Exhibit e(1)
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is made as of this 16th day of September,
1999 (the "Agreement") by and between ABN AMRO Funds, a Massachusetts business
trust (the "Company") having its principal place of business at 000 Xxxxx Xx
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and Provident Distributors, Inc., a
Delaware corporation (the "Distributor") having its principal place of business
at Four Falls Corporate Center, 0xx Xxxxx, Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000-0000.
WHEREAS, the Company is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and its units of beneficial interest (such units of all series are hereinafter
called the "Shares") are registered with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933 (the "1933 Act"), and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934 (the "1934 Act"), and is a member in
good standing of the National Association of Securities Dealers, Inc. ("NASD"),
and
WHEREAS, the Company desires to retain the Distributor as distributor
for the investment portfolios of the Company to provide for the sale and
distribution of the Shares of the investment portfolios identified on Schedule A
(the "Funds") and for such additional classes or series as the Company may
issue, and the Distributor is prepared to provide such services commencing on
the date first written above, and
WHEREAS, the Company and the Distributor wish to enter into an
agreement with each other with respect to the continuous offering of the
Company's Shares.
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth herein the Distributor and the Company hereby agree as follows:
1. Service as Distributor
1.1 The Company hereby appoints and the Distributor agrees to act as the
Company's agent to sell and arrange for the sale of the Shares covered by the
Company's registration statement under the 0000 Xxx.
1.2 The Distributor agrees to use its best efforts in connection with the
distribution of Shares, including such advertising and promotion as it believes
reasonable in connection with such distribution.
The Distributor will hold itself available to receive orders, that the
Distributor reasonably believes to be in good order, for the purchase of the
Shares and will accept such orders and will transmit such orders as are so
accepted and funds received by it in payment for such Shares to the Company's
transfer agent or custodian, as appropriate, as promptly as practicable.
Purchase orders shall be deemed effective at the time and in the manner set
forth in the Prospectus. The offering price of the Shares will be the net asset
value per share of the Shares plus any applicable sales charges, determined as
set forth in the Prospectus. The Distributor shall not make any short sales of
the Shares.
The Distributor shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations made or
adopted by the SEC or by any securities association registered under the 1934
Act and which regulates the Distributor. The Distributor shall maintain the
required licenses and registration for itself as a broker-dealer, and for its
registered representatives or other associated persons, under the 1934 Act and
applicable state securities laws.
The Distributor is not authorized by the Company to give on behalf of
the Company any information or make any representations in connection with the
sale of Shares other than the information and representations contained in the
Registration Statement filed with the SEC under the 1933 Act and the 1940 Act,
as such Registration Statement may be amended from time to time, or contained in
shareholder reports or other material that may be prepared by or on behalf of
the Company for the Distributor's use.
1.3 The Company understands that the Distributor is now, and may in the future
be, the distributor of the shares of several investment companies or series
(collectively, the "Investment Entities"), including Investment Entities having
investment objectives similar to those of the Company. The Company further
understands that investors and potential investors in the Company may invest in
shares of such other Investment Entities. The Company agrees that the
Distributor's duties to such Investment Entities shall not be deemed in conflict
with its duties to the Company under this Section 1.3.
1.4 The Distributor shall not utilize any materials in connection with the sale
or offering of Shares except the Company's current prospectus and statement of
additional information and such other materials as the Company shall provide or
approve.
1.5 All activities by the Distributor and its employees, as distributor of the
Shares, shall comply with all applicable laws, rules and regulations, including,
without limitation, all rules and regulations made or adopted by the SEC or the
National Association of Securities Dealers.
1.6 The Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Company.
1.7 Whenever in its judgment such action is warranted by unusual market,
economic or political conditions or abnormal circumstances of any kind, the
Company may decline to accept any orders for, or make any sales of, the Shares
until such time as the Company deems it advisable to accept such orders and to
make such sales, and the Company advises the Distributor promptly of such
determination.
1.8 The Company agrees to pay all costs and expenses in connection with the
registration of Shares under the Securities Act of 1933, as amended, and all
expenses in connection with maintaining facilities for the issue and transfer of
Shares and for supplying information, prices and other data to be furnished by
the Fund hereunder, and all expenses in connection with the preparation and
printing of the Fund's prospectuses and statements of additional information for
regulatory purposes and for distribution to shareholders.
1.9 The Company agrees at its own expense to execute any and all documents and
to furnish any and all information and otherwise to take all actions that may be
reasonably necessary in connection with the qualification of the Shares for sale
in such states as the Distributor may designate. The Company shall notify the
Distributor in writing of the states in which the Shares may be sold and shall
notify the Distributor in writing of any changes to the information contained in
the previous notification.
1.10 The Company shall furnish from time to time, for use in connection with the
sale of the Shares, such information with respect to the Company and the Shares
as the Distributor may reasonably request. The Company shall also furnish the
Distributor upon request with: (a) audited annual statements and unaudited
semi-annual statements of a Fund's books and accounts prepared by the Company,
(b) quarterly earnings statements prepared by the Company, (c) a monthly
itemized list of the securities in the Funds, (d) monthly balance sheets as soon
as practicable after the end of each month, and (e) from time to time such
additional information regarding the financial condition of the Company as the
Distributor may reasonably request.
1.11 The Company represents to the Distributor that all Registration Statements
and prospectuses filed by the Company with the SEC under the 1933 Act with
respect to the Shares have been prepared in conformity with the requirements of
the 1933 Act and the rules and regulations of the SEC thereunder. As used in
this Agreement, the term "Registration Statement" shall mean any registration
statement and any prospectus and any statement of additional information
relating to the Company filed with the SEC and any amendments or supplements
thereto at any time filed with the SEC. Except as to information included in the
Registration Statement in reliance upon information provided to the Company by
the Distributor or any affiliate of the Distributor expressly for use in the
Registration Statement, the Company represents and warrants to the Distributor
that any Registration Statement, when such Registration Statement becomes
effective, will contain statements required to be stated therein in conformity
with the 1933 Act and the rules and regulations of the SEC; that all statements
of fact contained in any such Registration Statement will be true and correct
when such Registration Statement becomes effective; and that no Registration
Statement when such Registration Statement becomes effective will include 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 to
a purchaser of the Shares. The Distributor may, but shall not be obligated to,
propose from time to time such amendment or amendments to any Registration
Statement and such supplement or supplements to any prospectus as, in the light
of future developments, may, in the opinion of the Company's counsel, be
necessary or advisable. The Company shall promptly notify the Distributor of any
advice given to it by its counsel regarding the necessity or advisability of
amending or supplementing such Registration Statement. The Company shall not
file any amendment to any Registration Statement or supplement to any prospectus
without giving the Distributor reasonable notice thereof in advance; provided,
however, that nothing contained in this Agreement shall in any way limit the
Company's right to file at any time such amendments to any Registration
Statements and/or supplements to any prospectus, of whatever character, as the
Company may deem advisable, such right being in all respects absolute and
unconditional.
1.12 The Company agrees to indemnify and hold harmless the Distributor, its
officers, directors, and employees, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, free and harmless from and
against any and all claims, costs, expenses (including reasonable attorneys'
fees) losses, damages, charges, payments and liabilities of any sort or kind
which the Distributor, its officers, directors, employees or any such
controlling person may incur under the 1933 Act, under any other statute, at
common law or otherwise, but only to the extent that such liability or expense
incurred by the Distributor, its officers, directors, employees or any
controlling person resulting from such claims or demands arise out of the
acquisition of Shares by any person which is based upon: (i) any untrue
statement, or alleged untrue statement, of a material fact contained in the
Company's Registration Statement, prospectus, statement of additional
information, or sales literature (including amendments and supplements thereto),
or (ii) any omission, or alleged omission, to state a material fact required to
be stated in the Company's Registration Statement, prospectus, statement of
additional information or sales literature (including amendments or supplements
thereto), necessary to make the statements therein not misleading.
Notwithstanding the foregoing, the Company shall not be obligated to indemnify
any entity or person pursuant to this paragraph 1.12 against any losses, claims,
costs, charges, payments, damages, liabilities or expenses (including attorneys'
fees) of any sort or kind (i) arising out of the acquisition of Shares by any
person which is based upon any untrue statement or omission or alleged untrue
statement or omission made in reliance on and in conformity with information
furnished to the Company by the Distributor or its affiliated persons for use in
the Company's Registration Statement, prospectus, or statement of additional
information or sales literature (including amendments or supplements thereto) or
(ii) arising by reason of the Distributor's willful misfeasance, bad faith or
negligence in the performance of the Distributor's duties hereunder or by reason
of reckless disregard of its obligations or duties hereunder, from reliance on
information furnished to the Company by the Distributor or its affiliates, or
from the Distributor's refusal or failure to comply with the terms or conditions
of this Agreement.
1.13 The Distributor agrees to indemnify and hold harmless the Company, its
several officers and Trustees and each person, if any, who controls a Fund
within the meaning of Section 15 of the 1933 Act against any and all claims,
costs, expenses (including reasonable attorneys' fees), losses, damages,
charges, payments and liabilities of any sort or kind which the Company, its
officers, Trustees or any such controlling person may incur under the 1933 Act,
under any other statute, at common law or otherwise, but only to the extent that
such liability or expense incurred by the Company, its officers or Trustees, or
any controlling person resulting from such claims or demands arose (i) out of
the acquisition of any Shares by any person which may be based upon any untrue
statement, or alleged untrue statement, of a material fact contained in the
Company's Registration Statement, prospectus, statement of additional
information (including amendments and supplements thereto) or sales literature,
or any omission, or alleged omission, to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon information furnished or
confirmed in writing to the Company by the Distributor or its affiliated persons
(as defined in the 1940 Act), (ii) by reason of the Distributor's willful
misfeasance, bad faith or negligence in performance of the Distributor's duties
or obligations hereunder or by reason of reckless disregard of its duties or
obligations hereunder, (iii) from reliance on information furnished to the
Company by the Distributor or its affiliates, or (iv) from the Distributor's
refusal or failure to comply with the terms or conditions of this Agreement.
1.14 In any case in which one party hereto (the "Indemnifying Party") may be
asked to indemnify or hold the other party hereto (the "Indemnified Party")
harmless, the Indemnified Party will notify the Indemnifying Party promptly
after identifying any situation which it believes presents or appears likely to
present a claim for indemnification (an "Indemnification Claim") against the
Indemnifying Party, although the failure to do so shall not prevent recovery by
the Indemnified Party, and shall keep the Indemnifying Party advised with
respect to all developments concerning such situation. The Indemnifying Party
shall have the option to defend the Indemnified Party against any
Indemnification Claim which may be the subject of this indemnification, and, in
the event that the Indemnifying Party so elects, such defense shall be conducted
by counsel chosen by the Indemnifying Party and satisfactory to the Indemnified
Party, whose approval shall not be unreasonably withheld, and thereupon the
Indemnifying Party shall take over the complete defense of the Claim and the
Indemnified Party shall sustain no further legal or other expenses in respect of
such Claim. In the event that the Indemnifying Party elects to assume the
defense of any Indemnification Claim and retains legal counsel, the Indemnified
Party shall bear the fees and expenses of any additional legal counsel retained
by it. The Indemnified Party will not confess any Indemnification Claim or make
any compromise in any case in which the Indemnifying Party will be asked to
provide indemnification, except with the Indemnifying Party's prior written
consent. The obligations of the parties hereto under this Section 1.14 and
Section 3.1 shall survive the termination of this Agreement.
In the event that the Indemnifying Party does not elect to assume the
defense of any such suit, or in case the Indemnified Party reasonably does not
approve of counsel chosen by the Indemnifying Party, or in case there is a
conflict of interest between the Indemnifying Party and the Indemnified Party,
the Indemnifying Party will reimburse the Indemnified Party, its officers,
trustees, directors and employees, or the controlling person or persons named as
defendant or defendants in such suit, for the reasonable fees and expenses of
any counsel retained by the Indemnified Party or such Defendant. The
Indemnifying Party's indemnification agreement contained in this Section 1.14
and the Indemnifying Party's representations and warranties in this Agreement
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Party, its officers,
directors, trustees or employees, or any controlling persons, and shall survive
the delivery of any Shares. This agreement of indemnity will inure exclusively
to the Indemnified Party's benefit, to the benefit of its several officers,
directors, trustees or employees, and their respective estates and to the
benefit of the controlling persons and their successors. The Indemnifying Party
agrees promptly to notify the Indemnified Party of the commencement of any
litigation or proceedings against the Indemnifying Party or any of its officers,
trustees, employees or directors in connection with the issue and sale of any
Shares.
1.15 No Shares shall be offered by either the Distributor or the Company under
any of the provisions of this Agreement and no orders for the purchase or sale
of Shares hereunder shall be accepted by the Company if and so long as
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 5(b)(2) of
the 1933 Act is not on file with the SEC; provided, however, that nothing
contained in this Section 1.15 shall in any way restrict or have any application
to or bearing upon the Company's obligation to redeem Shares tendered for
redemption by any shareholder in accordance with the provisions of the Company's
Registration Statement, Declaration of Company, or bylaws.
1.16 The Company agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor:
(a) in the event of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement, prospectus or statement of
additional information then in effect or the initiation by service of process on
the Company of any proceeding for that purpose;
(b) of the happening of any event that makes untrue any statement of a material
fact made in the Registration Statement, prospectus or statement of additional
information then in effect or that requires the making of a change in such
Registration Statement, prospectus or statement of additional information in
order to make the statements therein not misleading; and
(c) of all actions of the SEC with respect to any amendments to any Registration
Statement, prospectus or statement of additional information which may from time
to time be filed with the SEC.
For purposes of this section, informal requests by or acts of the Staff
of the SEC shall not be deemed actions of the SEC.
2. Term and Termination of Agreement
2.1 This Agreement shall become effective immediately upon the consummation of
the acquisition of First Data Investor Services Group, Inc. by a subsidiary of
PNC Bank Corp., which the parties anticipate to occur on or about December 1,
1999, and, unless sooner terminated as provided herein, shall continue for an
initial one-year term and thereafter shall be renewed for successive one-year
terms in accordance with the requirements of the 1940 Act. This Agreement is
terminable without penalty, on at least sixty days' written notice, by either
party. This Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act and the rules thereunder).
2.2 In the event a termination notice is given by the Company, all reasonable
expenses associated with movement of records and materials and conversion
thereof will be borne by the Company.
3. Limitation of Liability
3.1 The Distributor shall at all times act in good faith and agrees to use its
best efforts within commercially reasonable limits to ensure the accuracy of all
services performed under this Agreement. The Distributor shall not be liable to
the Company for any error of judgment or mistake of law or for any loss suffered
by the Company in connection with the performance of its obligations and duties
under this Agreement, except a loss resulting from the Distributor's willful
misfeasance, bad faith or negligence in the performance of such obligations and
duties, or by reason of its reckless disregard thereof, reliance on information
furnished to the Company by the Distributor or its affiliates, or the
Distributor's refusal or failure to comply with the terms and conditions of this
Agreement. The Company shall not be liable to the Distributor for any error of
judgment or mistake of law or for any loss suffered by the Distributor, except a
loss resulting from the Company's willful misfeasance, bad faith or negligence
in the performance of its duties and obligations hereunder, or by reason of its
reckless disregard thereof.
3.2 Each party shall have the duty to mitigate damages for which the other party
may become responsible.
3.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, TRUSTEES,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR LOST PROFITS,
EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
4. EXCLUSION OF WARRANTIES
THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE DISTRIBUTOR DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, MADE TO THE COMPANY, A FUND OR ANY OTHER PERSON, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE (IRRESPECTIVE OF
ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS
PROVIDED INCIDENTAL TO SERVICES PROVIDED UNDER THIS AGREEMENT. THE DISTRIBUTOR
DISCLAIMS ANY WARRANTY OF TITLE OR NON-INFRINGEMENT EXCEPT AS OTHERWISE SET
FORTH IN THIS AGREEMENT.
5. Modifications and Waivers
No change, termination, modification, or waiver of any term or condition of the
Agreement shall be valid unless in writing signed by each party. No such writing
shall be effective as against the Distributor unless said writing is executed by
a Senior Vice President, Executive Vice President or President of the
Distributor. A party's waiver of a breach of any term or condition in the
Agreement shall not be deemed a waiver of any subsequent breach of the same or
another term or condition.
6. No Presumption Against Drafter
The Distributor and the Company have jointly participated in the
negotiation and drafting of this Agreement. The Agreement shall be construed as
if drafted jointly by the Company and the Distributor, and no presumptions arise
favoring any party by virtue of the authorship of any provision of this
Agreement.
7. Publicity
Neither the Distributor nor the Company shall release or publish news
releases, public announcements, advertising or other publicity relating to this
Agreement or to the transactions contemplated by it, other than factual
statements concerning the existence of the relationship, without prior review
and written approval of the other party; provided, however, that either party
may make such disclosures as are required by legal, accounting or regulatory
requirements after making reasonable efforts in the circumstances to consult in
advance with the other party.
8. Severability
The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not affect
the validity of the remainder of this Agreement. In such case, the parties shall
in good faith modify or substitute such provision consistent with the original
intent of the parties. Without limiting the generality of this paragraph, if a
court determines that any remedy stated in this Agreement has failed of its
essential purpose, then all other provisions of this Agreement, including the
limitations on liability and exclusion of damages, shall remain fully effective.
9. Force Majeure
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default or delay
is caused, directly or indirectly, by (i) fire, flood, elements of nature or
other acts of God; (ii) any outbreak or escalation of hostilities, war, riots or
civil disorders in any country, (iii) any act or omission of the other party or
any governmental authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the party's power to satisfy); or
(v) nonperformance by a third party or any similar cause beyond the reasonable
control of such party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In any such event, the non-performing
party shall be excused from any further performance and observance of the
obligations so affected only for so long as such circumstances prevail and such
party continues to use commercially reasonable efforts to recommence performance
or observance as soon as practicable.
10. Equipment Failures
Notwithstanding any other provision in this Agreement, in the event of
equipment failures or the occurrence of events beyond the Distributor's control
which render its performance under this Agreement impossible, the Distributor
shall at no additional expense to the Company take reasonable steps to minimize
service interruptions. The Distributor represents that the various procedures
and systems which the Distributor has implemented with regard to safekeeping
from loss or damage attributable to fire, theft or any other cause of the
records, and other data of the Company and the Distributor's records, data,
equipment, facilities and other property used in performance of its obligations
hereunder are reasonably adequate and are covered by a reasonably adequate
disaster recovery plan, and it will make such changes therein from time to time
as are reasonably required for the secure performance of its obligations
hereunder.
11. Year 2000
The Distributor's services hereunder shall be rendered, and its
computer systems used in rendering such services shall operate and function,
without any Year 2000 Error. The term "Year 2000 Error" means:
(a) any failure of the Distributor's systems to properly record, store,
process, calculate or present calendar dates falling on and after (and, if
applicable, spans of time including) January 1, 2000 as a result of the
occurrence or use of data consisting of such dates;
(b) any failure of the Distributor's systems to calculate any
information dependent on or relating to dates on or after January 1, 2000 in the
same manner, and with the same functionality, date integrity and performance, as
such systems record, store, process, calculate and present calendar dates on or
before December 31, 1999, or information dependent on or relating to such dates;
or
(c) any loss of functionality or performance with respect to the
introduction of records or processing of data containing dates falling on or
after January 1, 2000.
12. Notices
Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Company or the Distributor shall be sufficiently
given if addressed to the party and received by it at its office set forth below
or at such other place as it may from time to time designate in writing.
To the Company:
ABN Amro Funds
000 Xxxxx Xx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
To the Distributor:
Provident Distributors, Inc.
Four Falls Corporate Center, 0xx Xxxxx
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxx
13. Governing Law/Venue
The laws of theState of Delaware, excluding the laws on conflicts of
laws, and the applicable provisions of the 1940 Act shall govern the
interpretation, validity, and enforcement of this Agreement. To the extent the
provisions of Delaware law or the provisions hereof conflict with the 1940 Act,
the 1940 Act shall control. All actions arising from or related to this
Agreement shall be brought in the state and federal courts sitting in the City
of Wilmington, and the Distributor and the Company hereby submit themselves to
the exclusive jurisdiction of those courts
14. Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and which collectively shall be deemed
to constitute only one instrument.
15. Captions
The captions of this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
16. Successors
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and is not intended to confer
upon any other person any rights or remedies hereunder.
17. Arbitration
Any claim or controversy arising out of or related to this Agreement,
or breach hereof, shall be settled by arbitration administered by the American
Arbitration Association in Wilmington, Delaware in accordance with its
applicable rules, except that the Federal Rules of Evidence and the Federal
Rules of Civil Procedure with respect to the discovery process shall apply. The
parties hereby agree that judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction.
The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law provisions
in this Agreement, the parties agree that the Federal Arbitration Act shall
govern and control with respect to the provisions of this Article.
18. Confidentiality
18.1 Confidentiality. In the course of performance under this Agreement, each
party may have access to and receive disclosure of confidential information
about the other party, including but not limited to that party's financial
information, financial strategies, marketing plans, customer profiles, sales
estimates, business plans and a variety of other information which the receiving
party should reasonably consider to be confidential and proprietary (hereinafter
referred to as "Confidential Information"). The contents of this Agreement are
also Confidential Information. Each party shall exercise reasonable care to
safeguard the confidentiality of the Confidential Information of the other.
Confidential Information of the disclosing party shall be used by the receiving
party solely in the performance of the receiving party's obligations pursuant to
this Agreement. The receiving party shall receive Confidential Information in
confidence and not disclose Confidential Information of the disclosing party to
any third party, except as may be necessary for the receiving party to perform
its obligations pursuant to this Agreement, as required by law or a court of
competent jurisdiction or by a regulatory agency with supervisory
responsibilities over the disclosing party, for confidential consultations with
accountants or attorneys, or as may otherwise be agreed upon in writing by the
disclosing party. Each party may, however, disclose Confidential Information to
its parent corporation, affiliates, subsidiaries and affiliated companies and
employees, provided that each shall use reasonable efforts to ensure that the
Confidential Information is not duplicated or disclosed in breach of this
Agreement.
Each party acknowledges that breach of the restrictions on use,
dissemination or disclosure of any Confidential Information of the other party
would result in immediate and irreparable harm, and money damages would be
inadequate to compensate the other party for that harm. Each party shall be
entitled to equitable relief, in addition to all other available remedies, to
redress any such breach.
18.2 Ownership. In the course of performance under this Agreement, the
Distributor may create reports, marketing materials, promotional materials, and
other materials relating to the Company ("Results"). The Company acknowledges
and agrees that the Distributor is the sole owner of all rights (including, but
not limited to, copyrights) to any Results, or aspects of Results, that are used
by the Distributor for administering its clients generally and are not created
solely for the Company. Notwithstanding the foregoing, all rights (including,
but not limited to, copyrights) to any Results that are created solely for the
Company (including, but not limited to, any marketing materials and promotional
materials created solely in connection with the Company) are solely owned by the
Company and are assigned to the Company by the Distributor and the Company shall
have a perpetual, royalty free, worldwide, transferable license to use, copy,
transmit, distribute and modify any Results owned by the Distributor as may
reasonably be necessary for the Company to exploit fully all of its rights in
any Results owned by the Company.
19. Obligations of the Company
The Company and the Distributor agree that the obligations of the Company under
the Agreement shall not be binding upon any of the Trustees, shareholders,
nominees, officers, employees or agents, whether past, present or future, of the
Company individually, but are binding only upon the assets and property of the
Company, as provided in the Declaration of Trust of the Company. The execution
and delivery of this Agreement have been authorized by the Directors of the
Company, and signed by an authorized officer of the Company, acting as such, and
neither such authorization by such Trustees nor such execution and delivery by
such officer shall be deemed to have been made by any of them or any shareholder
of the Company individually or to impose any liability on any of them or any
shareholder of the Company personally, but shall bind only the assets and
property of the Company as provided in the Declaration of Trust of the Company.
The Company and the Distributor further agree that the obligations of a Fund
under the Agreement shall not be binding on any other Fund, but are binding only
upon the assets and property of such Fund, as provided in the Declaration of
Trust.
20. Entire Agreement
This Agreement, including all Schedules hereto, constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous proposals, agreements, contracts, representations, and
understandings, whether written or oral, between the parties with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
ABN AMRO FUNDS
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
PROVIDENT DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President
Exhibit e(1)
SCHEDULE A to the Distribution Agreement between ABN Amro Funds and Provident
Distributors, Inc.
Name of Funds
Money Market Funds
Treasury Money Market Fund
Government Money Market Fund
Money Market Fund
Tax-Exempt Money Market Fund
Fixed Income Funds
Fixed Income Fund
Intermediate Government Fixed Income Fund
Tax-Exempt Fixed Income Fund
International Fixed Income Fund
Limited Volatility Fixed Income Fund
Balanced Funds
Balanced Fund
Equity Funds
Value Fund
Growth Fund
International Equity Fund
Small Cap Fund
Asian Tigers Fund
TransEurope Fund
Latin America Equity Fund
Real Estate Fund
Institutional Funds
Prime Money Market Fund
Treasury Money Market Fund
Government Money Market Fund
