respect of the countries and subcustodians so designated by the Custodian, from time to time, on the Global Custody Network Listing, shall be subject to the additional condition that the Custodian actually recovers such loss or damage from the Subcustodian.

8.4 New Countries. A Fund shall be responsible for informing the Custodian sufficiently in advance of a proposed investment which is to be held in a country in which no Subcustodian is authorized to act in order that the Custodian shall, if it deems appropriate to do so, have sufficient time to establish a subcustodial arrangement in accordance herewith. In the event, however, the Custodian is unable to establish such arrangements prior to the time such investment is to be acquired, the Custodian is authorized to designate at its discretion a local safekeeping agent, and the use of such local safekeeping agent shall be at the sole risk of the Fund, and accordingly the Custodian shall be responsible to the Fund for the actions of such agent if and only to the extent the Custodian shall have recovered from such agent for any damages caused the Fund by such agent.

9. Responsibility of the Custodian. In performing its duties and obligations hereunder, the Custodian shall use reasonable care under the facts and circumstances prevailing in the market where performance is effected. Subject to the specific provisions of this Section, the Custodian shall be liable for any direct damage incurred by the Fund in consequence of the Custodian’s negligence, bad faith or willful misconduct. In no event shall the Custodian be liable hereunder for any special, indirect, punitive or consequential damages arising out of, pursuant to or in connection with this Agreement even if the Custodian has been advised of the possibility of such damages. It is agreed that the Custodian shall have no duty to assess the risks inherent in the Fund’s Investments or to provide investment advice with respect to such Investments and that the Fund as principal shall bear any risks attendant to particular Investments such as failure of counterparty or issuer.

9.1 Limitations of Performance . The Custodian shall not be responsible under this Agreement for any failure to perform its duties, and shall not be liable hereunder for any loss or damage in association with such failure to perform, for or in consequence of the following causes:

9.1.1 Force Majeure. Force Majeure shall mean any circumstance or event which is beyond the reasonable control of the Custodian, a Subcustodian or any agent of the Custodian or a Subcustodian and which adversely affects the performance by the Custodian of its obligations hereunder, by the Subcustodian of its obligations under its Subcustody Agreement or by any other agent of the Custodian or the Subcustodian, including any event caused by, arising out of or involving (a) an act of God, (b) accident, fire, water damage or explosion, (c) any computer, system or other equipment failure or malfunction caused by any computer virus or the malfunction or failure of any communications medium, (d) any interruption of the power supply or other utility service, (e) any strike or other work stoppage, whether partial or total, (f) any delay or disruption

 

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resulting from or reflecting the occurrence of any Sovereign Risk, (g) any disruption of, or suspension of trading in, the securities, commodities or foreign exchange markets, whether or not resulting from or reflecting the occurrence of any Sovereign Risk, (h) any encumbrance on the transferability of a currency or a currency position on the actual settlement date of a foreign exchange transaction, whether or not resulting from or reflecting the occurrence of any Sovereign Risk, or (i) any other cause similarly beyond the reasonable control of the Custodian.

9.1.2 Country Risk. Country Risk shall mean, with respect to the acquisition, ownership, settlement or custody of Investments in a jurisdiction, all risks relating to, or arising in consequence of, systemic and markets factors affecting the acquisition, payment for or ownership of Investments including (a) the prevalence of crime and corruption, (b) the inaccuracy or unreliability of business and financial information, (c) the instability or volatility of banking and financial systems, or the absence or inadequacy of an infrastructure to support such systems, (d) custody and settlement infrastructure of the market in which such Investments are transacted and held, (e) the acts, omissions and operation of any Securities Depository, (f) the risk of the bankruptcy or insolvency of banking agents, counterparties to cash and securities transactions, registrars or transfer agents, and (g) the existence of market conditions which prevent the orderly execution or settlement of transactions or which affect the value of assets.

9.1.3 Sovereign Risk. Sovereign Risk shall mean, in respect of any jurisdiction, including the United States of America, where Investments are acquired or held hereunder or under a Subcustody Agreement, (a) any act of war, terrorism, riot, insurrection or civil commotion, (b) the imposition of any investment, repatriation or exchange control restrictions by any Governmental Authority, (c) the confiscation, expropriation or nationalization of any Investments by any Governmental Authority, whether de facto or de jure, (iv) any devaluation or revaluation of the currency, (d) the imposition of taxes, levies or other charges affecting Investments, (vi) any change in the Applicable Law, or (e) any other economic or political risk incurred or experienced.

9.2 Limitations on Liability. The Custodian shall not be liable for any loss, claim, damage or other liability arising from the following causes:

9.2.1 Failure of Third Parties. The failure of any third party including: (a) any issuer of Investments or book-entry or other agent of and issuer; (b) any counterparty with respect to any Investment, including any issuer of exchange-traded or other futures, option, derivative or commodities contract; (c) failure of an Investment Advisor, Foreign Custody Manager or other agent of the Fund; or (d) failure of other third parties similarly beyond the control or choice of the Custodian.

9.2.2 Information Sources. The Custodian may rely upon information received from issuers of Investments or agents of such issuers, information received from Subcustodians and from other commercially reasonable sources such as commercial data bases and the like, but shall not be responsible for specific inaccuracies in such information, provided that the Custodian has relied upon such information in good faith, or for the failure of any commercially reasonable information provider.

9.2.3 Reliance on Instruction . Action by the Custodian or the Subcustodian in accordance with an Instruction, even when such action conflicts with, or is contrary to any provision of, the Fund’s declaration of trust, certificate of incorporation or by-laws, Applicable Law, or actions by the trustees, directors or shareholders of the Fund.

9.2.4 Restricted Securities. The limitations inherent in the rights, transferability or similar investment characteristics of a given Investment of the Fund.

 

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10. Indemnification. The Trust, on behalf of each Fund, hereby indemnifies the Custodian and each Subcustodian, and their respective agents, nominees and the partners, employees, officers and directors, and agrees to hold each of them harmless from and against all claims and liabilities, including counsel fees and taxes, incurred or assessed against any of them in connection with the performance of this Agreement and any Instruction, except for any claims and liabilities arising out of the Custodian’s or Subcustodian’s negligence, reckless disregard of its duties or willful misfeasance. If a Subcustodian or any other person indemnified under the preceding sentence, gives written notice of claim to the Custodian, the Custodian shall promptly give written notice to the Fund. Not more than thirty days following the date of such notice, unless the Custodian shall be liable under Section 8 hereof in respect of such claim, the Fund will pay the amount of such claim or reimburse the Custodian for any payment made by the Custodian in respect thereof.

The Custodian, hereby indemnifies the Trust, on behalf of each Fund and agrees to hold them harmless from and against all claims and liabilities, including counsel fees and taxes, incurred or assessed against any of them in connection with the negligent performance of this Agreement and any Instruction, except for any claims and liabilities arising out of the Trust’s, on behalf of each Fund own negligence, reckless disregard of its duties or willful misfeasance.

11. Reports and Records. The Custodian shall:

11.1 create and maintain records relating to the performance of its obligations under this Agreement;

11.2 make available to a Fund, its auditors, agents and employees, upon reasonable request and during normal business hours of the Custodian, all records maintained by the Custodian pursuant to paragraph 11.1 above, subject, however, to all reasonable security requirements of the Custodian then applicable to the records of its custody customers generally; and

11.3 make available to a Fund all Electronic Reports; it being understood that the Custodian shall not be liable hereunder for the inaccuracy or incompleteness thereof or for errors in any information included therein.

The Trust, on behalf of each Fund, shall examine all records, howsoever produced or transmitted, promptly upon receipt thereof and notify the Custodian promptly of any discrepancy or error therein. Unless the Trust delivers written notice of any such discrepancy or error within a reasonable time after its receipt thereof, such records shall be deemed to be true and accurate. It is understood that the Custodian now obtains and will in the future obtain information on the value of assets from outside sources which may be utilized in certain reports made available to the Trust. The Custodian deems such sources to be reliable but it is acknowledged and agreed that the Custodian does not verify nor represent nor warrant as to the accuracy or completeness of such information and accordingly shall be without liability in selecting and using such sources and furnishing such information.

12. Miscellaneous.

12.1 Proxies, etc. The Trust will promptly execute and deliver, upon request, such proxies, powers of attorney or other instruments as may be necessary or desirable for the Custodian to provide, or to cause any Subcustodian to provide, custody services.

12.2 Entire Agreement. Except for the agreement previously executed between the Custodian and the Sponsor of the Funds and as specifically provided herein, this Agreement constitutes the entire agreement between the Trust, on behalf of each Fund, and the Custodian with respect to the subject matter hereof. Accordingly, this Agreement supersedes any custody agreement or other oral or written agreements heretofore in effect with respect to the custody of a Fund’s Investments.

 

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12.3 Waiver, Amendment, and Assignment. No provision of this Agreement may be waived, amended or modified, and no addendum to this Agreement shall be or become effective, or be waived, amended or modified, except by an instrument in writing executed by the party against which enforcement of such waiver, amendment or modification is sought; provided, however, that an Instruction shall, whether or not such Instruction shall constitute a waiver, amendment or modification for purposes hereof, be deemed to have been accepted by the Custodian when it commences actions pursuant thereto or in accordance therewith. This Agreement shall be binding upon and shall inure to the benefit of the parties and their successors and assignees, provided that either party may not assign this Agreement without the prior written consent of the other party.

12.4 GOVERNING LAW, JURISDICTION AND VENUE. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND BE GOVERNED BY THE LAWS OF, THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW OF SUCH STATE. THE PARTIES HERETO IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS LOCATED IN NEW YORK CITY IN THE BOROUGH OF MANHATTAN. THE PARTIES HERETO IRREVOCABLY WAIVE ANY OBJECTION THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING IN ANY OF THE AFORESAID COURTS AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

12.5 Notices. Notices and other writings contemplated by this Agreement, other than Instructions, shall be delivered (a) by hand, (b) by first class registered or certified mail, postage prepaid, return receipt requested, (c) by a nationally recognized overnight courier, or (d) by facsimile transmission, provided that any notice or other writing sent by facsimile transmission shall also be mailed, postage prepaid, to the party to whom such notice is addressed. All such notices shall be addressed, as follows:

If to the Trust:

ProShares Trust II

7501 Wisconsin Avenue

Suite 1000 – East Tower

Bethesda, MD 20814

Attn:

Telephone:             240-497-6400

Facsimile

If to the Custodian:

Brown Brothers Harriman & Co.

40 Water Street

Boston, Massachusetts 02109

Attn: Manager, Securities Department

Telephone:         (617) 772-1818

Facsimile:          (617) 772-2263,

or such other address as the Fund or the Custodian may have designated in writing to the other.

12.6 Headings. Paragraph headings included herein are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions hereof.

12.7 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. This Agreement shall become effective when one or more counterparts have been signed and delivered by the Trust and the Custodian.

 

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12.8 Confidentiality. The parties hereto agree that each shall treat confidentially the terms and conditions of this Agreement and all information provided by each party to the other regarding its business and operations. All confidential information provided by a party hereto shall be used by any other party hereto solely for the purpose of rendering or obtaining services pursuant to this Agreement and, except as may be required in carrying out this Agreement, shall not be disclosed to any third party without the prior consent of such providing party. The foregoing shall not be applicable to any information that is publicly available when provided or thereafter becomes publicly available other than through a breach of this Agreement, or that is required to be disclosed by or to any bank examiner of the Custodian or any Subcustodian, any Regulatory Authority, any auditor of the parties hereto, or by judicial or administrative process or otherwise by Applicable Law.

12.9 Counsel . In fulfilling its duties hereunder, the Custodian shall be entitled to receive and act upon the advice of counsel regularly retained by the Custodian in respect of such matters, (ii) counsel for the Fund or (iii) such counsel as the Fund and the Custodian may agree upon, with respect to all matters.

12.10 Conflict. Nothing contained in this Agreement shall prevent the Custodian and its associates from (i) dealing as a principal or an intermediary in the sale, purchase or loan of the Fund’s Investments to, or from the Custodian or its associates; (ii) buying, holding, lending, and dealing in any way in any assets for the benefit of its own account, or for the account of any other client whose interests may be adverse to the Fund notwithstanding that the same or similar assets may be held or dealt in by, or for the account of the Fund by the Custodian. The Fund hereby voluntarily consents to, and waives any potential conflict of interest between the Custodian and/or its associates and the Fund, and agrees that:

12.10.1 the Custodian’s and/or its associates’ engagement in any such transaction shall not disqualify the Custodian from continuing to perform as the custodian of the Fund under this Agreement;

12.10.2 the Custodian and/or its associates shall not be liable to account to the Fund for any profits or benefits made or derived by or in connection with any such transaction; and

13. Definitions. The following defined terms will have the respective meanings set forth below.

13.1 Advance(s) shall mean any extension of credit by or through the Custodian or by or through any Subcustodian and shall include, without limitation, amounts due to the Custodian as the principal counterparty to any foreign exchange transaction with the Fund as described in Section 7.4.2 hereof, or paid to third parties for account of the Fund or in discharge of any expense, tax or other item payable by the Fund.

Advance Costs shall mean any Advance, interest on the Advance and any related expenses, including without limitation any mark to market loss of the Custodian or Subcustodian on any Investment to which 7.6.1 applies.

13.2 Agency Account(s) shall mean any deposit account opened on the books of a Subcustodian or other banking institution in accordance with Section 7.1.

13.3 Agent(s) shall have the meaning set forth in the last system of Section 6.

13.4 Applicable Law shall mean with respect to each jurisdiction, all (a) laws, statutes, treaties, regulations, guidelines (or their equivalents); (b) orders, interpretations, licenses and permits; and (c) judgments, decrees, injunctions, writs, orders and similar actions by a court of competent jurisdiction; compliance with which is required or customarily observed in such jurisdiction.

 

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13.5 Authorized Person(s) shall mean any person or entity authorized to give Instructions on behalf of the Fund in accordance with Section 4.1.

13.6 Book-entry Agent shall mean an entity acting as agent for the issuer of Investments for purposes of recording ownership or similar entitlement to Investments, including without limitation a transfer agent or registrar.

13.7 Clearing Corporation shall mean any entity or system established for purposes of providing securities settlement and movement and associated functions for a given market.

13.8 Electronic and Online Services Schedule shall mean any separate agreement entered into between the Custodian and the Fund or its authorized representative with respect to certain matters concerning certain electronic and online services as described therein and as may be made available from time to time by the Custodian to the Fund.

13.9 Electronic Reports shall mean any reports prepared by the Custodian and remitted to the Fund or its authorized representative via the internet or electronic mail.

13.10 Funds Transfer Services Schedule shall mean any separate agreement entered into between the Custodian and the Fund or its authorized representative with respect to certain matters concerning the processing of payment orders from Principal Accounts of the Fund.

13.11 Instruction(s) shall have the meaning assigned in Section 4.

13.13 Investment(s) shall mean any investment asset of the Fund, including without limitation: securities, bonds, notes, and debentures as well as receivables, derivatives, contractual rights or entitlements and other intangible assets.

13.14 Margin Account shall have the meaning set forth in Section 6.4 hereof.

13.15 Principal Account(s) shall mean deposit accounts of the Fund carried on the books of BBH&Co. as principal in accordance with Section 7.

13.16 Safekeeping Account shall mean an account established on the books of the Custodian or any Subcustodian for purposes of segregating the interests of the Fund (or clients of the Custodian or Subcustodian) from the assets of the Custodian or any Subcustodian.

13.17 Securities Depository shall mean a central or book entry system or agency established under Applicable Law for purposes of recording the ownership and/or entitlement to investments for a given market.

13.18 Sponsor shall mean the entity, any employee of whom is an Authorized Person to give Instructions with respect to the investment and reinvestment of a Fund’s Investments.

13.19 Subcustodian(s) shall mean each foreign bank appointed by the Custodian pursuant to Section 8 hereof, but shall not include Securities Depositories.

13.20 Tri-Party Agreement shall have the meaning set forth in Section 6.4 hereof.

14. Compensation. The Fund agrees to pay to the Custodian (a) a fee in an amount set forth in the fee letter between the Fund and the Custodian in effect on the date hereof or as amended from time to time, and (b) all out-of-pocket expenses incurred by the Custodian, including the fees and expenses of all Subcustodians, and payable from time to time. Amounts payable by the Fund under and pursuant to this Section 14 shall be payable by wire transfer to the Custodian at BBH&Co. in New York, New York.

 

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15. Termination. This Agreement may be terminated by either party in accordance with the provisions of this Section. The provisions of this Agreement and any other rights or obligations incurred or accrued by any party hereto prior to termination of this Agreement shall survive any termination of this Agreement.

15.1 Term, Notice and Effect . This Agreement shall have an initial term of three (3) years from the date hereof. Thereafter, this Agreement shall automatically renew for successive one (1) year periods unless either party terminates this Agreement by written notice effective no sooner than seventy-five (75) days following the date that notice to such effect shall be delivered to the other party at its address set forth in Section 12.5 hereof. Notwithstanding the foregoing provisions, either party may terminate this Agreement at any time upon thirty (30) days written notice to the other party in the event that the either party is adjudged bankrupt or insolvent, or there shall be commenced against such party a case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect.

15.2 Successor Custodian . In the event of the appointment of a successor custodian, it is agreed that the Investments of the fund held by the Custodian or any Subcustodian shall be delivered to the successor custodian in accordance with reasonable Instructions. The parties agree to cooperate in the execution of documents and performance of other actions necessary or desirable in order to facilitate the succession of the new custodian. If no successor custodian shall be appointed, the Custodian shall in like manner transfer the Fund’s Investments in accordance with Instructions.

15.3 Delayed Succession. If no Instruction has been given as of the effective date of termination, Custodian may at any time on or after such termination date and upon ten (10) consecutive calendar days written notice to a Fund either (a) deliver the Investments of the Fund held hereunder to the Fund at the address designated for receipt of notices hereunder; or (b) deliver any investments held hereunder to a bank or trust company having a capitalization of $2,000,000 equivalent and operating under the Applicable law of the jurisdiction where such Investments are located, such delivery to be at the risk of the Fund. In the event that Investments or moneys of the Fund remain in the custody of the Custodian or its Subcustodians after the date of termination owing to the failure of the Fund to issue Instructions with respect to their disposition or owing to the fact that such disposition could not be accomplished in accordance with such Instructions despite diligent efforts of the Custodian, the Custodian shall be entitled to compensation for its services with respect to such Investments and moneys during such period as the Custodian or its Subcustodians retain possession of such items and the provisions of this Agreement shall remain in full force and effect until disposition in accordance with this Section is accomplished.

The undersigned acknowledges that (I/we) have received a copy of this document.

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first above written.

 

BROWN BROTHERS HARRIMAN & CO.     PROSHARES TRUST II
By:         By:    
Name:       Name:   Louis M. Mayberg
Title:       Title:   Principal Executive Officer
Date:       Date:  

 

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Brown Brothers Harriman & Co. (“BBH&Co.”) is a limited partnership organized under the laws of the United States of America (“US”) and is subject to the US Treasury Regulations set forth under 31 CFR 500, et seq. BBH&Co. may not establish any relationship with any Prohibited Person or Entity as such term is defined under the regulations. No customer of BBH&Co. may be owned or controlled by an entity or person: (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224, issued on September 24, 2001 (“EO13224”) < www.treasury.gov/offices/enforcement/ofac/programs/terror/terror.pdf >; (ii) whose name appears on the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specifically Designated National and Blocked Persons” (which list may be published from time to time in various mediums including, but not limited to, the OFAC website; (iii) who commits, threatens to commit or supports “terrorism”, as such term is defined in EO13224; or (iv) who is otherwise affiliated with any entity or person listed above (any and all parties or persons described in clauses (i) through (iv) above are herein referred to as a “Prohibited Person”).

 

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FUNDS TRANSFER SERVICES SCHEDULE TO CUSTODIAN AGREEMENT

1. Execution of Payment Orders . Brown Brothers Harriman & Co. (the Custodian) is hereby instructed by PROSHARES TRUST II (the Fund) to execute each payment order, whether denominated in United States dollars or other applicable currencies, received by the Custodian in the Fund’s name as sender and authorized and confirmed by an Authorized Person as defined in a Custodian Agreement dated as of                      by and between the Custodian and the Fund, as amended or restated from time thereafter (the Agreement), provided that the Fund has sufficient available funds on deposit in a Principal Account as defined in the Agreement and provided that the order (i) is received by the Custodian in the manner specified in this Funds Transfer Services Schedule or any amendment hereafter; (ii) complies with any written instructions and restrictions of the Fund as set forth in this Funds Transfer Services Schedule or any amendment hereafter; (iii) is authorized by the Fund or is verified by the Custodian in compliance with a security procedure set forth in Paragraph 2 below for verifying the authenticity of a funds transfer communication sent to the Custodian in the name of the Fund or for the detection of errors set forth in any such communication; and (iv) contains sufficient data to enable the Custodian to process such transfer.

2. Security Procedure . The Fund hereby elects to use the procedure selected below as its security procedure (the Security Procedure). The Security Procedure will be used by the Custodian to verify the authenticity of a payment order or a communication amending or canceling a payment order. The Custodian will act on instructions received provided the instruction is authenticated by the Security Procedure. The Fund agrees and acknowledges in connection with (i) the size, type and frequency of payment orders normally issued or expected to be issued by the Fund to the Custodian, (ii) all of the security procedures offered to the Fund by the Custodian, and (iii) the usual security procedures used by customers and receiving banks similarly situated, that authentication through the Security Procedure shall be deemed commercially reasonable for the authentication of all payment orders submitted to the Custodian. The Fund hereby elects (please choose one) the following Security Procedure as described below:

 

  ¨ BIDS and BIDS Worldview Payment Products . BIDS and BIDS Worldview Payment Products, are on-line payment order authorization facilities with built-in authentication procedures. The Custodian and the Fund shall each be responsible for maintaining the confidentiality of passwords or other codes to be used by them in connection with BIDS. The Custodian will act on instructions received through BIDS without duty of further confirmation unless the Fund notifies the Custodian that its password is not secure.

 

  ¨ SWIFT . The Custodian and the Fund shall comply with SWIFT’s authentication procedures. The Custodian will act on instructions received via SWIFT provided the instruction is authenticated by the SWIFT system.

 

  ¨ Computer Transmission . The Custodian is able to accept transmissions sent from the Fund’s computer facilities to the Custodian’s computer facilities provided such transmissions are encrypted and digitally certified or are otherwise authenticated in a reasonable manner based on available technology. Such procedures shall be established in an operating protocol between the Custodian and the Fund.

 

  ¨ Telefax Instructions . A payment order transmitted to the Custodian by telefax transmission shall transmitted by the Fund to a telephone number specified from time to time by the Custodian for such purposes. If it detects no discrepancies, the Custodian will then either:

 

  1. If the telefax requests a repetitive payment order, the Custodian may call the Fund at its last known telephone number, request to speak to the Fund or Authorized Person, and confirm the authorization and details of the payment order (a “Callback”); or

 

  2. If the telefax requests a non-repetitive order, the Custodian will perform a Callback.

 

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All faxes must be accompanied by a fax cover sheet which indicates the sender’s name, Fund name, telephone number, fax number, number of pages, and number of transactions or instructions attached.

 

  ¨ Telephonic . A telephonic payment order shall be called into the Custodian at the telephone number designated from time to time by the Custodian for that purpose. The caller shall identify herself/himself as an Authorized Person. The Custodian shall obtain the payment order data from the caller. The Custodian shall then:

 

  1. If a telephonic repetitive payment order, the Custodian may perform a Callback; or

 

  2. If a telephonic non-repetitive payment order, the Custodian will perform a Callback.

In the event the Fund chooses a procedure which is not a Security Procedure as described above, the Fund agrees to be bound by any payment order (whether or not authorized) issued in its name and accepted by the Custodian in compliance with the procedure selected by the Fund.

3. Rejection of Payment Orders . The Custodian shall give the Fund timely notice of the Custodian’s rejection of a payment order. Such notice may be given in writing or orally by telephone, each of which is hereby deemed commercially reasonable. In the event the Custodian fails to execute a properly executable payment order and fails to give the Fund notice of the Custodian’s non-execution, the Custodian shall be liable only for the Fund’s actual damages and only to the extent that such damages are recoverable under UCC 4A (as defined in Paragraph 7 below). Notwithstanding anything in this Funds Transfer Services Schedule and the Agreement to the contrary, the Custodian shall in no event be liable for any consequential or special damages under this Funds Transfer Services Schedule, whether or not such damages relate to services covered by UCC 4A, even if the Custodian has been advised of the possibility of such damages. Whenever compensation in the form of interest is payable by the Custodian to the Fund pursuant to this Funds Transfer Services Schedule, such compensation will be payable in accordance with UCC 4A.

4. Cancellation of Payment Orders . The Fund may cancel a payment order but the Custodian shall have no liability for the Custodian’s failure to act on a cancellation instruction unless the Custodian has received such cancellation instruction at a time and in a manner affording the Custodian reasonable opportunity to act prior to the Custodian’s execution of the order. Any cancellation shall be sent and confirmed in the manner set forth in Paragraph 2 above.

5. Responsibility for the Detection of Errors and Unauthorized Payment Orders . Except as may be provided, the Custodian is not responsible for detecting any Fund error contained in any payment order sent by the Fund to the Custodian. In the event that the Fund’s payment order to the Custodian either (i) identifies the beneficiary by both a name and an identifying or bank account number and the name and number identify different persons or entities, or (ii) identifies any bank by both a name and an identifying number and the number identifies a person or entity different from the bank identified by name, execution of the payment order, payment to the beneficiary, cancellation of the payment order or actions taken by any bank in respect of such payment order may be made solely on the basis of the number. The Custodian shall not be liable for interest on the amount of any payment order that was not authorized or was erroneously executed unless the Fund so notifies the Custodian within thirty (30) business days following the Fund’s receipt of notice that such payment order had been processed. If a payment order in the name of the Fund and accepted by the Custodian was not authorized by the Fund, the liability of the parties will be governed by the applicable provisions of UCC 4A.

 

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6. Laws and Regulations . The rights and obligations of the Custodian and the Fund with respect to any payment order executed pursuant to this Funds Transfer Services Schedule will be governed by any applicable laws, regulations, circulars and funds transfer system rules, the laws and regulations of the United States of America and of other relevant countries including exchange control regulations and limitations on dealings or other sanctions, and including without limitation those sanctions imposed under the law of the United States of America by the Office of Foreign Assets Control. Any taxes, fines, costs, charges or fees imposed by relevant authorities on such transactions shall be for the account of the Fund.

7. Miscellaneous . All accounts opened by the Fund or its authorized agents at the Custodian subsequent to the date hereof shall be governed by this Funds Transfer Schedule. All terms used in this Funds Transfer Services Schedule shall have the meaning set forth in Article 4A of the Uniform Commercial Code as currently in effect in the State of New York (UCC 4A) unless otherwise set forth herein. The terms and conditions of this Funds Transfer Services Schedule are in addition to, and do not modify or otherwise affect, the terms and conditions of the Agreement and any other agreement or arrangement between the parties hereto.

8. Indemnification . The Custodian does not recommend the sending of instructions by telefax or telephonic means as provided in Paragraph 2. BY ELECTING TO SEND INSTRUCTIONS BY TELEFAX OR TELEPHONIC MEANS, THE FUND AGREES TO INDEMNIFY THE CUSTODIAN AND ITS PARTNERS, OFFICERS AND EMPLOYEES FOR ALL LOSSES THEREFROM .

 

 

OPTIONAL : The Custodian will perform a Callback if instructions are sent by telefax

or telephonic means as provided in Paragraph 2. THE FUND MAY, AT ITS OWN RISK AND

BY HEREBY AGREEING TO INDEMNIFY THE CUSTODIAN AND ITS PARTNERS,

OFFICERS AND EMPLOYEES FOR ALL LOSSES THEREFROM, ELECT TO WAIVE A

CALLBACK BY THE CUSTODIAN BY INITIALLING HERE:             

 

 

The undersigned acknowledges that (I/we) have received a copy of this document.

Accepted and agreed:

 

BROWN BROTHERS HARRIMAN & CO.     PROSHARES TRUST II
By:         By:    
Name:       Name:  
Title:       Title:  
Date:       Date:  

 

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ELECTRONIC AND ON-LINE SERVICES SCHEDULE

This Electronic and On-Line Services Schedule (this Schedule ) to a Custodian Agreement dated as of              (as amended from time to time hereafter, the Agreement ) by and between Brown Brothers Harriman & Co. ( we, us our ) and PROSHARES TRUST II ( you, your ), provides general provisions governing your use of and access to the Services (as hereinafter defined) provided to you by us via the Internet (at www.bbhco.com or such other URL as we may instruct you to use to access our products ) and via a direct dial-up connection between your computer and our computers, as of              ,              (the Effective Date). Use of the Services constitutes acceptance of the terms and conditions of this Schedule, any Appendices hereto, the Terms and Conditions posted on our web site, and any terms and conditions specifically governing a particular Service or our other products, which may be set forth in the Agreement or in a separate related agreement (collectively, the Related Agreements ).

 

1. General Terms.

You will be granted access to our suite of online products, which may include, but shall not be limited to the following services via the Internet or dial-up connection (each separate service is a Service ; collectively referred to as the Services ):

 

 

1.1.

BIDS ® and BIDS WorldView, a system for effectuating securities and fund trade instruction and execution, processing and handling instructions, and for the input and retrieval of other information;

 

  1.2. F/X WorldView, a system for executing foreign exchange trades;

 

  1.3. Fund WorldView, a system for receiving fund and prospectus information;

 

  1.4. BBHCOnnect, a system for placing securities trade instructions and following the status and detail of trades;

 

 

1.5.

ActionView SM , a system for receiving certain corporate action information;

 

  1.6. Risk View, an interactive portfolio risk analysis tool; and

 

  1.7. Such other services as we shall from time to time offer.

 

2. Security / Passwords.

 

  2.1. A digital certificate and/or an encryption key may be required to access certain Services. You may apply for a digital certificate and/or an encryption key by following the procedures set forth at http://www.bbh.com/certs/ . You also will need an identification code ( ID ) and password(s) ( Password ) to access the Services.

 

  2.2. You agree to safeguard your digital certificate and/or encryption key, ID, and Password and not to give or make available, intentionally or otherwise, your digital certificate, ID, and/or Password to any unauthorized person. You must immediately notify us in writing if you believe that your digital certificate and/or encryption key, Password, or ID has been compromised or if you suspect unauthorized access to your account by means of the Services or otherwise, or when a person to whom a digital certificate and/or an encryption key, Password, or ID has been assigned leaves or is no longer permitted to access the Services.

 

  2.3. We will not be responsible for any breach of security, or for any unauthorized trading or theft by any third party, caused by your failure (be it intentional, unintentional, or negligent) to maintain the confidentiality of your ID and/or Password and/or the security of your digital certificate and/or encryption key.

 

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3. Instructions.

 

  3.1. Proper instructions under this Schedule shall be provided as designated in the Related Agreements ( Instructions ).

 

  3.2. The following additional provisions apply to Instructions provided via the Services:

 

  a. Instructions sent by electronic mail will not be accepted or acted upon.

 

  b. You authorize us to act upon Instructions received through the Services utilizing your digital certificate, ID, and/or Password as though they were duly authorized written instructions, without any duty of verification or inquiry on our part, and agree to hold us harmless for any losses you experience as a result.

 

  c. From time to time, the temporary unavailability of third party telecommunications or computer systems required by the Services may result in a delay in processing Instructions. In such an event, we shall not be liable to you or any third party for any liabilities, losses, claims, costs, damages, penalties, fines, obligations, or expenses of any kind (including without limitation, reasonable attorneys’, accountants’, consultants’, or experts’ fees and disbursements) that you experience due to such a delay.

 

4. Electronic Documents.

We may make periodic statements, disclosures, notices, and other documents available to you electronically, and, subject to any delivery and receipt verification procedures required by law, you agree to receive such documents electronically and to check the statements for accuracy. If you believe any such statement contains incorrect information, you must follow the procedures set forth in the Related Agreement(s).

 

5. Malicious Code.

You understand and agree that you will be responsible for the introduction (by you, your employees, agents, or representatives) into the Services, whether intentional or unintentional, of (i) any virus or other code, program, or sub-program that damages or interferes with the operation of the computer system containing the code, program or sub-program, or halts, disables, or interferes with the operation of the Services themselves; or (ii) any device, method, or token whose knowing or intended purpose is to permit any person to circumvent the normal security of the Services or the system containing the software code for the Services ( Malicious Code ). You agree to take all necessary actions and precautions to prevent the introduction and proliferation of any Malicious Code into those systems that interact with the Services.

 

6. Indemnification.

For avoidance of doubt, you hereby agree that the provisions in the Related Agreement(s) related to your indemnification of us and any limitations on our liability and responsibilities to you shall be applicable to this Agreement, and are hereby expressly incorporated herein. You agree that the Services are comprised of telecommunications and computer systems, and that it is possible that Instructions, information, transactions, or account reports might be added to, changed, or omitted by electronic or programming malfunction, unauthorized access, or other failure of the systems which comprise the Services, despite the security features that have been designed into the Services. You agree that we will not be liable for any action taken or not taken in complying with the terms of this Schedule, except for our willful misconduct or gross negligence. The provisions of this paragraph shall survive the termination of this Schedule and the Related Agreements.

 

7. Payment.

You may be charged for services hereunder as set forth in a fee schedule from time to time agreed by us.

 

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8. Term/Termination.

 

  8.1. This Schedule is effective as of the date you sign it or first use the Services, whichever is first, and continues in effect until such time as either you or we terminate the Schedule in accordance with this Section 8 and/or until your off-line use of the Services is terminated.

 

  8.2. We may terminate your access to the Services at any time, for any reason, with five (5) business days prior notice; provided that we may terminate your access to the Services with no prior notice (i) if your account with us is closed, (ii) if you fail to comply with any of the terms of this Agreement, (iii) if we believe that your continued access to the Services poses a security risk, or (iv) if we believe that you are violating or have violated applicable laws, and we will not be liable for any loss you may experience as a result of such termination. You may terminate your access to the Services at any time by giving us ten (10) business days notice. Upon termination, we will cancel all your Passwords and IDs and any in-process or pending Instructions will be carried out or cancelled, at our sole discretion.

 

9. Miscellaneous.

 

  9.1. Notices. All notices, requests, and demands (other than routine operational communications, such as Instructions) shall be in such form and effect as provided in the Related Agreement(s).

 

  9.2. Inconsistent Provisions. Each Service may be governed by separate terms and conditions in addition to this Schedule and the Related Agreement(s). Except where specifically provided to the contrary in this Schedule, in the event that such separate terms and conditions conflict with this Schedule and the Related Agreement(s), the provisions of this Schedule shall prevail to the extent this Schedule applies to the transaction in question.

 

  9.3. Binding Effect; Assignment; Severability. This Schedule shall be binding on you, your employees, officers and agents. We may assign or delegate our rights and duties under this Schedule at any time without notice to you. Your rights under this Schedule may not be assigned without our prior written consent. In the event that any provision of this Schedule conflicts with the law under which this Schedule is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over you and us, such provision shall be deemed to be restated to effectuate as nearly as possible the purposes of the Schedule in accordance with applicable law. The remaining provisions of this Schedule and the application of the challenged provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision shall be valid and enforceable to the full extent permitted by law.

 

  9.4. Choice of Law; Jury Trial. This Schedule shall be governed by and construed, and the legal relations between the parties shall be determined, in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of laws. Each party agrees to waive its right to trial by jury in any action or proceeding based upon or related to this Agreement. The parties agree that all actions and proceedings based upon or relating to this Schedule shall be litigated exclusively in the federal and state courts located within New York City, New York.

The undersigned acknowledges that (I/we) have received a copy of this document.

 

  PROSHARES TRUST II (“you”)
By:    
Title:    
Date:    

 

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Exhibit 10.4

FORM OF DISTRIBUTION AGREEMENT

THIS DISTRIBUTION AGREEMENT (this “ Agreement ”) is made as of this              day of                      between ProShares Trust II (the “ Trust ”), a Delaware statutory trust, and SEI Investments Distribution Co. (the “ Distributor ”), a Pennsylvania corporation.

WHEREAS, the Trust is comprised of one or more separate series (each, a “ Fund ” and collectively, the “ Funds ”); and

WHEREAS, each Fund has registered with the Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933, as amended (the “ 1933 Act ”) to issue common units of fractional undivided beneficial interest (“ Shares ”); and

WHEREAS, the Distributor is registered as a broker-dealer with the SEC under the Securities Exchange Act of 1934 (the “ 1934 Act ”), as amended and is a member of FINRA and will continue as such during the entire term of the Agreement;

NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, the Trust and Distributor hereby agree as follows:

ARTICLE 1 Sale of Shares . The Trust grants to the Distributor the right to sell Shares at the net asset value per Share, plus any applicable sales charges in accordance with the current prospectus and statement of additional information, as agent and on behalf of the Trust, during the term of this Agreement and subject to the registration requirements of the 1933 Act, the rules and regulations of the SEC and the laws governing the sale of securities in the various states (“ Blue Sky Laws ”). In its capacity as distributor of the Shares, all activities of Distributor and its partners, agents, and employees shall, at its own expense, comply with all applicable laws, rules and regulations, including, without limitation, all rules and regulations promulgated by the Securities and Exchange Commission thereunder and all rules and regulations adopted by any securities association registered under the 1934 Act. The Distributor will not maintain a secondary market in the Shares.

ARTICLE 2 Solicitation of Sales . In consideration of these rights granted to the Distributor, the Distributor agrees to use all reasonable efforts in connection with the distribution of Shares of the Trust on a continuous basis; provided, however, that the Distributor shall not be prevented from entering into like arrangements with other issuers. In particular, the Distributor shall enter into Authorized Participant Agreements with persons who are participants in the system for book-entry of the Depository Trust Company (“ DTC ”), as authorized by the Adviser (“ Authorized Participants ”), consistent with applicable law and the registration statement and prospectus and statement of additional information of the Trust, to create and redeem Shares, consistent with the protocol described in Sections 1(f) and 2(g) of the Services Agreement, of even date herewith, among ProShare Capital Management LLC (the “ Adviser ”) and the Distributor (the “ Services Agreement ”). In addition, the Distributor may enter into selling and/or investor servicing agreements (the “ Sales and Investor Services Agreements ”) with various broker-dealers and any other financial institution exempt under federal or state securities laws from registration as a broker or dealer authorized by the Adviser, consistent with applicable law and the registration statement and prospectus, to sell Shares and provide services to shareholders, consistent with the protocol described in Sections 1(g) and 2(f) of the Services Agreement. The Distributor, together with its affiliated companies, shall provide such additional specific services as are listed in Appendix A hereto, including without limitation generating and transmitting confirmations of purchase order acceptances to the purchasers of Shares. If and whenever the determination of net asset value is suspended and until such suspension is terminated, no further orders for Shares will be processed by SEI except such unconditional orders as may have been placed with SEI before it had knowledge of the suspension. In addition, SEI shall accede to any suspension by the Trust of sales of Shares (and SEI’s authority to process orders for Shares), upon due notice to SEI if, in the judgment of the Trust, it is in the best interests of the Trust to do so. Suspension shall continue until such time as may be determined by the Trust. No Shares shall be offered by the Trust or the Fund under any of the provisions of

 

1


this Agreement and no orders for the purchase or sale of such Shares hereunder shall be accepted by the Fund if and so long as the effectiveness of the registration statement then in effect or any necessary amendments thereto shall be suspended under any of the provisions of the 1933 Act or if and so long as a current prospectus as required by Section 10 of said Act is not on file with the Securities and Exchange Commission; provided, however, that nothing contained in this Paragraph shall in any way restrict or have any application to or bearing upon the Fund’s obligation to redeem or repurchase any Shares from any shareholder in accordance with the provisions of the Fund’s prospectus or charter documents. In the event of a suspension of the sale of Shares or the suspension of the determination of net asset value, SEI shall have no liability for processing orders before receiving due notice from the Trust regarding any such suspension.

SEI shall, in connection with the foregoing processes, maintain appropriate telephone facsimile and/or access to direct computer communication links with the Transfer Agent. The Distributor is not authorized by the Trust to give any information or to make any representations other than those contained in the current registration statements and prospectuses of the Trust filed with the SEC or contained in shareholder reports or other material that may be prepared by or on behalf of the Trust for the Distributor’s use. The Distributor may prepare and distribute sales literature and other material as it may deem appropriate, provided that such literature and materials have been prepared in accordance with applicable rules and regulations.

 

2


ARTICLE 3 Registration of Shares . The Trust agrees that it will take all action necessary to register Shares under the federal securities laws (and state securities laws, in the Trust’s discretion) so that there will be available for sale the number of Shares the Distributor may reasonably be expected to sell and to pay all fees associated with said registration. The Trust shall make available to the Distributor such number of copies of its currently effective prospectus and statement of additional information as the Distributor may reasonably request to fulfill its obligations hereunder. The Trust shall furnish to the Distributor copies of all information, financial statements and other papers which the Distributor may reasonably request for use in connection with the distribution of Shares of the Trust. The costs associated with the drafting, typesetting, printing and mailing the prospectus or other information, financial statements or other papers shall be borne by the Trust or the Adviser. The Trust shall not pay any of the costs of advertising or promotion for the sale of the Shares, except as such payments may be made pursuant to a distribution and/or shareholder servicing plan adopted by the Trust (hereinafter, a “ Plan ”).

ARTICLE 4 Delivery of Prospectus . The Distributor shall deliver copies of the prospectus of the Trust (or where appropriate, the product description, as approved by the Distributor, in lieu of the prospectus) to purchasers of Shares from the Trust (and, upon request, copies of the statement of additional information), except where such delivery is not required by applicable law. In addition, the Distributor shall ensure that all requests to the Distributor for prospectuses and statements of additional information are fulfilled (by providing information regarding such fulfillment requests to the relevant party designated by the Adviser); and (ii) provide the American Stock Exchange (“ AMEX ”) (and any other national stock exchange on which the Shares may be listed) with copies of prospectuses to be provided to purchasers in the secondary market (by providing information regarding delivery of prospectuses to the relevant exchange to the relevant party designated by the Adviser). In connection with the foregoing, the Distributor shall generally make it known in the brokerage community that prospectuses and statements of additional information are available, including by (i) advising AMEX on behalf of its member firms of the same and (ii) making such disclosure in all marketing and advertising materials prepared and/or filed by the Distributor with FINRA .

ARTICLE 5 Administration of the Plan(s) . The Distributor agrees to administer on behalf of the Trust any Plan(s) adopted by the Trust. The Distributor shall, at its own expense, set up and maintain a system of recording payments of fees and reimbursement of expenses disseminated pursuant to this Agreement and other agreements related to any such Plan(s) and report such payment activity to the Trust at least quarterly.

(a) The Distributor shall receive from the Trust all distribution and shareholder servicing fees, as applicable, at the rate and to the extent payable under the terms and conditions set forth in any Plan(s) adopted by the Trust, applicable to the appropriate class of shares of each Fund, as such Plan(s) may be amended from time to time, and subject to any further limitations on such fees as the Board of Trustees of the Trust may impose;

(b) The Distributor shall pay, from the fees accrued by the Trust pursuant to any such Plan(s), all fees and make reimbursement of all expenses, pursuant to and in accordance with such Plan(s) and any and all Sales and Investor Services Agreements referred to in ARTICLE 2 herein. In no event shall Distributor be entitled to retain for its own account any amount accrued pursuant to any such Plan(s).

ARTICLE 6 Expenses. The Distributor shall bear the following costs and expenses relating to the distribution of Shares of the Funds: (1) the costs of processing an maintaining records of creations of Shares; (2) the costs of maintaining the records required of a broker-dealer under the 1934 Act; (3) the expenses of maintaining its registration or qualification as a dealer or broker under federal or state laws; and (4) all other expenses incurred in connection with the distribution services contemplated herein, except as specifically provided in this Agreement or the Services Agreement.

ARTICLE 7 Privacy . In accordance with Regulation S-P (“ Regulation S-P ”), nonpublic personal financial information relating to consumers or customers of the Trust provided by, or at the direction of the Trust to the Distributor, or collected or retained by the Distributor in the course of performing its duties shall be considered confidential information. Distributor agrees that it shall not use such confidential information for any purpose other than to carry out its obligations under this Agreement, and further agrees that it shall not give, sell, or in any way transfer or disclose such confidential information to any person or entity, other than (i) affiliates of the

 

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Distributor who have entered into contractual arrangements with the Trust, and then only to the extent necessary to carry out the obligations under such contractual arrangements, (ii) at the discretion of the Trust, (iii) as required by law, or (iv) subject to (i) above, as permitted by law. Distributor represents that it has in place and shall maintain physical, electronic, and procedural safeguards reasonably designed to protect the security, confidentiality, and integrity of, and to prevent unauthorized access to or use of records and information related to customers of the Trust. Distributor warrants that prior to disclosing such confidential information to any person or entity as permitted in the previous sentence, Distributor shall obtain a representation from such person or entity that the person or entity has in place similar procedural safeguards designed to meet the objectives set forth in this paragraph. The Trust represents to the Distributor that it has adopted a Statement of its privacy policies and practices as required by Regulation S-P and agrees to provide Distributor with a copy of that statement annually

ARTICLE 8 Indemnification of Distributor . The Trust agrees to indemnify and hold harmless the Distributor and each of its directors and officers and each person, if any, who controls the Distributor within the meaning of Section 15 of the 1933 Act (each, a “ Distributor Indemnified Party ”) against any loss, liability, claim, damages or expense (including the reasonable cost of investigating or defending any alleged loss, liability, claim, damages, or expense and reasonable counsel fees and disbursements incurred in connection therewith), arising by reason of (i) any person acquiring any Shares, based upon the ground that the registration statement, prospectus, shareholder reports or other information filed or made public by the Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements made not misleading, (ii) an Authorized Participant’s failure to initially or subsequently fulfill the Trust’s creditworthiness standards or (iii) the failure to apply or inaccurate application of the Trust’s creditworthiness standards. However, the Trust does not agree to indemnify any Distributor Indemnified Party or hold it harmless to the extent that the statement or omission under paragraph (i) was made in reliance upon, and in conformity with, information furnished to the Trust by or on behalf of such Distributor Indemnified Party.

In no case (i) is the indemnity of the Trust to be deemed to protect any Distributor Indemnified Party against any liability to the Trust or its Shareholders to which such Distributor Indemnified Party otherwise would be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Trust to be liable to any Distributor Indemnified Party under the indemnity agreement contained in this paragraph with respect to any claim made against such Distributor Indemnified Party unless the Distributor or the Distributor Indemnified Party shall have notified the Trust in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Distributor or such other person (or after the Distributor or the Distributor Indemnified Party shall have received notice of service on any designated agent). However, failure to notify the Trust of any claim shall not relieve the Trust from any liability which it may have to the Distributor Indemnified Party against whom such action is brought otherwise than on account of its indemnity agreement contained in this paragraph.

The Trust will also not indemnify any indemnitee with respect to any untrue statement or omission made in the registration statement or prospectus that is subsequently corrected in such document (or an amendment thereof or supplement thereof) if a copy of the prospectus (or such amendment or supplement) was not sent or given to the person asserting any such loss, liability, claim damage or expense at or before the written purchase confirmation to such person in any case where such delivery is required by the 1933 Act and the Trust had notified the Distributor of the amendment or supplement prior to the sending of the confirmation.

The Trust shall be entitled to participate at its own expense in the defense or, if it so elects, to assume the defense of any suit brought to enforce any claims subject to this indemnity provision. If the Trust elects to assume the defense of any such claim, the defense shall be conducted by counsel chosen by the Trust and satisfactory to the indemnified defendants in the suit whose approval shall not be unreasonably withheld. In the event that the Trust elects to assume the defense of any suit and retain counsel, the indemnified defendants shall bear the fees and expenses of any additional counsel retained by them. If the Trust does not elect to assume the defense of a suit, it will reimburse the indemnified defendants for the reasonable fees and expenses of any counsel retained by the indemnified defendants.

 

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The Trust agrees to notify the Distributor promptly of the commencement of any litigation or proceedings against it or any of its officers or Trustees in connection with the issuance or sale of any of its Shares.

ARTICLE 9 Indemnification of Trust . The Distributor covenants and agrees that it will indemnify and hold harmless the Trust and each of its Trustees and officers and each person, if any, who controls the Trust within the meaning of Section 15 of the 1933 Act (each, a “ Trust Indemnified Party ”), against any loss, liability, damages, claim or expense (including the reasonable cost of investigating or defending any alleged loss, liability, damages, claim or expense and reasonable counsel fees incurred in connection therewith) based upon the 1933 Act or any other statute or common law and arising by reason of any person acquiring any Shares, and alleging a wrongful act of the Distributor or any of its employees or alleging that the registration statement, prospectus, Shareholder reports or other information filed or made public by the Trust (as from time to time amended) included an untrue statement of a material fact or omitted to state a material fact required to be stated or necessary in order to make the statements not misleading, insofar as the statement or omission was made in reliance upon and in conformity with information furnished to the Trust by or on behalf of the Distributor.

In no case (i) is the indemnity of the Distributor in favor of the Trust or any Trust Indemnified Party to be deemed to protect the Trust or any Trust Indemnified Party against any liability to which the Trust or such Trust Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of its obligations and duties under this Agreement, or (ii) is the Distributor to be liable under its indemnity agreement contained in this paragraph with respect to any claim made against the Trust or any Trust Indemnified Party unless the Trust or Trust Indemnified Party, as the case may be, shall have notified the Distributor in writing of the claim within a reasonable time after the summons or other first written notification giving information of the nature of the claim shall have been served upon the Trust or upon any Trust Indemnified Party (or after the Trust or such Trust Indemnified Party shall have received notice of service on any designated agent). However, failure to notify the Distributor of any claim shall not relieve the Distributor from any liability which it may have to the Trust or any Trust Indemnified Party against whom the action is brought otherwise than on account of its indemnity agreement contained in this paragraph.

The Distributor shall be entitled to participate, at its own expense, in the defense or, if it so elects, to assume the defense of any suit brought to enforce the claim, but if the Distributor elects to assume the defense, the defense shall be conducted by counsel chosen by the Distributor and satisfactory to the indemnified defendants whose approval shall not be unreasonably withheld. In the event that the Distributor elects to assume the defense of any suit and retain counsel, the defendants in the suit shall bear the fees and expenses of any additional counsel retained by them. If the Distributor does not elect to assume the defense of any suit, it will reimburse the indemnified defendants in the suit for the reasonable fees and expenses of any counsel retained by them.

The Distributor agrees to notify the Trust promptly of the commencement of any litigation or proceedings against it or any of its officers in connection with the issue and sale of any of the Trusts’ Shares.

ARTICLE 10 Consequential Damages . In no event and under no circumstances shall either party to this Agreement be liable to anyone, including, without limitation, the other party, for consequential damages for any act or failure to act under any provision of this Agreement.

ARTICLE 11 Term and Termination . The term of this Agreement shall become effective on the date of the initial public offering of Shares of the Trust (the “ Effective Date ”), and shall remain in effect for three years (the “ Initial Term ”). This Agreement shall continue in effect for successive periods of three years after the Initial Term (a “ Renewal Term ”). This Agreement may be terminated: (a) by either party at the end of the Initial Term or the end of any Renewal Term on 90 days’ prior written notice; (b) by either party hereto on such date as is specified in written notice given by the terminating party, in the event of a material breach of this Agreement by the other party, provided the terminating party has notified the other party of such material breach at least 45 days prior to the specified date of termination and the breaching party has not remedied such breach by the specified date; or (c) effective upon the liquidation of the Trust. For purposes of this paragraph, the term “liquidation” shall mean a transaction in which the assets of the Trust are sold or

 

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otherwise disposed of and proceeds therefrom are distributed in cash to the shareholders in complete liquidation of the interests of such shareholders in the entity. This Agreement may be terminated by the Distributor without penalty only upon termination of the Services Agreement in accordance with its terms.

ARTICLE 12 Notices . Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to the Trust, at 7501 Wisconsin Avenue, Suite 1000, Bethesda, Maryland 20814, Attn: General Counsel; and if to the Distributor, One Freedom Valley Drive, Oaks, Pennsylvania 19456, Attn: General Counsel.

ARTICLE 13 Limitation of Liability . A copy of the Certificate of Trust of the Trust is on file with the Secretary of State of the State of Delaware, and notice is hereby given that this Agreement is executed on behalf of the Trustees of the Trust as Trustees and not individually and that the obligations of this instrument are not binding upon any of the Trustees, officers or shareholders of the Trust individually but binding only upon the assets and property of the Trust.

Each Fund shall be regarded for all purposes hereunder as a separate party apart from each Fund. Under the context otherwise requires, with respect to every transaction covered by this Agreement, every reference herein to the Trust shall be deemed to relate solely to the particular Fund to which such transaction relates. Under no circumstances shall the rights, obligations or remedies with respect to a particular Fund constitute a right, obligation, or remedy applicable to any other Fund. The use of this single document to memorialize the separate agreement of each Fund is understood to be for clerical convenience only and shall not constitute any basis for joining the Funds for any reason.

The Distributor shall not be liable to the Trust for any damages arising out of (i) activities or statements of sales or wholesaler personnel who are employed and supervised by the Trust’s investment adviser or its affiliates (collectively, the “ Adviser ”), (ii) any act or omission of the Trust’s transfer agent, (iii) any act or omission hereunder unless such act or omission is the result of Distributor’s bad faith, gross negligence or willful misconduct in the performance of its duties hereunder, (iv) any misstatement or omission in the Trust’s registration statement, prospectus, shareholder report or other information filed or made public by the Trust (as from time to time amended), provided that such misstatement or omission was not made in reliance upon, and in conformity with, information furnished to the Trust by Distributor, (v) the operation of a customer contact center or similar call center by the Adviser or one of its agents, or (vi) mistakes or errors in data provided to Distributor by, or interruptions or delays or communications with, any other service providers to the Trust.

ARTICLE 14 Representations of the Distributor .

(a) The Distributor represents and warrants that this Agreement has been duly authorized by Distributor and, when executed and delivered by Distributor, will constitute a legal, valid and binding obligation of Distributor, enforceable against Distributor in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties.

(b) The Distributor further represents and warrants that it is a member of FINRA and agrees to abide by all of the rules and regulations of FINRA, including, without limitation, its Conduct Rules. The Distributor agrees to comply with all applicable federal and state laws, rules and regulations. The Distributor agrees to notify Adviser immediately in the event of its expulsion or suspension by FINRA. Expulsion of the Distributor by FINRA will automatically terminate this Agreement immediately without notice. Suspension of the Distributor by FINRA will terminate this Agreement effective immediately upon written notice of termination to the Distributor from Adviser.

(c) The Distributor further represents that its anti-money laundering program (“ AML Program ”), at a minimum, (i) designates a compliance officer to administer and oversee the AML Program, (ii) provides ongoing employee training, (iii) includes an independent audit function to test the effectiveness of the AML Program, (iv) establishes internal policies, procedures, and controls that are tailored to its particular

 

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business, (v) includes a customer identification program consistent with the rules under section 326 of the USA PATRIOT Act, (vi) provides for the filing of all necessary anti-money laundering reports including, but not limited to, currency transaction reports and suspicious activity reports, (vii) provides for screening all new and existing customers against reports and suspicious activity reports, (vii) provides for screening all new and existing customers against the Office of Foreign Asset Control list and any other government list that is or becomes required under the USA PATRIOT Act, and (viii) allows for appropriate regulators to examine its anti-money laundering books and records. Notwithstanding the foregoing, the Trust acknowledges that the Authorized Participants (that is, a person authorized to purchase and redeem aggregations of a specified number of Shares of any Fund) are not “customers” for the purposes of 31 CFR 103.

(d) To the extent applicable, the Distributor agrees that it will comply with any requirements set forth in (i) the Exchange Act Rule 19b-4 relief provided to the American Stock Exchange LLC (Release No. 34-52197; File No. SR-Amex-2004-62) or similar relief which may be provided to any other listing exchange and with respect to which the Distributor receives adequate advance notice and (ii) the registration statement of the Funds.

(e) To the extent the Distributor has access to the Trust’s portfolio holdings prior to their public dissemination, the Distributor represents and warrants that it will comply with the Trust’s portfolio holdings disclosure policy.

(f) The Distributor represents and warrants that it will not make any secondary sales to brokers or dealers at a concession.

ARTICLE 15 Return of Records. The Distributor shall promptly upon the demand of the Adviser and/or the Trust, turn over to the Adviser and/or the Trust files, records and documents created and maintained by the Distributor pursuant to this Agreement which are no longer needed by the Distributor in the performance of its services or for its legal protection. If not so turned over to Adviser and/or the Trust, such documents and records will be retained by the Distributor for six years from the year of creation. At the end of such six year period, such records and documents will be turned over to the Adviser and/or the Trust unless the Trust authorizes in writing the destruction of such records and documents.

ARTICLE 16 Entire Agreement; Amendments . This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior agreement, draft or agreement or proposal with respect to the subject matter hereof. This Agreement or any part hereof may be changed or waived only by an instrument in writing signed by the party against which enforcement of such change or waiver is sought.

ARTICLE 17 Governing Law . This Agreement shall be construed in accordance with the laws of the State of Delaware.

ARTICLE 18 Multiple Originals . This Agreement may be executed in two or more counterparts, each of which when so executed shall be deemed to be an original, but such counterparts shall together constitute but one and the same instrument.

ARTICLE 19 Severability. If any part, term or provision of this Agreement is held to be illegal, in conflict with any law or otherwise invalid, the remaining portion or portions shall be considered severable and not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be illegal or invalid.

ARTICLE 20 Confidentiality . During the term of this Agreement, the Distributor and the Trust may have access to confidential information relating to such matters as either party’s business, trade secrets, systems, procedures, manuals, products, contracts, personnel, and clients. As used in this Agreement, “ Confidential Information ” means information belonging to one of the parties which is of value to such party and the disclosure of which could result in a competitive or other disadvantage to such party. Confidential Information includes, without limitation, financial information, proposal and presentations, reports, forecasts; inventions,

 

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improvements and other intellectual property; trade secrets; know-how; designs, processes or formulae; software; market or sales information or plans; customer lists; and business plans, prospects and opportunities (such as possible acquisitions or dispositions of businesses or facilities). Confidential Information includes information developed by either party in the course of engaging in the activities provided for in this Agreement, unless: (i) the information is or becomes publicly known through lawful means; (ii) at the time of receipt the information was already actually known to the other party; or (iii) the information is disclosed to the other party without a confidential restriction by a third party who rightfully possesses the information and did not obtain it, either directly or indirectly, from one of the parties, as the case may be, or any of their respective principals, employees, affiliated persons, or affiliated entities. The parties understand and agree that all Confidential Information shall be kept confidential by the other both during and after the term of this Agreement. The parties further agree that they will not, without the prior written approval by the other party, disclose such Confidential Information, or use such Confidential Information in any way, either during the term of this Agreement or at any time thereafter, except as required in the course of this Agreement and as approved by the other party or as required by law.

IN WITNESS WHEREOF, the Trust and SIDCO have each duly executed this Agreement, as of the day and year above written.

 

PROSHARES TRUST II     SIDCO INVESTMENTS DISTRIBUTION CO.
By:         By:    
Name:       Name:  
Title:       Title:  

 

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APPENDIX A

ADDITIONAL SERVICES

 

(1) forward any complaints concerning the Trust received by the Distributor to the Trust, assist in resolving such complaints, and maintain a log of such complaints as required by applicable law;

 

(2) provide an order processing system pursuant to which the Authorized Participants may contact the Distributor (or its affiliates) and place requests to create and redeem Shares as set forth in the Services Agreement;

 

(3) assist in the preparation of quarterly materials with regard to sales and other distribution related data reasonably requested by the Board of Trustees of the Trust (the “ Board ”);

 

(4) prepare materials for the Board supporting the annual renewal of the Distribution Agreement;

 

(5) make available one or members of its staff to attend Board meetings of the Trust in order to provide information with regard to the ongoing distribution process and for such other purposes as may be reasonably requested by the Board;

 

(6) in connection with the foregoing activities, maintain an office facility for the Trust;

 

(7) in connection with the foregoing activities, furnish the Trust with clerical services, stationery and office supplies; and

 

(8) keep and maintain all books and records relating to its services in accordance with applicable law.

 

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Exhibit 23.3

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the use in this Registration Statement on Form S-1 of our report dated August 13, 2008 relating to the financial statements of ProShares Trust II, which appears in such Registration Statement. We also consent to the references to us under the headings “Experts” in such Registration Statement.

/s/ PricewaterhouseCoopers LLP

Columbus, Ohio

August 13, 2008

EXHIBIT 23.4

CONSENT OF INDEPENDENT ACCOUNTANTS

We consent to the use in the Prospectus constituting part of this Registration Statement on Pre-Effective Amendment Number 2 to Form S-1 of our report dated August 12, 2008 on the statement of financial condition of ProShare Capital Management LLC as of December 31, 2007, which appears in such Prospectus. We also consent to the statement with respect to us as appearing under the heading “Experts” in the Prospectus.

/s/ Arthur F. Bell, Jr. & Associates, L.L.C.

Hunt Valley, Maryland

August 12, 2008