EX99.E1(VII)
Exhibit 23(e)(1)(vii)
DELAWARE POOLED TRUST, INC.
THE AGGREGATE FIXED INCOME PORTFOLIO
DISTRIBUTION AGREEMENT
Agreement made as of this 24th day of December, 1997 by and between
DELAWARE POOLED TRUST, INC., a Maryland corporation (the "Fund") for THE
AGGREGATE FIXED INCOME 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
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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.
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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 to give such financial statements and other
information as may be by the SEC or the proper public bodies
of the states in which the may be qualified;
(2) from time to time, will furnish the Distributor as as
reasonably practicable the following information: (a) true
copies of its reports to shareholders, and unaudited
quarterly balance sheets and statements for the period from
the beginning of the then current fiscal to such balance
` sheet dates; and (b) a profit and loss
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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;
(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;
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(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
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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 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
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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.
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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
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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
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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.
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(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.
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.
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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
Assistant Secretary Chief Executive Officer
DELAWARE POOLED TRUST, INC.
for THE AGGREGATE FIXED INCOME
PORTFOLIO
Attest:
/s/Xxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title: Executive Vice President
Assistant Secretary Chief Operating Officer
Chief Financial Officer
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