EXHIBIT (e)(1)(xviii)
DELAWARE POOLED TRUST
THE All-CAP GROWTH EQUITY PORTFOLIO
DISTRIBUTION AGREEMENT
Agreement made as of this 28th day of February, 2000 by and between
DELAWARE POOLED TRUST, a Delaware business trust (the "Fund") for THE All-CAP
GROWTH EQUITY PORTFOLIO (the "Portfolio"), and DELAWARE DISTRIBUTORS, L.P. (the
"Distributor"), a Delaware limited partnership.
WITNESSETH
WHEREAS, the Fund is a series investment company regulated by Federal
and State regulatory bodies, and
WHEREAS, the Distributor is engaged in the business of promoting the
distribution of the securities of investment companies and, in connection
therewith and acting solely as agent for such investment companies and not as
principal, advertising, promoting, offering and selling their securities to the
public, and
WHEREAS, the Fund desires to distribute its Portfolio securities
(collectively, the "shares") with the assistance of the Distributor as
underwriter,
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. The Fund hereby engages the Distributor to promote the
distribution of Portfolio shares and, in connection therewith and
as agent for the Fund and not as principal, to advertise, promote,
offer and sell Portfolio shares to certain institutional and other
eligible investors.
2. The Distributor agrees to serve as distributor of Portfolio shares
and, as agent for the Fund and not as principal, to advertise,
promote and use its best efforts to sell Portfolio shares wherever
their sale is legal, either through dealers or otherwise, in such
manner, not inconsistent with the law and the provisions of this
Agreement and the Fund's Registration Statement under the
Securities Act of 1933 and the Prospectus contained therein as may
be determined by the Fund from time to time. The Distributor will
bear all costs of financing any activity which is primarily
intended to result in the sale of Portfolio shares, including, but
not necessarily limited to, advertising, compensation of
underwriters, dealers and sales personnel, the printing and
mailing of sales literature and distribution of Portfolio shares.
3. (a) The Fund agrees to make available for sale by the Fund
through the Distributor all or such part of the authorized
but unissued Portfolio shares as the Distributor shall
require from time to time, all subject to the further
provisions of this Agreement, and except with the
Distributor's written consent or as provided in Paragraph
3(b) hereof, it will not sell Portfolio shares other than
through the efforts of the Distributor.
(b) The Fund reserves the right from time to time (1) to sell
and issue shares other than for cash; (2) to issue shares in
exchange for substantially all of the assets of any
corporation or trust, or in exchange for shares of any
corporation or trust; (3) to pay stock dividends to its
shareholders, or to pay dividends in cash or stock at the
option of its shareholders, or to sell stock to existing
shareholders to the extent of dividends payable from time to
time in cash, or to split up or combine its outstanding
shares of common stock; (4) to offer shares for cash to its
shareholders as a whole, by the use of transferable rights
or otherwise, and to sell and issue shares pursuant to such
offers; and (5) to act as its own distributor in any
jurisdiction where the Distributor is not registered as a
broker-dealer.
4. The Fund warrants the following:
(a) The Fund is, or will be, a properly registered investment
company, and any and all Portfolio shares which it will sell
through the Distributor are, or will be, properly registered
with the Securities and Exchange Commission ("SEC").
(b) The provisions of this Agreement do not violate the terms of
any instrument by which the Fund is bound, nor do they
violate any law or regulation of any body having
jurisdiction over the Fund or its property.
5. (a) The Fund will supply to the Distributor a conformed copy of
the Registration Statement, all amendments thereto, all
exhibits, and each Prospectus.
(b) The Fund will register or qualify Portfolio shares for sales
in such states as is deemed desirable.
(c) The Fund, without expense to the Distributor,
(1) will give and continue to give such financial
statements and other information as may be required by
the SEC or the proper public bodies of the states in
which the shares may be qualified;
(2) from time to time, will furnish the Distributor as
soon as reasonably practicable the following
information: (a) true copies of its periodic reports
to shareholders, and unaudited quarterly balance
sheets and income statements for the period from the
beginning of the then current fiscal year to such
balance sheet dates; and (b) a profit and loss
statement and a balance sheet at the end of each
fiscal half year accompanied by a copy of the
certificate or report thereon of an independent public
accountant (who may be the regular accountant for the
Fund), provided that in lieu of furnishing at the end
of any fiscal half year a statement of profit and loss
and a balance sheet certified by an independent public
accountant as above required, the Fund may furnish a
true copy of its detailed semi-annual report to its
shareholders;
2
(3) will promptly advise the Distributor in person or by
telephone or telegraph, and promptly confirm such
advice in writing, (a) when any amendment or
supplement to the Registration Statement becomes
effective, (b) of any request by the SEC for
amendments or supplements to the Registration
Statement or the Prospectus or for additional
information, and (c) of the issuance by the SEC of any
Stop Order suspending the effectiveness of the
Registration Statement, or the initiation of any
proceedings for that purpose;
(4) if at any time the SEC shall issue any Stop Order
suspending the effectiveness of the Registration
Statement, will make every reasonable effort to obtain
the lifting of such order at the earliest possible
moment;
(5) will from time to time, use its best efforts to keep a
sufficient supply of Portfolio shares authorized, any
increases being subject to the approval of
shareholders, as may be required;
(6) before filing any further amendment to the
Registration Statement or to the Prospectus, will
furnish the Distributor copies of the proposed
amendment and will not, at any time, whether before or
after the effective date of the Registration
Statement, file any amendment to the Registration
Statement or supplement to the Prospectus of which the
Distributor shall not previously have been advised or
to which the Distributor shall reasonably object
(based upon the accuracy or completeness thereof) in
writing;
(7) will continue to make available to its shareholders
(and forward copies to the Distributor) such periodic,
interim and any other reports as are now, or as
hereafter may be, required by the provisions of the
Investment Company Act of 1940; and
(8) will, for the purpose of computing the offering price
of Portfolio shares, advise the Distributor within one
hour after the close of the New York Stock Exchange
(or as soon as practicable thereafter) on each
business day upon which the New York Stock Exchange
may be open of the net asset value per share of
Portfolio shares of common stock outstanding,
determined in accordance with any applicable
provisions of law and the provisions of the Articles
of Incorporation, as amended, of the Fund as of the
close of business on such business day. In the event
that prices are to be calculated more than once daily,
the Fund will promptly advise the Distributor of the
time of each calculation and the price computed at
each such time.
3
6. The Distributor agrees to submit to the Fund, prior to its use,
the form of all sales literature proposed to be generally
disseminated by or for the Distributor on behalf of the Fund, all
advertisements proposed to be used by the Distributor, and all
sales literature or advertisements prepared by or for the
Distributor for such dissemination or for use by others in
connection with the sale of Portfolio shares. The Distributor also
agrees that the Distributor will submit such sales literature and
advertisements to the NASD, SEC or other regulatory agency as from
time to time may be appropriate, considering practices then
current in the industry. The Distributor agrees not to use or to
permit others to use such sales literature or advertisements
without the written consent of the Fund if any regulatory agency
expresses objection thereto or if the Fund delivers to the
Distributor a written objection thereto.
7. The purchase price of each share sold hereunder shall be the net
asset value per share of Portfolio shares outstanding, determined
by the Fund in accordance with any applicable provision of law,
the provisions of its Articles of Incorporation and the Rules of
Fair Practice of the National Association of Securities Dealers,
Inc.
8. The responsibility of the Distributor hereunder shall be limited
to the promotion of sales of Portfolio shares. The Distributor
shall undertake to promote such sales solely as agent of the Fund,
and shall not purchase or sell such shares as principal. Orders
for Portfolio shares and payment for such orders shall be directed
to the Fund for acceptance or to the Fund's agent, Delaware
Service Company, Inc. ("DSC") for acceptance on behalf of the
Fund. The Distributor is not empowered to approve orders for sales
of Portfolio shares or accept payment for such orders. Sales of
Portfolio shares shall be deemed to be made when and where
accepted by the Fund or by DSC on behalf of the Fund.
9. With respect to the apportionment of costs between the Fund and
the Distributor of activities with which both are concerned, the
following will apply:
(a) The Fund and the Distributor will cooperate in preparing the
Registration Statements, the Prospectus, and all amendments,
supplements and replacements thereto. The Fund will pay all
costs incurred in the preparation of the Fund's registration
statement, including typesetting, the costs incurred in
printing and mailing prospectuses to its own shareholders
and fees and expenses of counsel and accountants.
(b) The Distributor will pay the costs incurred in printing and
mailing copies of prospectuses to prospective investors.
4
(c) The Distributor will pay advertising and promotional
expenses, including the costs of literature sent to
prospective investors.
(d) The Fund will pay the costs and fees incurred in registering
Portfolio shares with the various states and with the SEC.
(e) The Distributor will pay the costs of any additional copies
of the Fund reports and other Fund literature supplied to
the Distributor by the Fund for sales promotion purposes.
10. The Distributor may engage in other business, provided such other
business does not interfere with the performance by the
Distributor of its obligations under this Agreement. The
Distributor may serve as distributor for and promote the
distribution of and sell and offer for sale the securities of
other investment companies.
11. The Fund agrees to indemnify, defend and hold harmless from the
assets of the Portfolio, the Distributor and each person, if any,
who controls the Distributor within the meaning of Section 15 of
the Securities Act of 1933, from and against any and all losses,
damages, or liabilities to which, jointly or severally, the
Distributor or such controlling person may become subject, insofar
as the losses, damages or liabilities arise out of the performance
of its duties hereunder, except that the Fund shall not be liable
for indemnification of the Distributor or any controlling person
thereof for any liability to the Fund or its security holders to
which they would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of
their duties hereunder or by reason of their reckless disregard of
their obligations and duties under this Agreement.
12. Copies of financial reports, registration statements and
prospectuses, as well as demands, notices, requests, consents,
waivers, and other communications in writing which it may be
necessary or desirable for either party to deliver or furnish to
the other will be duly delivered or furnished, if delivered to
such party at its address shown below during regular business
hours, or if sent to that party by registered mail or by prepaid
telegram filed with an office or with an agent of Western Union,
in all cases within the time or times herein prescribed, addressed
to the recipient at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, or at such other address as the Fund or the Distributor may
designate in writing and furnish to the other.
13. This Agreement shall not be assigned, as that term is defined in
the Investment Company Act of 1940, by the Distributor and shall
terminate automatically in the event of its attempted assignment
by the Distributor. This Agreement shall not be assigned by the
Fund without the written consent of the Distributor signed by its
duly authorized officers and delivered to the Fund. Except as
specifically provided in the indemnification provisions contained
in Paragraph 11 hereof, this Agreement and all conditions and
provisions hereof are for the sole and exclusive benefit of the
5
parties hereto and their legal successors and no express or
implied provision of this Agreement is intended or shall be
construed to give any person other than the parties hereto and
their legal successors, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provisions
herein contained. The Distributor shall look only to the assets of
the Portfolio to meet the obligations of, or claims against, the
Fund under this Agreement and not to the holder of any share of
the Fund.
14. (a) This Agreement shall remain in force for a period of two
years from the date of this Agreement and from year to year
thereafter, but only so long as such continuance is
specifically approved at least annually by the Board of
Trustees or by vote of a majority of the outstanding voting
securities of the Portfolio and only if the terms and the
renewal thereof have been approved by the vote of a majority
of the Trustees of the Fund, who are not parties hereto or
interested persons of any such party, cast in person at a
meeting called for the purpose of voting on such approval.
(b) The Distributor may terminate this Agreement on written
notice to the Fund at any time in case the effectiveness of
the Registration Statement shall be suspended, or in case
Stop Order proceedings are initiated by the SEC in respect
of the Registration Statement and such proceedings are not
withdrawn or terminated within thirty days. The Distributor
may also terminate this Agreement at any time by giving the
Fund written notice of its intention to terminate it at the
expiration of three months from the date of delivery of such
written notice of intention to the Fund.
(c) The Fund may terminate this Agreement at any time on at
least thirty days prior written notice to the Distributor
(1) if proceedings are commenced by the Distributor or any
of its partners for the Distributor's liquidation or
dissolution or the winding up of the Distributor's affairs;
(2) if a receiver or trustee of the Distributor or any of
its property is appointed and such appointment is not
vacated within thirty days thereafter; (3) if, due to any
action by or before any court or any federal or state
commission, regulatory body, or administrative agency or
other governmental body, the Distributor shall be prevented
from selling securities in the United States or because of
any action or conduct on the Distributor's part, sales of
Portfolio shares are not qualified for sale. The Fund may
also terminate this Agreement at any time upon prior written
notice to the Distributor of its intention to so terminate
at the expiration of three months from the date of the
delivery of such written notice to the Distributor.
6
15. The validity, interpretation and construction of this Agreement,
and of each part hereof, will be governed by the laws of the
Commonwealth of Pennsylvania.
16. In the event any provision of this Agreement is determined to be
void or unenforceable, such determination shall not affect the
remainder of the Agreement, which shall continue to be in force.
DELAWARE DISTRIBUTORS, L.P.
By: DELAWARE DISTRIBUTORS, INC.,
General Partner
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
DELAWARE POOLED TRUST
for THE All-CAP GROWTH EQUITY PORTFOLIO
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President, Chief Executive Officer,
Chief Operating Officer and
Chief Financial Officer
7
