EX-99.B9B
Exhibit 24(b)(9)(b)
DELAWARE GROUP FOUNDATION FUNDS
FIRST AMENDED AND RESTATED SHAREHOLDERS SERVICES AGREEMENT
THIS AGREEMENT, made as of this _____day of _______, 1998
by and between DELAWARE GROUP FOUNDATION FUNDS (the "Fund"), a
Delaware business trust, for the Foundation Income Portfolio,
Foundation Balanced Portfolio, Foundation Growth Portfolio
series and The Asset Allocation Portfolio(collectively "the
Series"), and DELAWARE SERVICE COMPANY, INC. ("DSC"), a
Delaware Corporation, each having its principal office and
place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, the Investment Management Agreements between the
Fund and Delaware Management Company, Inc. provide that the
Fund shall conduct its own business and affairs and shall bear
the expenses and salaries necessary and incidental thereto
including, but not in limitation of the foregoing, the costs
incurred in: the maintenance of its corporate existence; the
maintenance of its own books, records and procedures; dealing
with its own shareholders; the payment of dividends; transfers
of stock, including issuance and redemption of shares; reports
and notices to stockholders; calling and holding of stockholder
meetings; miscellaneous office expenses; brokerage commissions;
legal and accounting fees; taxes; and federal and state
registration fees; and
WHEREAS, the Fund and DSC desire to have a written
agreement concerning the performance of the foregoing services
and providing compensation therefor.
WHEREAS, the Fund and DSC wish to amend the Agreement to
add The Asset Allocation Porfolio;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, and intending legally to be bound, it is
agreed:
I. APPOINTMENT AS AGENT
1.1 The Fund hereby appoints DSC Shareholder Services
Agent for the Series to provide as agent for the Fund services
as Transfer Agent, Dividend Disbursing Agent and Shareholder
Servicing Agent and DSC hereby accepts such appointment and
agrees to provide the Fund, as its agent, the services
described herein.
1.2 The Fund shall pay DSC and DSC shall accept, for the
services provided hereunder, the compensation provided for in
Section VIII hereof. The Fund also shall reimburse DSC for
expenses incurred or advanced by it for the Fund in connection
with its services hereunder.
II. DOCUMENTATION
2.1 The Fund represents that it has provided or made
available to DSC (or has given DSC an opportunity to examine)
copies of, and DSC represents that it has received from the Fund
(or is otherwise familiar with), the following documents:
(a) The Articles of Incorporation or other documents
evidencing the Fund's form of organization and any current
amendments or supplements thereto.
(b) The By-Laws of the Fund;
(c) Any resolution or other action of the Fund or the
Board of Trustees of the Fund establishing or affecting the
rights, privileges or other status of each class or series of
shares of the Fund, including those relating to the Series or
altering or abolishing each such class or series;
(d) A certified copy of a resolution of the Board of
Trustees of the Fund appointing DSC as Shareholder Services Agent
for the Series and authorizing the execution of this Agreement;
(e) The forms of share certificates of the Series in
the forms approved by the Board of Trustees of the Fund;
(f) A copy of the Fund's currently effective
Prospectuses and Statement of Additional Information under the
Securities Act of 1933, if effective;
(g) Copies of all account application forms and other
documents relating to stockholder accounts in the Series;
(h) Copies of documents relating to Plans of the Fund
for the purchase, sale or repurchase of its shares, including
periodic payment or withdrawal plans, reinvestment plans or
retirement plans;
(i) Any opinion of counsel to the Fund relating to the
authorization and validity of the shares of the Series issued or
proposed to be issued under the law of the State of the Fund's
organization, including the status thereof under any applicable
securities laws;
(j) A certified copy of any resolution of the Board of
Trustees of the Fund authorizing any person to give instructions
to DSC under this Agreement (with a specimen signature of such
person if not already provided), setting forth the scope of such
authority; and
(k) Any amendment, revocation or other documents
altering, adding, qualifying or repealing any document or
authority called for under this Section 2.1.
2.2 The Fund and DSC may consult as to forms or documents
that may be required in performing services hereunder.
2.3 The Fund shall provide or make available to DSC a
certified copy of any resolution of the stockholders or the Board
of Trustees of the Fund providing for a dividend, capital gains
distribution, distribution of capital, stock dividend, stock
split or other similar action affecting the authorization or
issuance of shares of the Fund or the payment of dividends.
2.4 In the case of any recapitalization or other capital
adjustment requiring a change in the form of stock certificates
or the books recording the same, the Fund shall deliver or make
available to DSC:
(a) A certified copy of any document authorizing or
effecting such change;
(b) Written instructions from an authorized officer
implementing such change; and
(c) An opinion of counsel to the Fund as to the
validity of such action, if requested by DSC.
2.5 The Fund warrants the following:
(a) The Fund is, or will be, a properly registered
investment company under the Investment Company Act of 1940 and
any and all Series' shares which it issues will be properly
registered and lawfully issued under applicable federal and state
laws.
(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 body having jurisdiction
over the Fund or its property.
2.6 DSC warrants the following:
(a) DSC is and will be properly registered as a
transfer agent under the Securities and Exchange Act of 1934 and
is duly authorized to serve, and may lawfully serve as such.
(b) The provisions of this contract do not violate the
terms of any instrument by which DSC is bound; nor do they
violate any law or regulation of any body having jurisdiction
over DSC or its property.
III. STOCK CERTIFICATES
3.1 The Fund shall furnish or authorize DSC to obtain, at
the Fund's expense, a sufficient supply of blank stock
certificates for the Series, and from time to time will replenish
such supply upon the request of DSC. The Fund agrees to
indemnify and exonerate, save and hold DSC harmless, from and
against any and all claims or demands that may be asserted
against DSC concerning the genuineness of any stock certificate
supplied to DSC pursuant to this Section.
3.2 DSC shall safeguard, and shall account to the Fund,
upon its demand for, all such stock certificates: (a) as issued,
showing to whom issued, or (b) as unissued, establishing the
safekeeping, cancellation or destruction thereof.
3.3 The Fund shall promptly inform DSC in writing of any
change in the officers authorized to sign stock certificates or
in the form thereof. If an officer whose manual or facsimile
signature is affixed to any blank share certificate shall die,
resign or be removed prior to the issuance of such certificate,
DSC may nevertheless issue such certificate notwithstanding such
death, resignation or removal, and the Fund shall with respect
thereto promptly provide to DSC any approval, adoption or
ratification as may be required by DSC.
IV. TRANSFER AGENT
4.1 As Transfer Agent for the Fund, DSC shall issue, redeem
and transfer shares of the Series, and, in connection therewith
but not in limitation thereof, it shall:
(a) Upon receipt of authority to issue shares,
determine the total shares to be issued and issue such shares by
crediting shares to accounts created and maintained in the
registration forms provided; as applicable, prepare, issue and
deliver stock certificates.
(b) Upon proper transfer authorization, transfer
shares by debiting transferor-stockholder accounts and crediting
such shares to accounts created and/or maintained for transferee-
stockholders; if applicable, issue and/or cancel stock
certificates.
(c) Upon proper redemption authorization, determine
the total shares redeemed and to be redeemed; determine the total
redemption payments made and to be made; redeem shares by
debiting stockholder accounts; as applicable receive and cancel
stock certificates for shares redeemed; and remit or cause to be
remitted the redemption proceeds to stockholders.
(d) Create and maintain accounts; reconcile and
control cash due and paid, shares issued and to be issued, cash
remitted and to be remitted and shares debited and credited to
accounts; provide such notices, instructions or authorizations as
the Fund may require.
4.2 DSC shall not be required to issue, transfer or redeem
Series' shares upon receipt of DSC from the Fund, or from any
federal or state regulatory agency or authority, written notice
that the issuance, transfer or redemption of Series' shares has
been suspended or discontinued.
V. DIVIDEND DISBURSING AGENT
5.1 As Dividend Disbursing Agent for the Series, DSC shall
disburse and cause to be disbursed to stockholders of each Series
dividends, capital gains distributions or any payments from other
sources as directed by the Fund. In connection therewith, but
not in the limitation thereof, DSC shall:
(a) Calculate the total disbursement due and payable
and the disbursement to each stockholder as to shares owned, in
accordance with the Fund's authorization.
(b) Calculate the total disbursements for each
stockholder, as aforesaid, to be disbursed in cash; prepare and
mail checks therefor.
(c) Calculate the total disbursement for each
stockholder of each Series, as aforesaid, for which Series'
shares are to be issued and authorized and instruct the issuance
of Series' shares therefor in accordance with Section IV hereof.
(d) Prepare and mail or deliver such forms and notices
pertaining to disbursements as required by federal or state
authority.
(e) Create and maintain records, reconcile and control
disbursements to be made and made, both as to cash and shares, as
aforesaid; provide such notices, instruction or authorization as
the Fund may require.
5.2 DSC shall not be required to make any disbursement upon
the receipt of DSC from the Fund, or from any federal or state
agency or authority, written notice that such disbursement shall
not be made.
VI. SHAREHOLDER SERVICING AGENT
6.1 As Shareholder Servicing Agent for the Series, DSC
shall provide those services ancillary to, but in implementation
of, the services provided under Sections I through V hereof, and
those generally defined and accepted as shareholder services. In
connection therewith, but not in limitation thereof, DSC shall:
(a) Except where instructed in writing by the Fund not
to do so, and where in compliance with applicable law, accept
orders on behalf of the Fund; receive and process investments and
applications; remit to the Fund or its custodian payments for
shares acquired and to be issued; and direct the issuance of
shares in accordance with Section IV hereof.
(b) Receive, record and respond to communications of
stockholders and their agents.
(c) As instructed by the Fund, prepare and mail
stockholder account information, mail Series stockholder reports
and Series prospectuses.
(d) Prepare and mail proxies and material for Fund
stockholder meetings,
receive and process proxies from stockholders, and deliver such
proxies as directed by the Fund.
(e) Administer investment plans offered by the Fund to
investors and stockholders of each Series, including retirement
plans, including activities not otherwise provided in Section I
through V of this Agreement.
VII. PERFORMANCE OF DUTIES
7.1 The parties hereto intend that Series stockholders and
their stockholdings shall be confidential, and any information
relating thereto shall be released by DSC only to those persons
or authorities who DSC has reason to believe are authorized to
receive such information; or, as instructed by the Fund.
7.2 DSC may, in performing this Agreement, require the Fund
or the Fund's distributor to provide it with an adequate number
of copies of prospectuses, reports or other documents required to
be furnished to investors or stockholders.
7.3 DSC may request or receive instructions from the Fund
and may, at the Fund's expense, consult with counsel for the Fund
or its own counsel with respect to any matter arising in
connection with the performance of its duties hereunder, and
shall not be liable for any action taken or omitted by it in good
faith in accordance with such instructions or opinions of
counsel.
7.4 DSC shall maintain reasonable insurance coverage for
errors and omissions and reasonable bond coverage for fraud.
7.5 Upon notice thereof to the Fund, DSC may employ others
to provide services to DSC in its performance of this Agreement.
7.6 Personnel and facilities of DSC used to perform
services hereunder may be used to perform similar services to
other funds of the Delaware Group and to others, and may be used
to perform other services for the Fund, the other funds of the
Delaware Group and others.
7.7 DSC shall provide its services as transfer agent
hereunder in accordance with Section 17 of the Securities
Exchange Act of 1934, and the rules and regulations thereunder.
Further, the parties intend that the processes, procedures,
safeguards and controls employed should be those generally
applied and accepted for the type services provided hereunder by
other institutions providing the same or similar services, and,
those which should provide efficient, safe and economical
services so as to promote promptness and accuracy and to maintain
the integrity of the Fund's records.
7.8 The Fund and DSC may, from time to time, set forth in
writing Guidelines For Selective Procedures to be applicable to
the services hereunder.
VIII. COMPENSATION
8.1 The Fund and DSC acknowledge that because DSC has common
ownership and close management ties with the Fund's investment
advisor and the Fund's distributor and serves the other funds of
the Delaware Group (DSC having been originally established to
provide the services hereunder for the funds of the Delaware
Group), advantages and benefits to the Fund in the employment of
DSC hereunder can be available which may not generally be
available to it from others providing similar services.
8.2 The Fund and DSC further acknowledge that the
compensation by the Fund to DSC is intended to induce DSC to
provide services under this Agreement of a nature and quality
which the Board of Trustees of the Fund, including a majority who
are not parties to this Agreement or interested person of the
parties hereto, has determined after due consideration to be
necessary for the conduct of the business of the Fund, in the
best interests of the Fund, the Series and their stockholders.
8.3 Compensation by the Fund to DSC hereunder shall be
determined in accordance with Schedule A hereto as it shall be
amended from time to time as provided for herein and which is
incorporated herein as a part hereof.
8.4 Compensation as provided in Schedule A shall be
reviewed and approved in the manner set forth in Section 10.1
hereof by the Board of Trustees of the Fund at least annually
and may be reviewed and approved more frequently at the request
of either party. The Board may request, and DSC shall provide,
such information as the Board may reasonably require to evaluate
the basis of and approve the compensation.
IX. STANDARD OF CARE
9.1 The Fund acknowledges that DSC shall not be liable for,
and in the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of the performance of its duties
under this Agreement, agrees to indemnify DSC against, any claim
or deficiency arising from the performance of DSC's duties
hereunder, including DSC's costs, counsel fees and expenses
incurred in investigation or defending any such claim or any
administrative or other proceeding, and acknowledges that any
risk of loss or damage arising from the conduct of the Fund's
affairs in accordance herewith or in accordance with Guidelines
or instructions given hereunder, shall be borne by the Fund.
X. CONTRACTUAL STATUS
10.1 This Agreement shall be executed and become effective
on the date first written above if approved by a vote of the
Board of Trustees of the Fund, including an affirmative vote of
a majority of the non-interested members of the Board, cast in
person at a meeting called for the purpose of voting on such
approval. It shall continue in effect for an indeterminate
period, and is subject to termination on sixty (60) days notice
by either party unless earlier terminated or amended by agreement
among the parties. Compensation under this Agreement shall
require approval by a majority vote of the Board of Trustees of
the Fund, including an affirmative vote of the majority of the
non-interested members of the Board cast in person at a meeting
called for the purpose of voting on such approval.
10.2 This Agreement may not be assigned without the approval
of the Fund.
10.3 This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
DELAWARE SERVICE COMPANY, INC.
By:
Name: Xxxxx X. Xxxxxx
Title: President, Chief Executive Officer and
Chief Financial Officer
Attest: ____________________________
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President, Assistant Secretary
and Senior Counsel
DELAWARE GROUP FOUNDATION FUNDS
for the Foundation Income Portfolio,
the Foundation Balanced Portfolio, the
Foundation Growth Portfolio and The
Asset Allocation Portfolio
By:
Name: Xxxxx X. Xxxxx
Title: Chairman
Attest: _____________________________
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President, Assistant Secretary
and Senior Counsel
SCHEDULE A
DELAWARE GROUP FOUNDATION FUNDS
(THE "FUND")
SHAREHOLDERS SERVICES AGREEMENT
COMPENSATION SCHEDULE
1. Delaware Service Company, Inc. ("DSC") will determine and
report to the Fund, at least annually, the compensation for
services to be provided to the Fund for DSC's forthcoming
fiscal year or period.
2. In determining such compensation, DSC will fix and report a
fee to be charged per account and/or transaction, as may be
applicable, for services provided. DSC will xxxx, and the
Fund will pay, such compensation monthly.
3. For the period commencing on January 1, 1997, the charge will
consist of two charges for all the Funds in the Delaware
Group, except the Delaware Group Premium Fund, Inc. and the
Delaware Pooled Trust, Inc. (other than with respect to The
Real Estate Investment Trust Portfolio effective October 14,
1997), an annual charge and a per transaction charge for each
account on the transfer agent's records and each account on
an automated retirement processing system. These charges are
as follows:
SCHEDULE A
DELAWARE GROUP FOUNDATION FUNDS
(THE "FUND")
SHAREHOLDERS SERVICES AGREEMENT
COMPENSATION SCHEDULE
CONTINUED
