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EXHIBIT 5.h
INVESTMENT MANAGEMENT CONSULTING AGREEMENT
THIS INVESTMENT MANAGEMENT CONSULTING AGREEMENT ("Agreement"), made
this __ day of April, 1998 by and between Providentmutual Investment Management
Company, a Pennsylvania corporation ("Adviser"), and Wilshire Associates
Incorporated, a California corporation ("Advisory Consultant").
Adviser and Advisory Consultant agree as follows:
1. Adviser hereby engages the Advisory Consultant to provide non-discretionary
investment advisory services, as described herein, in connection with Adviser's
management of the Large Cap Growth Portfolio, Small Cap Growth Portfolio, Large
Cap Value Portfolio and Small Cap Value Portfolio (the "Portfolios") of Market
Street Fund, Inc. (the "Fund"). Pursuant to this Agreement and subject to the
oversight and supervision by the officers and the board of directors of the
Fund, Advisory Consultant shall, from time to time, assist Adviser in developing
proposals for the board of directors as to establishing and revising the
investment objective(s), policies and restrictions of the Portfolios and
identifying, selecting and evaluating other Advisory Consultants to invest and
reinvest the assets of the Portfolios, or portions of the assets of the
Portfolios.
2. Advisory Consultant hereby accepts engagement by Adviser in the foregoing
capacity and agrees, at its own expense, to render the services set forth herein
and to provide the office space, furnishings, equipment and personnel required
by it to perform such services on the terms and for the compensation provided in
this Agreement. Advisory Consultant acknowledges that this Agreement is an
investment advisory contract of the type referenced in Section 15(a) of
Investment Company Act of 1940 (the "1940 Act").
3. In particular, Advisory Consultant shall assist Adviser gathering data and
performing the quantitative analysis necessary to identify the styles and past
performance of other potential new Advisory Consultants as well as performing
similar ongoing quantitative analysis of the performance of each other Advisory
Consultant. Advisory Consultant also shall assist Adviser to perform a
continuing quantitative and qualitative evaluation of the skills and abilities
of such other Advisory Consultants in managing assets pursuant to a particular
management style. In this connection, Advisory Consultant shall provide Adviser
and the officers and directors of the Fund with such reports and documentation
as the latter shall reasonably request regarding Advisory Consultant's
activities for the Adviser.
4. Advisory Consultant shall carry out its responsibilities under this Agreement
in compliance with: (a) each Portfolio's investment objective, policies and
restrictions as set forth in the Fund's then current registration statement, (b)
such policies or directives as the Fund's directors from time to time may
establish or issue, and (c) applicable law and related regulations. Adviser
shall promptly notify Advisory Consultant in writing of changes to (a) or (b)
above and shall notify Advisory Consultant in writing of changes to (c) above
promptly after it becomes
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aware of such changes. Advisory Consultant shall promptly notify Adviser in
writing in the event that Advisory Consultant becomes aware that any other
Advisory Consultant does not, or cannot, perform its responsibilities under its
sub-advisory agreement with Adviser.
5. Advisory Consultant is not responsible for implementing the investment
objective(s) or policies of the Portfolios. In particular, Advisory Consultant
is not responsible to place orders for the purchase or sale of securities or
other investments for a Portfolio with brokers or dealers. In this connection,
Advisory Consultant is not authorized to give instructions to the Fund's
custodian as to deliveries of securities or other investments and payments of
cash for the account of the Portfolios.
6. Advisory Consultant shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Adviser, the Fund or
the Portfolios or otherwise be deemed agents of Adviser, the Fund or the
Portfolios.
7. Advisory Consultant is registered with the U.S. Securities and Exchange
Commission under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"). Advisory Consultant shall remain so registered throughout the term of
this Agreement and shall notify Adviser immediately if Advisory Consultant
ceases to be so registered as an investment adviser.
8. Advisory Consultant: (a) is duly organized and validly existing under the
laws of the State of California with the power to own and possess its assets and
carry on its business as it is now being conducted, (b) has the authority to
enter into and perform the services contemplated by this Agreement, (c) is not
prohibited by the 1940 Act or the Advisers Act from performing the services
contemplated by this Agreement, (d) has met, and will continue to seek to meet
for the duration of this Agreement, any other applicable federal or state
requirements, or the applicable requirements of any regulatory or industry
self-regulatory agency, necessary to be met in order to perform the services
this Agreement, and (e) will promptly notify Adviser of the occurrence of any
event that would disqualify it from serving as an investment adviser to an
investment company pursuant to Section 9(a) of the 1940 Act.
9. Adviser: (a) is duly organized and validly existing under the laws of the
State of Delaware with the power to own and possess its assets and carry on its
business as it is now being conducted, (b) has the authority to enter into and
perform the services contemplated by this Agreement, (c) is not prohibited by
the 1940 Act or the Advisers Act from performing the services contemplated by
this Agreement, (d) has met, and will continue to seek to meet for the duration
of this Agreement, any other applicable federal or state requirements, or the
applicable requirements of any regulatory or industry self-regulatory agency,
necessary to be met in order to perform the services this Agreement, and (e)
will promptly notify Advisory Consultant of the occurance of any event that
would disqualify it from serving as an investment adviser to an investment
company pursuant to Section 9(a) of the 1940 Act. Adviser represents that the
Fund is (and during the term of this Agreement, will remain) registered as an
open-end management
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investment company under the 1940 Act and that the shares of the Fund's stock
representing an interest in the Portfolio are (and during the term of this
Agreement will remain) registered under the Securities Act of 1933 and under any
applicable state securities laws.
10. Advisory Consultant has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and will provide Adviser and the
Fund with a copy of that code, together with evidence of its adoption. Within 45
days of the end of each calendar quarter during which this Agreement remains in
effect, the president or a vice president of Advisory Consultant shall certify
to Adviser or the Fund that, in connection with the services that it has
provided under this Agreement, it has complied with the requirements of Rule
17j-1 during the previous quarter and that there have been no violations of its
code of ethics or, if such a violation has occurred, that appropriate action has
been taken in response to such violation.
11. Advisory Consultant or an affiliated person of Advisory Consultant may act
as broker for the Portfolios in connection with the purchase or sale of
securities or other investments for the Portfolios, subject to: (a) the
requirement that the Advisory Consultant (who is not Advisory Consultant or an
affiliated person of Advisory Consultant) having investment discretion with
regard to the Portfolio for which the purchase or sale is being executed, seeks
to obtain best execution and price within the policy guidelines determined by
the Fund's board of directors and set forth in the Fund's current registration
statement; (b) the provisions of the Advisers Act; (c) the provisions of the
Securities Exchange Act of 1934, as amended; and (d) other applicable provisions
of law. Such brokerage services are not within the scope of the duties of
Advisory Consultant under this Agreement. Subject to the requirements of
applicable law and any procedures adopted by Fund's board of directors, Advisory
Consultant or its affiliated persons may receive brokerage commissions, fees or
other remuneration from the Portfolios or the Fund for such services in addition
to Advisory Consultant's fees for services under this Agreement.
12. For the services rendered, the facilities furnished and the expenses assumed
by Advisory Consultant, Adviser shall pay Advisory Consultant at the end of each
month a fee based on the average daily net assets of the Portfolios at the
following annual rates:
0.5%
Advisory Consultant's fee shall be accrued daily at 1/365th of the applicable
annual rate set forth above. For the purpose of accruing compensation, the net
assets of the Portfolios shall be determined in the manner and on the dates set
forth in the current prospectus of the Fund, and, on days on which the net
assets are not so determined, the net asset value computation to be used shall
be as determined on the immediately preceding day on which the net assets were
determined. In the event of termination of this Agreement, all compensation due
through the date of termination will be calculated on a pro-rated basis through
the date of termination and paid within thirty business days of the date of
termination.
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During any period when the determination of net asset value is
suspended, the net asset value of a Portfolio as of the last business day prior
to such suspension shall for this purpose be deemed to be the net asset value at
the close of each succeeding business day until it is again determined.
13. Advisory Consultant hereby undertakes and agrees to provide, or assist the
Adviser to create, in the form and for the period required by Rule 31a-2 under
the 1940 Act, appropriate records relating to the information that it provides
to Adviser under this Agreement about the Portfolios' investment sub-advisers
that are required to be maintained by the Fund or Adviser pursuant to the
requirements of paragraphs (b)(11) and (f) of Rule 31a-1 under the 1940 Act and
such additional records as the Adviser may be required to create and maintain in
connection with an order of the Securities and Exchange Commission exempting it
and the Fund from the otherwise applicable shareholder approval requirements of
Section 15(a) of the 1940 Act in connection with the hiring of certain other
sub-advisers for the Portfolios.
14. Advisory Consultant agrees that it will not disclose or use any records or
confidential information obtained pursuant to this Agreement in any manner
whatsoever except as authorized in this Agreement, or specifically by Adviser or
the Fund, or if such disclosure is required by federal or state regulatory
authorities.
15. In the absence of willful misfeasance, bad faith or gross negligence on the
part of Advisory Consultant or its officers, directors or employees, or reckless
disregard by Advisory Consultant of its duties under this Agreement, Advisory
Consultant shall not be liable to Adviser, the Portfolios, the Fund or to any
shareholder of the Portfolios for any act or omission in the course of, or
connected with, rendering services hereunder or for any losses that may be
sustained in the purchase, holding or sale of any security, except to the extent
specified in Section 36(b) of the 1940 Act concerning loss resulting from a
breach of fiduciary duty with respect to the receipt of compensation for
services.
16. This Agreement shall not become effective for any Portfolio unless and until
it is approved by the board of directors of the Fund, including a majority of
directors who are not parties to this Agreement or interested persons of any
such party to this Agreement and a majority of the outstanding shares of the
class of the Fund's stock representing an interest in the Portfolio. This
Agreement shall come into full force and effect on the date which it is so
approved for each Portfolio. This Agreement shall continue in effect for two
years and shall thereafter continue in effect from year to year so long as such
continuance is specifically approved at least annually by (a) the board of
directors of the Fund, or by the vote of a majority of the outstanding shares of
the class of stock representing an interest in the Portfolio to which it
relates; and (b) a majority of those directors 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.
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17. This Agreement may be terminated (or terminated for any Portfolio) at any
time without the payment of any penalty, by the Fund's board of directors, or by
vote of a majority of the outstanding shares of the class of stock representing
an interest in the Portfolio on sixty days written notice to the Adviser and
Advisory Consultant, or by the Adviser, or by the Advisory Consultant, on sixty
days written notice to the other. This Agreement shall automatically terminate
in the event of its assignment or in the event of the termination of the
investment advisory agreement between the Adviser and the Fund regarding the
Adviser's management of the Portfolios.
18. This Agreement may be amended by the parties only if such amendment is
specifically approved by (a) a majority of those directors 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, if required by
applicable law, (b) the vote of a majority of the outstanding shares of the
class of the Fund's stock representing an interest in each Portfolio to which
the amendment applies.
19. The terms "assignment", "affiliated person" and "interested person", when
used in this Agreement, shall have the respective meanings specified in the 1940
Act. The term "majority of the outstanding shares of the class" means the lesser
of (a) 67% or more of the shares of such class present at a meeting if more than
50% of such shares are present or represented by proxy or (b) more than 50% of
the shares of such class.
20. This Agreement shall be construed in accordance with laws of the
Commonwealth of Pennsylvania, and applicable provisions of the Advisers Act and
1940 Act.
21. 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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
ATTEST: Providentmutual Investment Management Company
__________________________ By:_______________________________________
Title: President
ATTEST: Wilshire Associates Incorporated
__________________________ By: ______________________________
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Title: ___________________________
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