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Item 23(e)
MARKET STREET FUND
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement"), dated as of January 1,
2001, by and between MARKET STREET FUND, a Delaware business trust (the "Fund"),
and 1717 CAPITAL MANAGEMENT COMPANY, a Pennsylvania corporation (the
"Distributor").
WHEREAS, the Fund is an open-end, diversified management investment
company and is so registered under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Distributor is registered under the Securities and Exchange
Act of 1934, as amended (the "1934 Act"), and is a member of the National
Association of Securities Dealers, Inc. ("NASD"); and
WHEREAS, the Fund desires to retain the Distributor as the Fund's
distributor to provide for the sale and distribution of shares of beneficial
interest ("shares") of each series, and any class or classes thereof, of the
Fund's investment portfolios (individually, a "Portfolio," and, collectively,
the "Portfolios") as listed on the Appendix (as, from time to time, may be
supplemented or amended), and the Distributor is willing to render these
services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth and intending to be legally bound, the parties hereto agree as
follows:
1. APPOINTMENT OF DISTRIBUTOR. The Fund hereby appoints the Distributor as
distributor of each Portfolio, and any class thereof, on the terms and for the
period set forth in this Agreement. The Distributor hereby accepts this
appointment and agrees to render the services and duties set forth in Section 3
below. In the event that the Fund establishes any classes of the Portfolios
listed on the Appendix, or additional investment portfolios other than the
Portfolios listed on the Appendix, with respect to which the Fund desires to
retain the Distributor to act as distributor hereunder, the Fund shall notify
the Distributor, whereupon the Appendix shall be supplemented or amended and
that class or portfolio shall become a Class or Portfolio hereunder, subject to
the provisions of this Agreement to the same extent as the Portfolios (except to
the extent that said provisions may be modified in writing by the Fund and
Distributor at the time).
2. DELIVERY OF DOCUMENTS. The Fund has furnished the Distributor with copies of
each of the following documents and shall deliver to the Distributor any future
amendments and supplements:
a. The Fund's Declaration of Trust, pursuant to a Certificate of
Trust filed with the Secretary of State of the State of Delaware
on October ___, 2000, as that Declaration of Trust may be amended
from time to time (the "Declaration of Trust");
b. The Fund's Bylaws, as amended and supplemented ("Bylaws");
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c. Resolutions of the Fund's Board of Trustees (the "Board")
authorizing the execution and delivery of this Agreement;
d. The Fund's most recent amendment to its Registration Statement
under the Securities Act of 1933, as amended (the "1933 Act"),
and the 1940 Act on Form N-1A as filed with the Securities and
Exchange Commission (the "Commission") on [November 1, 2000],
relating to the Fund's Portfolios (the Registration Statement, as
presently in effect and as amended or supplemented from time to
time, is herein called the "Registration Statement");
e. The Fund's most recent prospectus(es) and statement of additional
information and all amendments and supplements thereto (these
prospectus(es) and statement of additional information and any
supplements thereto, as presently in effect and as from time to
time amended and supplemented, are herein called the
"Prospectus"); and
f. The Fund's service plan and related distribution and servicing
agreement and form of broker-dealer agreement, when and if
approved; and
g. The Fund's participation agreements with certain insurance
companies that on behalf of the insurance company, and on behalf
of each separate account of the company, invest in certain
Portfolios (the "Dedicated Portfolios") which act as investment
vehicles for separate accounts established for variable life
insurance policies and variable annuity contracts offered by the
insurance companies that have entered into participation
agreements with the Fund, including Provident Mutual Life
Insurance Company, Providentmutual Life and Annuity Company of
America, and other insurance companies as may from time to time
enter into participation agreements with the Fund and the
Distributor (collectively, these agreements are referred to as
the "Participation Agreements").
3. SERVICES AND DUTIES. The Distributor covenants the following with respect to
the Distributor's services and duties:
a. The Distributor agrees to sell, as agent, from time to time
during the term of this Agreement, shares upon the terms and at
the current offering price as described in the Prospectus. The
Distributor shall act in accordance with the Participation
Agreements when selling shares of the Dedicated Portfolios, and
the Distributor shall act only in the Distributor's own behalf as
principal in making agreements with selected dealers, if any,
with respect to Portfolios that are not Dedicated Portfolios
(hereafter referred to as the "Retail Portfolios"). No
broker-dealer or other person that enters into a selling,
servicing, or participation agreement with the Distributor shall
be authorized to act as agent for the Fund or the Fund's
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Portfolios in connection with the offering or sale of shares to
the public or otherwise, except as provided in that selling,
servicing, or participation agreement. The Distributor shall use
the Distributor's best efforts to sell shares of each Portfolio,
or class thereof, but the Distributor shall not be obligated to
sell any certain number of shares.
b. The Distributor shall prepare or review, provide advice with
respect to, and file with the federal and state agencies or other
organization as required by federal, state, and other applicable
laws and regulations, all sales literature (advertisements,
brochures, and shareholder communications) for each of the
Portfolios and any class of shares thereof.
c. In performing all of the Distributor's services and duties as
distributor, the Distributor shall act in conformity with the
Declaration of Trust, Bylaws, Prospectuses, and resolutions and
other instructions of the Fund's Board and shall comply with the
requirements of the 1933 Act, the 1934 Act, the 1940 Act and all
other applicable federal or state law and the rules and
regulations of the NASD.
d. The Distributor shall bear the cost of (i) printing and
distributing any Prospectus (including any supplement thereto) to
investors who are not shareholders, and (ii) preparing, printing,
and distributing any literature, advertisement or material that
is primarily intended to result in the sale of shares; provided,
however, that the Distributor shall not be obligated to bear the
expenses incurred by the Fund in connection with the preparation
and printing of any amendment to any Registration Statement or
Prospectus necessary for the continued effective registration of
the shares under the 1933 Act and state securities laws and the
distribution of any such document to existing shareholders of the
Fund's Portfolios.
e. The Fund shall have the right to suspend the sale of shares at
any time in response to conditions in the securities markets or
otherwise, as may be determined by the Fund's Board, and to
suspend the redemption of shares of any Portfolio, or class
thereof, at any time permitted by the 1940 Act or the rules and
regulations of the Commission ("Rules").
f. The Fund reserves the right to reject any order for shares but
shall not do so arbitrarily or without reasonable cause.
4. FORFEITURE OF ANY SALES CHARGES UNDER CERTAIN CIRCUMSTANCES. If any Fund
shares subject to any sales charges are sold by the Distributor under the terms
of this Agreement are later redeemed or repurchased by the Fund or by the
Distributor as agent or tendered for redemption within seven (7) business days
after the date of confirmation of the original purchase of these shares, the
Distributor shall forfeit the amount above the net asset value received by the
Distributor in respect of these shares; provided, that the portion, if any, of
this amount re-allowed by the Distributor to broker-dealers or other persons
shall be repayable to the Fund only to the
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extent recovered by the Distributor from the broker-dealer or other person
concerned. The Distributor shall include in the form of agreement with these
broker-dealers and other persons a corresponding provision for the forfeiture by
these broker-dealers and other persons of the concession by these broker-dealers
and other persons with respect to shares sold by these broker-dealers and other
persons or their principals and redeemed or repurchased by the Fund or by the
Distributor as agent (or tendered for redemption) within seven (7) business days
after the date of confirmation of these initial purchases.
5. LIMITATIONS OF LIABILITY. The Distributor shall not be liable for any error
of judgment or mistake of law or for any loss suffered by the Fund in connection
with the matters to which this Agreement relates, except a loss resulting from
willful misfeasance, bad faith, or gross negligence on the part of the
Distributor in the performance of the Distributor's duties or from reckless
disregard by the Distributor of any obligations and duties under this Agreement.
6. PROPRIETARY AND CONFIDENTIAL INFORMATION. The Distributor agrees on behalf of
itself and the Distributor's employees to treat confidentially and as
proprietary information of the Fund all records and other information relative
to the Fund and the Fund's Portfolios and prior, present, or potential
shareholders, and not to use these records and information for any purpose other
than performance of the Distributor's responsibilities and duties hereunder,
except after prior notification to and approval in writing by the Fund, which
approval shall not be unreasonably withheld and may not be withheld where the
Distributor may be exposed to civil or criminal contempt proceedings for failure
to comply, when requested to divulge such information by duly constituted
authorities, or when so requested by the Fund.
7. INDEMNIFICATION.
a. The Fund represents, warrants, and covenants to the Distributor
that the Registration Statement contains, and that the Prospectus
at all times shall contain, all statements required by the 1933
Act and the Rules of the Commission, shall in all material
respects conform to the applicable requirements of the 1933 Act
and the Rules thereunder and shall not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, except that no representation or warranty
in this Section 7 shall apply to statements or omissions made in
reliance upon and in conformity with written information
furnished to the Fund by or on behalf of the Distributor or the
Fund's administrator (Provident Mutual Life Insurance Company) or
fund accountant (PFPC Inc.) expressly for use in the Registration
Statement or Prospectuses.
b. The Fund, on behalf of each Portfolio, agrees that the Fund or a
Portfolio, as the case may be, shall indemnify, defend, and hold
harmless the Distributor, the Distributor's directors and
officers, and any person who controls the Distributor within the
meaning of Section 15 of the 1933 Act,
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from and against any losses, claims, damages, or liabilities,
joint or several, to which the Distributor, the Distributor's
directors and officers, and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act, may
become subject under the 1933 Act or otherwise, insofar as such
losses, claims, damages, or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectuses,
or in any application or other document executed by or on behalf
of the Fund with respect to that Portfolio or are based upon
information furnished by or on behalf of the Fund with respect to
that Portfolio filed in any state in order to qualify the shares
under the securities or blue sky laws thereof ("Blue Sky
application") or arise out of, or are 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, and shall reimburse the Distributor, the
Distributor's directors and officers, and any person who controls
the Distributor within the meaning of Section 15 of the 1933 Act,
for any legal or other expenses reasonably incurred by the
Distributor, the Distributor's directors and officers, and any
person who controls the Distributor within the meaning of Section
15 of the 1933 Act, in investigating, defending or preparing to
defend any such action, proceeding or claim; provided, however,
that the Fund shall not be liable in any case to the extent that
any loss, claim, damage, or liability arises out of, or is based
upon, any untrue statement, alleged untrue statement, or omission
or alleged omission made in the Registration Statement, the
Prospectus, or any Blue Sky application with respect to a
Portfolio in reliance upon and in conformity with written
information furnished to the Fund by or on behalf of the
Distributor or either the Fund's administrator or fund accountant
specifically for inclusion therein or arising out of the failure
of the Distributor to deliver a current Prospectus.
c. The Fund on behalf of each Portfolio shall not indemnify any
person pursuant to this Section 7 unless the court or other body
before which the proceeding was brought has rendered a final
decision on the merits that this person was not liable by reason
of his or her willful misfeasance, bad faith, or gross negligence
in the performance of his or her duties, or his or her reckless
disregard of any obligations and duties, under this Agreement
("disabling conduct") or, in the absence of such a decision, a
reasonable determination (based upon a review of the facts) that
this person was not liable by reason of disabling conduct has
been made (i) by the vote of a majority of a quorum of the
trustees of the Fund who are neither "interested parties" (as
defined in the 0000 Xxx) nor parties to the proceeding or (ii) by
independent legal counsel in a written opinion.
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d. The Distributor shall indemnify and hold harmless the Fund and
each of the Fund's Portfolios and the Fund's several trustees and
officers, and any person who controls the Fund within the meaning
of Section 15 of the 1933 Act, from and against any losses,
claims, damages, or liabilities, joint or several, to which any
of these persons may become subject under the 1933 Act or
otherwise, insofar as these losses, claims, damages, or
liabilities (or actions or proceedings in respect thereof) arise
out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement, the Prospectus, or any Blue Sky application, or arise
out of, or are 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, which
statement or omission was made in reliance upon and in conformity
with information furnished in writing to the Fund or any of the
Fund's several trustees and officers by or on behalf of the
Distributor or the Fund's administrator or fund accountant
specifically for inclusion therein, and shall reimburse the Fund
and the Fund's several trustees and officers and these
controlling persons for any legal or other expenses reasonably
incurred by any of these persons investigating, defending or
preparing to defend any such action, proceeding, or claim.
e. The obligations of each Portfolio under this Section 7 shall be
the several (and not the joint or joint and several) obligation
of each Portfolio.
8. DURATION AND TERMINATION. This Agreement shall become effective upon its
execution as of the date first written above and, unless sooner terminated as
provided herein, shall continue for not more than two (2) years after that date.
Thereafter, if not terminated, this Agreement shall continue automatically for
successive terms of one year, provided, that the continuance is specifically
approved at least annually (a) by a vote of a majority of those members of the
Fund's Board who are not parties to this Agreement or "interested persons" of
any such party, cast in person at a meeting called for the purpose of voting on
such approval, and (b) by the Fund's Board or by vote of a "majority of the
outstanding voting securities" of the Fund; provided, however, that this
Agreement may be terminated by the Fund at any time, without the payment of any
penalty, by vote of a majority of the entire Board or by a vote of a "majority
of the outstanding voting securities" of the Fund on sixty- (60-) days' written
notice to the Distributor, or by the Distributor at any time, without the
payment of any penalty, on ninety- (90-) days' written notice to the Fund. This
Agreement shall automatically and immediately terminate in the event of its
"assignment." (As used in this Agreement, the terms "majority of the outstanding
voting securities," "interested persons," and "assignment" shall have the same
meanings as such terms have in the 1940 Act.)
9. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be changed,
waived, discharged, or terminated orally, but only by an instrument in writing
signed by the party against which an enforcement of the change, waiver,
discharge or termination is sought.
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10. NOTICES. Notices of any kind to be given to the Fund hereunder by the
Distributor shall be in writing and shall be duly given if mailed or delivered
to the Fund at 0000 Xxxxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxx 00000-0000;
Attention: President, or at any other address or to any other individual as
shall be so specified by the Fund to the Distributor. Notices of any kind to be
given to the Distributor hereunder by the Fund shall be in writing and shall be
duly given if mailed or delivered to 1717 Capital Management Company, 0000
Xxxxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxx 00000-0000; Attention: President, or at
any other address or to any other individual as shall be so specified by the
Distributor to the Fund.
11. MISCELLANEOUS.
a. The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the
provisions hereof or otherwise affect the construction or effect
of any of the provisions hereof. If any provision of this
Agreement shall be held or made invalid by a court decision,
statute, rule, or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and
their respective successors.
b. The names "Market Street Fund" and "Board" or Trustees" of
"Market Street Fund" refer specifically to the trust created and
the Trustees, as trustees but not individually or personally,
acting from time to time under a Declaration of Trust, dated
October ___, 2000, which is hereby referred to and a copy of the
Certificate of Trust is on file at the office of the Delaware
Secretary of State, and each of which are available at the
principal office of the Fund. The obligations of "Market Street
Fund" entered into in the name or on behalf thereof by any of the
trustees, officers, representatives, or agents are not made
individually, but in such capacities, and are not binding upon
any of the trustees, officers, shareholders, representatives, or
agents of the Fund personally, but bind only the Trust or
Portfolio property, as the case may be (as defined in the
Declaration of Trust), and all persons dealing with the Fund or
any Portfolio, or class thereof, must look solely to the Trust
property belonging to such Portfolio or class for the enforcement
of any claims against the Fund or that Portfolio or class.
12. COUNTERPARTS. This Agreement may be executed in counterparts, all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
ATTEST: MARKET STREET FUND
By: By:
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Name: Xxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxx
Title: Secretary Title: President
ATTEST: 1717 CAPITAL MANAGEMENT COMPANY
By: By:
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Name: Xxxxx Xxxxxxxxx Name: Xxxxx X. Xxxxx
Title: Assistant Secretary Title: President
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APPENDIX
to the
DISTRIBUTION AGREEMENT
between
MARKET STREET FUND
and
1717 CAPITAL MANAGEMENT COMPANY
Dedicated Portfolios
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All Pro Broad Equity Portfolio
All Pro Large Cap Growth Portfolio
All Pro Large Cap Value Portfolio
All Pro Small Cap Growth Portfolio
All Pro Small Cap Value Portfolio
Equity 500 Index Portfolio
International Portfolio
Mid Cap Growth Portfolio
Balanced Portfolio
Bond Portfolio
Money Market Portfolio
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