EX-99.(e)(1) Executed
DELAWARE GROUP FOUNDATION FUNDS
DISTRIBUTION AGREEMENT
Distribution Agreement (the "Agreement") made as of this 19th day of
April, 2001 by and between DELAWARE GROUP FOUNDATION FUNDS, a Delaware business
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 the Class A Shares, Class B Shares, Class C
Shares, and, where applicable, the Consultant Class
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, Class C
Shares, and, where applicable, the Consultant Class
Shares, respectively, pursuant to Rule 12b-1 under
the Investment Company Act of 1940 (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 set from time to time
by the Board in agreement with the Trust.
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.
2
(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.
3
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 for the Distributor, all advertisements
proposed to be used by the Distributor, 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 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.
4
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 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 Xxx Xxxxxxxx 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, 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 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.
5
(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.
DELAWARE DISTRIBUTORS, INC.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President/Chief Executive Officer
DELAWARE GROUP FOUNDATION FUNDS on behalf of
the Series listed on Schedule I
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President/Chief Executive Officer/Chief
Financial Officer
6
EXHIBIT A
CLASS A
DISTRIBUTION PLAN
The following Distribution Plan (the "Plan") has been adopted pursuant
to Rule l2b-l under the Investment Company Act of 1940, as amended (the "Act"),
by Delaware Group Foundation Funds (the "Trust"), separately for each Series of
the Trust identified on Schedule I as amended from time to time (the "Series")
on behalf of the A Class shares of each such Series identified on Schedule I as
amended from time to time (the "Class"), which Trust, Series and Classes may do
business under these or such other names as the Board of Trustees of the Trust
may designate from time to time. The Plan has been approved by a majority of the
Board of Trustees, including a majority of the Trustees who are not interested
persons of the Trust and who have no direct or indirect financial interest in
the operation of the Plan or in any agreements related thereto ("non-interested
Trustees"), cast in person at a meeting called for the purpose of voting on such
Plan. Such approval by the Trustees included a determination that in the
exercise of reasonable business judgment and in light of their fiduciary duties,
there is a reasonable likelihood that the Plan will benefit each such Series and
shareholders of each such Class.
The Trust is a business trust organized under the laws of the State of
Delaware, is authorized to issue different series and classes of securities and
is an open-end management investment company registered under the Act. Delaware
Distributors, L.P. (the "Distributor") is the principal underwriter and national
distributor for the Series' shares, including shares of the Class, pursuant to
the Distribution Agreement between the Distributor and the Trust on behalf of
each Series ("Distribution Agreement").
The Plan provides that:
l. The Trust shall pay to the Distributor, out of the assets of a
particular Class, a monthly fee not to exceed the fee rate set forth on Schedule
I for such Class as may be determined by the Trust's Board of Trustees from time
to time. Such monthly fee shall be reduced by the aggregate sums paid by the
Trust on behalf of the Series to persons other than broker-dealers (the "Service
Providers") who may, pursuant to servicing agreements, provide to the Series
services in the Series' marketing of shares of the Class.
2. (a) The Distributor shall use the monies paid to it pursuant to
paragraph l above to furnish, or cause or encourage others to furnish, services
and incentives in connection with the promotion, offering and sale of the
relevant Class shares and, where suitable and appropriate, the retention of such
Class shares by shareholders.
(b) The Service Providers shall use the monies paid respectively to
them to reimburse themselves for the actual costs they have incurred in
confirming that their customers have received the Prospectus and Statement of
Additional Information, if applicable, and as a fee for (l) assisting such
customers in maintaining proper records with the Trust, (2) answering questions
relating to their respective accounts, and (3) aiding in maintaining the
investment of their respective customers in the Class.
3. The Distributor shall report to the Trust at least monthly on the
amount and the use of the monies paid to it under the Plan. The Service
Providers shall inform the Trust monthly and in writing of the amounts each
claims under the Plan; both the Distributor and the Service Providers shall
furnish the Board of Trustees of the Trust with such other information as the
Board may reasonably request in connection with the payments made under the Plan
and the use thereof by the Distributor and the Service Providers, respectively,
in order to enable the Board to make an informed determination of the amount of
the Trust" payments with respect to each Class and whether the Plan should be
continued with respect to each Class.
A-1
4. The officers of the Trust shall furnish to the Board of Trustees of
the Trust, for their review, on a quarterly basis, a written report of the
amounts expended under the Plan with respect to each Class and the purposes for
which such expenditures were made.
5. This Plan shall take effect with respect to the A Class of a
particular Series as of the effective date set forth on Schedule I (the
"Commencement Date"); thereafter, the Plan shall continue in effect with respect
to the A Class of a particular Series for a period of more than one year from
the Commencement Date only so long as such continuance is specifically approved
at least annually by a vote of the Board of Trustees of the Trust, and of the
non-interested Trustees, cast in person at a meeting called for the purpose of
voting on such Plan.
6. (a) The Plan may be terminated as to the A Class of any particular
Series at any time by vote of a majority of the non-interested Trustees or by
vote of a majority of the outstanding voting securities of such Class.
(b) The Plan may not be amended as to the A Class of any particular
Series to increase materially the amount to be spent for distribution pursuant
to paragraph l hereof without approval by the shareholders of such Class.
7. All material amendments to this Plan shall be approved by the
non-interested Trustees in the manner described in paragraph 5 above.
8. So long as the Plan is in effect, the selection and nomination of
the Trust's non-interested Trustees shall be committed to the discretion of such
non-interested Trustees.
9. The definitions contained in Sections 2(a)(19) and 2(a)(42) of the
Act shall govern the meaning of "interested person(s)" and "vote of a majority
of the outstanding voting securities," respectively, for the purposes of this
Plan.
This Plan shall take effect on the Commencement Date, as previously
defined.
April 19, 2001
A-2
EXHIBIT B
CLASS B
DISTRIBUTION PLAN
The following Distribution Plan (the "Plan") has been adopted pursuant
to Rule l2b-l under the Investment Company Act of 1940, as amended (the "Act"),
by Delaware Group Foundation Funds (the "Trust"), separately for each Series of
the Trust identified on Schedule I as amended from time to time (the "Series")
on behalf of the B Class shares of each such Series identified on Schedule I as
amended from time to time (the "Class"), which Trust, Series and Classes may do
business under these or such other names as the Board of Trustees of the Trust
may designate from time to time. The Plan has been approved by a majority of the
Board of Trustees, including a majority of the Trustees who are not interested
persons of the Trust and who have no direct or indirect financial interest in
the operation of the Plan or in any agreements related thereto ("non-interested
Trustees"), cast in person at a meeting called for the purpose of voting on such
Plan. Such approval by the Trustees included a determination that in the
exercise of reasonable business judgment and in light of their fiduciary duties,
there is a reasonable likelihood that the Plan will benefit each such Series and
shareholders of each such Class.
The Trust is a business trust organized under the laws of the State of
Delaware, is authorized to issue different series and classes of securities and
is an open-end management investment company registered under the Act. Delaware
Distributors, L.P. (the "Distributor") is the principal underwriter and national
distributor for the Series' shares, including shares of the Class, pursuant to
the Distribution Agreement between the Distributor and the Trust on behalf of
each Series ("Distribution Agreement").
The Plan provides that:
l. (a) The Trust shall pay to the Distributor, out of the assets of a
particular Class, a monthly fee not to exceed the fee rate set forth on Schedule
I for such Class as may be determined by the Trust's Board of Trustees from time
to time.
(b) In addition to the amounts described in (a) above, the Trust
shall pay (i) to the Distributor for payment to dealers or others, or (ii)
directly to others, an amount not to exceed the service fee rate set forth on
Schedule I for such Class, as a service fee pursuant to dealer or servicing
agreements.
2. (a) The Distributor shall use the monies paid to it pursuant to
paragraph l (a) above to assist in the distribution and promotion of shares of
the relevant Class. Payments made to the Distributor under the Plan may be used
for, among other things, preparation and distribution of advertisements, sales
literature and prospectuses and reports used for sales purposes, as well as
compensation related to sales and marketing personnel, and holding special
promotions. In addition, such fees may be used to pay for advancing the
commission costs to dealers with respect to the sale of the relevant Class
shares.
(b) The monies to be paid pursuant to paragraph 1(b) above shall be
used to pay dealers or others for, among other things, furnishing personal
services and maintaining shareholder accounts, which services include confirming
that customers have received the Prospectus and Statement of Additional
Information, if applicable; assisting such customers in maintaining proper
records with the Trust; answering questions relating to their respective
accounts; and aiding in maintaining the investment of their respective customers
in the relevant Class.
B-1
3. The Distributor shall report to the Trust at least monthly on the
amount and the use of the monies paid to it under paragraph 1(a) above. In
addition, the Distributor and others shall inform the Trust monthly and in
writing of the amounts paid under paragraph 1(b) above; both the Distributor and
any others receiving fees under the Plan shall furnish the Board of Trustees of
the Trust with such other information as the Board may reasonably request in
connection with the payments made under the Plan with respect to each Class and
the use thereof by the Distributor and others in order to enable the Board to
make an informed determination of the amount of the Trust's payments and whether
the Plan should be continued with respect to each Class.
4. The officers of the Trust shall furnish to the Board of Trustees of
the Trust, for their review, on a quarterly basis, a written report of the
amounts expended under the Plan with respect to each Class and the purposes for
which such expenditures were made.
5. This Plan shall take effect with respect to the B Class of a
particular Series as of the effective date set forth on Schedule I (the
"Commencement Date"); thereafter, the Plan shall continue in effect with respect
to the B Class of a particular Series for a period of more than one year from
the Commencement Date only so long as such continuance is specifically approved
at least annually by a vote of the Board of Trustees of the Trust, and of the
non-interested Trustees, cast in person at a meeting called for the purpose of
voting on such Plan.
6. (a) The Plan may be terminated as to the B Class of any particular
Series at any time by vote of a majority of the non-interested Trustees or by
vote of a majority of the outstanding voting securities of such Class.
(b) The Plan may not be amended as to the B Class of any particular
Series to increase materially the amount to be spent for distribution pursuant
to paragraph l hereof without approval by the shareholders of such Class.
7. All material amendments to this Plan shall be approved by the
non-interested Trustees in the manner described in paragraph 5 above.
8. So long as the Plan is in effect, the selection and nomination of
the Trust's non-interested Trustees shall be committed to the discretion of such
non-interested Trustees.
9. The definitions contained in Sections 2(a)(19) and 2(a)(42) of the
Act shall govern the meaning of "interested person(s)" and "vote of a majority
of the outstanding voting securities," respectively, for the purposes of this
Plan.
This Plan shall take effect on the Commencement Date, as previously
defined.
April 19, 2001
B-2
EXHIBIT C
CLASS C
DISTRIBUTION PLAN
The following Distribution Plan (the "Plan") has been adopted pursuant
to Rule l2b-l under the Investment Company Act of 1940, as amended (the "Act"),
by Delaware Group Foundation Funds (the "Trust"), separately for each Series of
the Trust identified on Schedule I as amended from time to time (the "Series")
on behalf of the C Class shares of each such Series identified on Schedule I as
amended from time to time (the "Class"), which Trust, Series and Classes may do
business under these or such other names as the Board of Trustees of the Trust
may designate from time to time. The Plan has been approved by a majority of the
Board of Trustees, including a majority of the Trustees who are not interested
persons of the Trust and who have no direct or indirect financial interest in
the operation of the Plan or in any agreements related thereto ("non-interested
Trustees"), cast in person at a meeting called for the purpose of voting on such
Plan. Such approval by the Trustees included a determination that in the
exercise of reasonable business judgment and in light of their fiduciary duties,
there is a reasonable likelihood that the Plan will benefit each such Series and
shareholders of each such Class.
The Trust is a business trust organized under the laws of the State of
Delaware, is authorized to issue different series and classes of securities and
is an open-end management investment company registered under the Act. Delaware
Distributors, L.P. (the "Distributor") is the principal underwriter and national
distributor for the Series' shares, including shares of the Class, pursuant to
the Distribution Agreement between the Distributor and the Trust on behalf of
each Series ("Distribution Agreement").
The Plan provides that:
l. (a) The Trust shall pay to the Distributor, out of the assets of a
particular Class, a monthly fee not to exceed the fee rate set forth on Schedule
I for such Class as may be determined by the Trust's Board of Trustees from time
to time.
(b) In addition to the amounts described in (a) above, the Trust
shall pay (i) to the Distributor for payment to dealers or others, or (ii)
directly to others, an amount not to exceed the service fee rate set forth on
Schedule I for such Class, as a service fee pursuant to dealer or servicing
agreements.
2. (a) The Distributor shall use the monies paid to it pursuant to
paragraph l (a) above to assist in the distribution and promotion of shares of
the relevant Class. Payments made to the Distributor under the Plan may be used
for, among other things, preparation and distribution of advertisements, sales
literature and prospectuses and reports used for sales purposes, as well as
compensation related to sales and marketing personnel, and holding special
promotions. In addition, such fees may be used to pay for advancing the
commission costs to dealers with respect to the sale of the relevant Class
shares.
(b) The monies to be paid pursuant to paragraph 1(b) above shall be
used to pay dealers or others for, among other things, furnishing personal
services and maintaining shareholder accounts, which services include confirming
that customers have received the Prospectus and Statement of Additional
Information, if applicable; assisting such customers in maintaining proper
records with the Trust; answering questions relating to their respective
accounts; and aiding in maintaining the investment of their respective customers
in the relevant Class.
C-1
3. The Distributor shall report to the Trust at least monthly on the
amount and the use of the monies paid to it under paragraph 1(a) above. In
addition, the Distributor and others shall inform the Trust monthly and in
writing of the amounts paid under paragraph 1(b) above; both the Distributor and
any others receiving fees under the Plan shall furnish the Board of Trustees of
the Trust with such other information as the Board may reasonably request in
connection with the payments made under the Plan with respect to each Class and
the use thereof by the Distributor and others in order to enable the Board to
make an informed determination of the amount of the Trust's payments and whether
the Plan should be continued with respect to each Class.
4. The officers of the Trust shall furnish to the Board of Trustees of
the Trust, for their review, on a quarterly basis, a written report of the
amounts expended under the Plan with respect to each Class and the purposes for
which such expenditures were made.
5. This Plan shall take effect with respect to the C Class of a
particular Series as of the effective date set forth on Schedule I (the
"Commencement Date"); thereafter, the Plan shall continue in effect with respect
to the C Class of a particular Series for a period of more than one year from
the Commencement Date only so long as such continuance is specifically approved
at least annually by a vote of the Board of Trustees of the Trust, and of the
non-interested Trustees, cast in person at a meeting called for the purpose of
voting on such Plan.
6. (a) The Plan may be terminated as to the C Class of any particular
Series at any time by vote of a majority of the non-interested Trustees or by
vote of a majority of the outstanding voting securities of such Class.
(b) The Plan may not be amended as to the C Class of any particular
Series to increase materially the amount to be spent for distribution pursuant
to paragraph l hereof without approval by the shareholders of such Class.
7. All material amendments to this Plan shall be approved by the
non-interested Trustees in the manner described in paragraph 5 above.
8. So long as the Plan is in effect, the selection and nomination of
the Trust's non-interested Trustees shall be committed to the discretion of such
non-interested Trustees.
9. The definitions contained in Sections 2(a)(19) and 2(a)(42) of the
Act shall govern the meaning of "interested person(s)" and "vote of a majority
of the outstanding voting securities," respectively, for the purposes of this
Plan.
This Plan shall take effect on the Commencement Date, as previously
defined.
April 19, 2001
C-2
EXHIBIT D
CONSULTANT CLASS
DISTRIBUTION PLAN
The following Distribution Plan (the "Plan") has been adopted pursuant
to Rule l2b-l under the Investment Company Act of l940, as amended (the "Act"),
by [Trust Name] (the "Trust"), separately for each Series of the Trust
identified on Schedule I (the "Series") on behalf of the Consultant Class shares
of each such Series identified on Schedule I (the "Class"), which Trust, Series
and Classes may do business under these or such other names as the Board of
Trustees may designate from time to time. The Plan has been approved by a
majority of the Board of Trustees, including a majority of the Trustees who are
not interested persons of the Trust and who have no direct or indirect financial
interest in the operation of the Plan or in any agreements related thereto
("non-interested Trustees"), cast in person at a meeting called for the purpose
of voting on such Plan. Such approval by the Trustees included a determination
that in the exercise of reasonable business judgment and in light of their
fiduciary duties, there is a reasonable likelihood that the Plan will benefit
each such Series and shareholders of each such Class.
The Trust is a business trust organized under the laws of the State of
[Delaware/Massachusetts], is authorized to issue different series and classes of
securities and is an open-end management investment company registered under the
Act. Delaware Distributors, L.P. (the "Distributor") is the principal
underwriter and national distributor for the Series' shares including shares of
the Class pursuant to the Distribution Agreement between the Distributor and the
Trust for each Series ("Distribution Agreement").
The Plan provides that:
1. The Trust shall pay to the Distributor, out of the assets of a
particular class, a monthly fee not to exceed the fee rate set forth on Schedule
I for such Class as may be determined by the Trust's Board of Trustees from time
to time. Such monthly fee shall be reduced by the aggregate sums paid by the
Trust on behalf of the Series to persons other than broker-dealers (the "Service
Providers") who may, pursuant to servicing agreements, provide to the Series
services in the Series' marketing of shares of the Class.
2. (a) The Distributor shall use the monies paid to it pursuant to
paragraph l above to furnish, or cause or encourage others to furnish, services
and incentives in connection with the promotion, offering and sale of the
relevant Class shares and, where suitable and appropriate, the retention of such
Class shares by shareholders.
(b) The Service Providers shall use the monies paid respectively to
them to reimburse themselves for the actual costs they have incurred in
confirming that their customers have received the Prospectus and Statement of
Additional Information, if applicable, and as a fee for (l) assisting such
customers in maintaining proper records with the Trust, (2) answering questions
relating to their respective accounts, and (3) aiding in maintaining the
investment of their respective customers in the Class.
3. The Distributor shall report to the Trust at least monthly on the
amount and the use of the monies paid to it under the Plan. The Service
Providers shall inform the Trust monthly and in writing of the amounts each
claims under the Plan; both the Distributor and the Service Providers shall
furnish the Board of Trustees of the Trust with such other information as the
Board may reasonably request in connection with the payments made under the Plan
and the use thereof by the Distributor and the Service Providers, respectively,
in order to enable the Board to make an informed determination of the amount of
the Trust's payments with respect to each Plan and whether the Plan should be
continued with respect to each Plan.
D-1
4. The officers of the Trust shall furnish to the Board of Trustees of
the Trust, for their review, on a quarterly basis, a written report of the
amounts expended under the Plan with respect to each Plan and the purposes for
which such expenditures were made.
5. This Plan shall take effect with respect to the Consultant Class of
a particular Series as of the effective date set forth on Schedule I (the
"Commencement Date"); thereafter, the Plan shall continue in effect with respect
to the Consultant Class of a particular Series for a period of more than one
year from the Commencement Date only so long as such continuance is specifically
approved at least annually by a vote of the Board of Trustees of the Trust, and
of the non-interested Trustees, cast in person at a meeting called for the
purpose of voting on such Plan.
6. (a) The Plan may be terminated as to the Consultant Class of any
particular Series at any time by vote of a majority of the non-interested
Trustees or by vote of a majority of the outstanding voting securities of such
Class.
(b) The Plan may not be amended as to the Consultant Class of any
particular Series to increase materially the amount to be spent for distribution
pursuant to paragraph l thereof without approval by the shareholders of such
Class.
7. All material amendments to this Plan shall be approved by the
non-interested Trustees in the manner described in paragraph 5 above.
8. So long as the Plan is in effect, the selection and nomination of
the Trust's non-interested Trustees shall be committed to the discretion of such
non-interested Trustees.
9. The definitions contained in Sections 2(a)(19) and 2(a)(42) of the
Act shall govern the meaning of "interested person(s)" and "vote of a majority
of the outstanding voting securities," respectively, for the purposes of this
Plan.
This Plan shall take effect on the Commencement Date, as previously
defined.
April 19, 2001
D-2
SCHEDULE I
This Schedule to the Distribution Agreement between Delaware Group
Foundation Funds and Delaware Distributors, L.P. entered into as of April 19,
2001 (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.
----------------------------------------------------------------------------------------------------------------------------
Portion designated as
Total 12b-1 Plan Free Rate Service Free Rate (per
(Per annum of the Series' annum of the Series'
average daily net assets average daily net assets
represented by shares of represented by shares
Series Name Class Names the Class) of the Class) Effective Date
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
Delaware Income Portfolio A Class .30% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
B Class 1.00% .25% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
C Class 1.00% .25% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
Institutional Class April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
Delaware Growth Portfolio A Class .30% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
B Class 1.00% .25% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
C Class 1.00% .25% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
Institutional Class April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
Delaware Balanced Portfolio A Class .30% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
B Class 1.00% .25% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
C Class 1.00% .25% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
Institutional Class April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
The Asset Allocation Portfolio April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
Delaware S&P 500 Index Fund A Class .30% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
B Class 1.00% .25% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
C Class 1.00% .25% April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
Institutional Class April 19, 2001
--------------------------------- --------------------- -------------------------- ------------------------- ---------------
Consultant Class .30% April 19, 2001
----------------------------------------------------------------------------------------------------------------------------
I-1
