FORM OF AGREEMENT
DELAWARE POOLED TRUST, INC.
THE GLOBAL EQUITY PORTFOLIO
DISTRIBUTION AGREEMENT
Agreement made as of this 14th day of October, 1997 by and between
DELAWARE POOLED TRUST, INC., a Maryland corporation (the "Fund") for THE GLOBAL
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
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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
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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;
(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
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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.
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
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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
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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.
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
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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.
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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.
(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
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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 GLOBAL EQUITY PORTFOLIO
Attest:
____________________________ By: ______________________
Name: _____________________ Name: ___________________
Title:______________________ Title: ___________________
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