DELAWARE POOLED TRUST, INC.
THE 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
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;
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(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
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(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.
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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.
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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 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 PORTFOLIO
Attest:
___________________________ By:________________________________
Name: Name:
Title: Title:
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