OPTIMUM FUND TRUST
DISTRIBUTION AGREEMENT
Distribution Agreement (the "Agreement") made as of this 17th day of July,
2003 by and between OPTIMUM FUND TRUST, a Delaware statutory trust (the
"Trust"), for the series identified on Schedule I attached hereto, as from time
to time amended (the "Series"), and DELAWARE DISTRIBUTORS, L.P. (the
"Distributor"), a Delaware limited partnership.
WITNESSETH
WHEREAS, the Trust is an 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 Trust desires to enter into an agreement with the Distributor
as of the date hereof, pursuant to which the Distributor shall serve as the
national distributor of each class of each Series identified on Schedule I
hereto, as from time to time amended, which Trust, Series and classes may do
business under the names set forth on Schedule I hereto or such other names as
the Board of Trustees may designate from time to time, on the terms and
conditions set forth below.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. The Trust hereby engages the Distributor to promote the distribution
of the shares of each Series and, in connection therewith and as
agent for the Trust and not as principal, to advertise, promote,
offer and sell shares of each Series to the public.
2. (a) The Distributor agrees to serve as distributor of each Series'
shares and, as agent for the Trust and not as principal, to
advertise, promote and use its best efforts to sell each Series'
shares wherever their sale is legal, either through dealers or
otherwise, in such places and in such manner, not inconsistent
with the law and the provisions of this Agreement and the Trust's
Registration Statement under the Securities Act of 1933, including
the Prospectuses contained therein and the Statements of
Additional Information contained therein, as may be mutually
determined by the Trust and the Distributor from time to time.
(b) For the Institutional Class Shares of each Series, the Distributor
will bear all costs of financing any activity which is primarily
intended to result in the sale of that class of 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 that class of
shares.
(c) For its services as agent for the Class A Shares, Class B Shares
and Class C Shares of each Series, the Distributor shall be
entitled to compensation on each sale or redemption, as
appropriate, of shares of such classes equal to any front-end or
deferred sales charge described in the Prospectus for such Series,
as amended and supplemented from time to time and may allow
concessions to dealers in such amounts and on such terms as are
therein set forth.
(d) For the Class A Shares, Class B Shares and Class C Shares of each
Series, the Trust shall, in addition, compensate the Distributor
for its services as provided in the Distribution Plan as adopted
on behalf of the Class A Shares, Class B Shares and Class C
Shares, respectively, pursuant to Rule 12b-1 under the Investment
Company Act of 1940, as amended (the "Plans"), copies of which as
presently in force are attached hereto as Exhibits and at the
rates set forth on Schedule I hereto, as from time to time
amended, or at such lower rates as may be agreed from time to time
by the Distributor or set from time to time by the Board.
3. (a) The Trust agrees to make available for sale by the Trust through
the Distributor all or such part of the authorized but unissued
shares of beneficial interest of the Series as the Distributor
shall require from time to time and, except as provided in
Paragraph 3(b) hereof, the Trust will not sell Series' shares
other than through the efforts of the Distributor.
(b) The Trust 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 of shares of any corporation or trust; (3) to pay
stock dividends to its shareholders, or to pay dividends in cash
or shares of beneficial interest at the option of its
shareholders, or to sell shares of beneficial interest to existing
shareholders to the extent of dividends payable from time to time
in cash, or to split up or combine its outstanding shares; (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 in which the Distributor is not registered as a
broker-dealer.
4. The Distributor may, at its expense, select and contract with one or
more registered broker-dealers to perform some or all of the services
for a Series for which it is responsible under this agreement. The
Distributor will be responsible for paying the compensation, if any,
to any such broker-dealer for its services with respect to the
Series. The Distributor may terminate the services of any such
broker-dealer at any time in its sole discretion, and shall at such
time assume the responsibilities of such broker-dealer unless or
until a replacement is selected and approved by the Board of
Trustees. The Distributor will continue to have responsibility for
all distribution-related services furnished by any such
broker-dealer.
5. The Trust warrants the following:
(a) The Trust is, or will be, a properly registered investment
company, and any and all Series' 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 Trust is bound, nor do they violate any
law or regulation of any body having jurisdiction over the Trust
or its property.
6. (a) The Trust will supply to the Distributor a conformed copy of the
Registration Statement and all amendments thereto, including all
exhibits and each Prospectus and Statement of Additional
Information.
(b) The Trust will register or qualify the Series' shares for sale in
such states as is deemed desirable.
(c) The Trust, 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 Series' shares may be
qualified;
(2) from time to time, will furnish to the Distributor as soon as
reasonably practicable true copies of its periodic reports to
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
Prospectuses 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) before filing any further amendment to the Registration
Statement or to any Prospectus, will furnish to 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 any 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;
(6) will continue to make available to its shareholders (and
forward copies to the Distributor) of 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, as amended; and
(7) will, for the purpose of computing the offering price of each
class of each Series' shares, advise the Distributor within
two hours 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 each class of each Series' shares of
beneficial interest outstanding, determined in accordance with
any applicable provisions of law and the provisions of the
Agreement and Declaration of Trust, as amended, of the Trust
as of the close of business on such business day. In the event
that prices are to be calculated more than once daily, the
Trust will promptly advise the Distributor of the time of each
calculation and the price computed at each such time.
7. The Distributor agrees to submit to the Trust, prior to its use, the
form of all sales literature proposed to be generally disseminated by
or at the request of the Distributor, all advertisements proposed to
be used by the Distributor, all sales literature or advertisements
prepared by or at the request of the Distributor for such
dissemination or for use by others at the request of the Distributor
in connection with the sale of the Series' shares, and the form of
dealers' sales contract the Distributor intends to use in connection
with sales of the Series' 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 such form of dealers' sales
contract or to use or to permit others to use such sales literature
or advertisements without the written consent of the Trust if any
regulatory agency expresses objection thereto or if the Trust
delivers to the Distributor a written objection thereto.
8. The purchase price of each share sold hereunder shall be the offering
price per share mutually agreed upon by the parties hereto and, as
described in the Trust's Prospectuses, as amended from time to time,
determined in accordance with any applicable provision of law, the
provisions of its Agreement and Declaration of Trust and the Conduct
Rules of NASD Regulation, Inc.
9. The responsibility of the Distributor hereunder shall be limited to
the promotion of sales of Series' shares. The Distributor shall
undertake to promote such sales solely as agent of the Trust, and
shall not purchase or sell such shares as principal. Orders for
Series' shares and payment for such orders shall be directed to the
Trust's agent, Delaware Service Company, Inc., for acceptance on
behalf of the Trust. The Distributor is not empowered to approve
orders for sales of Series' shares or accept payment for such orders.
Sales of Series' shares shall be deemed to be made when and where
accepted by Delaware Service Company, Inc. on behalf of the Trust.
10. With respect to the apportionment of costs between the Trust and the
Distributor of activities with which both are concerned, the
following will apply:
(a) The Trust and the Distributor will cooperate in preparing the
Registration Statements, the Prospectuses, the Statements of
Additional Information, and all amendments, supplements and
replacements thereto. The Trust will pay all costs incurred in
the preparation of the Trust's Registration Statement, including
typesetting, the costs incurred in printing and mailing
Prospectuses and Annual, Semi-Annual and other financial reports
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 Trust will pay the costs and fees incurred in registering or
qualifying the Series' shares with the various states and with
the SEC.
(e) The Distributor will pay the costs of any additional copies of
Trust financial and other reports and other Trust literature
supplied to the Distributor by the Trust for sales promotion
purposes.
11. 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.
12. The Trust agrees to indemnify, defend and hold harmless from the
assets of the relevant Series 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 Trust shall not be liable for
indemnification of the Distributor or any controlling person thereof
for any liability to the Trust or its shareholders to which they
would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of their duties under
this Agreement.
13. 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, courier service using a tracking
mechanism, or by prepaid telegram filed with an office or with an
agent of Western Union or another nationally recognized telegraph
service, 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 Trust or the
Distributor may designate in writing and furnish to the other.
14. This Agreement shall not be assigned, as that term is defined in the
Investment Company Act of 1940, as amended, 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 Trust without the written consent of the Distributor signed by
its duly authorized officers and delivered to the Trust. Except as
specifically provided in the indemnification provision contained in
Paragraph 11 herein, 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.
15. (a) This Agreement shall be executed and become effective as of the
date first written above, and shall become effective with
respect to a particular Series as of the effective date set
forth in Schedule I for that Series. It shall remain in force
for a period of two years from the date hereof for each Series
or two yeas from the date of effectiveness for any new Series
added to Schedule I at a later date, and from year to year
thereafter, but only so long as such continuance is specifically
approved at least annually by the Board of Trustees or, with
respect to each Series, by vote of a majority of the outstanding
voting securities of that Series and only if the terms and the
renewal thereof have been approved by the vote of a majority of
the Trustees of the Trust 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 as to any Series on
written notice to the Trust 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 as to any Series at any time
by giving the Trust written notice of its intention to terminate
the Agreement at the expiration of three months from the date of
delivery of such written notice of intention to the Trust.
(c) The Trust may terminate this Agreement as to any Series 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 the shares are not qualified for
sale. The Trust may also terminate this Agreement as to any
Series 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.
16. The validity, interpretation and construction of this Agreement, and
of each part hereof, will be governed by the laws of the Commonwealth
of Pennsylvania.
17. 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
By: Will Bashan
------------------------------
Name: Will Bashan
Title: President/Chief Executive
Officer
OPTIMUM FUND TRUST ON BEHALF OF THE
SERIES LISTED ON SCHEDULE I
By: Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chairman/President/Chief
Executive Officer
SCHEDULE I
This Schedule to the Distribution Agreement between OPTIMUM FUND TRUST
and DELAWARE DISTRIBUTORS, L.P. entered into as of July 17, 2003 (the
"Agreement") lists the Series and Classes for which Delaware Distributors,
L.P. provides distribution services pursuant to this Agreement, along with
the 12b-1 Plan rates, if applicable, for each class and the date on which the
Agreement became effective for each Series.
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AMOUNT
DESIGNATED AS
TOTAL 12B-1 PLAN SERVICE FEE RATE
FEE RATE (PER (PER ANNUM OF
ANNUM OF THE THE SERIES'
SERIES' AVERAGE AVERAGE DAILY
DAILY NET ASSETS NET ASSETS
REPRESENTED BY REPRESENTED BY
SHARES OF THE SHARES OF THE EFFECTIVE
SERIES NAME CLASS NAMES CLASS) CLASS) DATE
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Optimum Large Cap Growth Fund A Class .35% .25% July 17, 2003
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B Class 1.00% .25% July 17, 2003
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C Class 1.00% .25% July 17, 2003
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Institutional Class July 17, 2003
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Optimum Large Cap Value Fund A Class .35% .25% July 17, 2003
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B Class 1.00% .25% July 17, 2003
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C Class 1.00% .25% July 17, 2003
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Institutional Class July 17, 2003
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Optimum Small Cap Growth Fund A Class .35% .25% July 17, 2003
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B Class 1.00% .25% July 17, 2003
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C Class 1.00% .25% July 17, 2003
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Institutional Class July 17, 2003
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Optimum Small Cap Value Fund A Class .35% .25% July 17, 2003
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B Class 1.00% .25% July 17, 2003
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C Class 1.00% .25% July 17, 2003
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Institutional Class July 17, 2003
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Optimum International Fund A Class .35% .25% July 17, 2003
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B Class 1.00% .25% July 17, 2003
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C Class 1.00% .25% July 17, 2003
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Institutional Class July 17, 2003
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Optimum Fixed Income Fund A Class .35% .25% July 17, 2003
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B Class 1.00% .25% July 17, 2003
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C Class 1.00% .25% July 17, 2003
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Institutional Class July 17, 2003
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