Exhibit 24(B)(6)(A)(II)
DELAWARE POOLED TRUST, INC.
THE ________________ PORTFOLIO
DISTRIBUTION AGREEMENT
Agreement made as of this _______ day of __________, 1995 by and between
DELAWARE POOLED TRUST, INC., a Maryland corporation (the "Fund") for THE
________________________ PORTFOLIO (the "Portfolio"), and DELAWARE DISTRIBUTORS,
L.P. (the "Distributor"), a Delaware limited partnership.
WITNESSETH
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WHEREAS, the Fund 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 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 certain
large institutional investors.
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 Contract 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
Contract, 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.
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(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 stockholders, or to sell stock to
existing stockholders 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
stockholders 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 Contract do not violate the terms of any
instrument by which the Fund is bound, nor do they violate any
law or regulation of any
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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 stockholders, 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
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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 stockholders;
(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
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shares authorized, any increases being subject to approval
of the Fund's shareholders;
(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 stockholders (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
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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 by 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
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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 and the
provisions of its Articles of Incorporation and in accordance with
Rule 26(e) of the Rules of Fair Practice 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:
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(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 Contract. The Distributor may serve as
distributor
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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
Contract.
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
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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 Xxx Xxxx
Xxxxxx Xxxxx, 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 Contract 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 Contract 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 Contract 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 Contract 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 Contract or any
provisions herein contained. The Distributor shall look only to the
assets of the Portfolio to meet the obligations of, or
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claims against, the Fund under this Contract and not to the holder of
any share of the Fund.
14. (a) This Contract 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 Contract 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 Contract at any time by giving the Fund written
notice of its intention to terminate the contract at the
expiration of three months from the date of delivery of such
written notice of intention to the Fund.
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(c) The Fund may terminate this Contract 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
stockholders 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 Contract 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 Contract, 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 Contract is determined to be void
or unenforceable, such determination shall not affect the remainder of
the Contract, 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 ____________________ PORTFOLIO
Attest
___________________________ By:___________________________
Name: Name:
Title: Title:
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