EX-99.E1(VIII)
Exhibit 23(e)(1)(viii)
DELAWARE POOLED TRUST, INC.
THE DIVERSIFIED CORE FIXED INCOME PORTFOLIO
DISTRIBUTION AGREEMENT
Agreement made as of this 24th day of December, 1997 by and between
DELAWARE POOLED TRUST, INC., a Maryland corporation (the "Fund") for THE
DIVERSIFIED CORE FIXED INCOME PORTFOLIO (the "Portfolio"), and DELAWARE
DISTRIBUTORS, L.P. (the "Distributor"), a Delaware limited partnership.
WITNESSETH
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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
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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.
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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
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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 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;
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(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
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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
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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.
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(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
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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
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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.
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(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:
/s/Xxxxx X. X'Xxxxxx By:/s/Xxxxx X. Xxxxxx
-------------------------- ----------------------------------
Name: Xxxxx X. X'Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President Title: President and
Assistant Secretary Chief Executive Officer
DELAWARE POOLED TRUST, INC.
for THE DIVERSIFIED CORE FIXED INCOME
PORTFOLIO
Attest:
/s/Xxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
--------------------------- ----------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title: Executive Vice President
Assistant Secretary Chief Operating Officer
Chief Financial Officer
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