EXHIBIT (e)(1)(xvi)
DELAWARE POOLED TRUST, INC.
THE INTERNATIONAL LARGE-CAP EQUITY PORTFOLIO
DISTRIBUTION AGREEMENT
Agreement made as of this 15th day of November, 1999 by and between
DELAWARE POOLED TRUST, INC., a Maryland corporation (the "Fund") for THE
INTERNATIONAL LARGE-CAP 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
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independent public accountant as above required, the Fund
may furnish a true copy of its detailed semi-annual report
to its shareholders;
(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.
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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.
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(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
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provisions hereof are for the sole and exclusive benefit of the
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 Directors 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 Directors 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.
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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.
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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
Attest: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Assistant Secretary
DELAWARE POOLED TRUST, INC.
for THE INTERNATIONAL LARGE-CAP EQUITY PORTFOLIO
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President/Chief Executive Officer
Attest: /s/ Xxxxxxxx X. Maestro
Name: Xxxxxxxx X. Maestro
Title: Assistant Secretary
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