Form
Subject to Board Approval
EX-99.B6AIX
Exhibit 24(b)(6)(a)(ix)
DELAWARE POOLED TRUST, INC.
THE SMALL-CAP GROWTH 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 Growth
Equity Portfolio (the "Portfolio"), and DELAWARE DISTRIBUTORS, L.P. (the
"Distributor"), a Delaware limited partnership.
WITNESSETH
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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
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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;
(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
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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 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.
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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 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
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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.
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 GROWTH EQUITY
PORTFOLIO
Attest:
___________________________ By:________________________________
Name: Name:
Title: Title:
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