DELAWARE POOLED TRUST, INC.
THE EMERGING MARKETS PORTFOLIO
DISTRIBUTION AGREEMENT
Agreement made as of this 14th day of April, 1997 by and between
DELAWARE POOLED TRUST, INC., a Maryland corporation (the "Fund") for EMERGING
MARKETS 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 large institutional 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 Contract 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 Contract,
and except with the Distributor's written consent or
as provided in Paragraph 3(b)
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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 stockholders, or to sell stock to existing
stockholders 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 stockholders
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").
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(b) The provisions of this Contract 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 stockholders, 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
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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
stockholders;
(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
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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 approval of the Fund's shareholders;
(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
stockholders (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
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(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.
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
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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 and the provisions of its Articles of
Incorporation and in accordance with Rule 26(e) of 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
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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.
(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.
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(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 Contract. 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
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hereunder or by reason of their reckless disregard of their
obligations and duties under this Contract.
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 Contract 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 Contract 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
Contract 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 Contract 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 Contract 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 Contract and not to the holder of
any share of the Fund.
14. (a) This Contract 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 Contract on
written notice to the Fund at any time in case the
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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 Contract at any time by giving
the Fund written notice of its intention to terminate
the contract 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 Contract 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 stockholders 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.
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The Fund may also terminate this Contract 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.
15. The validity, interpretation and construction of this
Contract, and of each part hereof, will be governed by
the laws of the Commonwealth of Pennsylvania.
16. In the event any provision of this Contract is determined to
be void or unenforceable, such determination shall not affect
the remainder of the Contract, which shall continue to be in
force.
DELAWARE DISTRIBUTORS, L.P.
By: DELAWARE DISTRIBUTORS, INC.,
General Partner
Attest
/s/ Xxxxx X. X'Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Name:Xxxxx X. X'Xxxxxx Name: Xxxxx X. Xxxxxx
Title:Assistant Vice President Title: President and Chief
Assistant Secretary Executive Officer
DELAWARE POOLED TRUST, INC.
for THE EMERGING MARKETS PORTFOLIO
Attest:
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
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Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: President and Chief
Assistant Secretary Executive Officer
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