EX-99.E1(XI)
Exhibit 23(e)(1)(xi)
DELAWARE POOLED TRUST, INC.
THE SMALL-CAP VALUE EQUITY PORTFOLIO
DISTRIBUTION AGREEMENT
Agreement made as of this day of , 199 by and between DELAWARE
POOLED TRUST, INC., a Maryland corporation (the "Fund") for The Small-Cap Value
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 the classes of investors described in the
Portfolio's Prospectus, as such may be amended from time to time.
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;
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(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 Conduct Rules 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.
(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.
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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 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.
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(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.
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.
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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
Attest:
____________________________ By:_____________________________
Name: Name:
Title: Title:
DELAWARE POOLED TRUST, INC.
for THE SMALL-CAP VALUE EQUITY
PORTFOLIO
Attest:
___________________________ By:_____________________________
Name: Name:
Title: Title:
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