EX-99.B6D
Exhibit 24 (b)(6)(d)
DELAWARE GROUP FOUNDATION FUNDS
THE ASSET ALLOCATION PORTFOLIO
DISTRIBUTION AGREEMENT
Agreement made as of this ____day of _______, 1998 by and
between DELAWARE GROUP FOUNDATION FUNDS, a Delaware busuiness
trust (the "Fund") for THE ASSET ALLOCATION 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;
(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.
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.
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.
(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.
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
By:________________________________
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
Attest:____________________________
Name: Xxxxx X. X'Xxxxxx
Title: Assistant Vice President
Assistant Secretary
DELAWARE GROUP FOUNDATION FUNDS
for THE ASSET ALLOCATION
PORTFOLIO
By:________________________________
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
Chief Operating Officer
Chief Financial Officer
Attest:___________________________
Name: Xxxx X. Xxxxxx
Title: Vice President
Assistant Secretary
