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EXHIBIT 23(e)(1)
MARKET STREET FUND
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement"), made as of the close of
business on January 26, 2001, the date that Market Street Fund, Inc., a Maryland
corporation, reorganizes and redomesticates into Market Street Fund, a Delaware
business trust, 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:
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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
30, 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");
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 January 26, 2001, 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
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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 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
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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 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
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Distributor, the Distributor's directors and officers, and any person
who controls the Distributor within the meaning of Section 15 of the
1933 Act, 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.
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
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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 29, 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: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxx
Title: Secretary Title: President
Compliance Officer
ATTEST: 1717 CAPITAL MANAGEMENT
COMPANY
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------- --------------------------
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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