Exhibit No. EX-99.e.1.iii
DISTRIBUTION AGREEMENT
Distribution Agreement (the "Agreement") made as of this 9th day of
January, 2007 by and between DELAWARE POOLED TRUST, 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 Original Class Shares or 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
those shares or classes 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 those shares or classes of shares.
(c) For its services as agent for the Class A Shares, Class B Shares,
Class C Shares, Class R Shares and Class P Shares of each Series,
the Distributor shall be entitled to compensation on each sale or
redemption, as appropriate, of shares of such classes equal to
any front-end or deferred sales charge described in the
Prospectus for such Series, as amended and supplemented from time
to time, and may allow concessions to dealers in such amounts and
on such terms as are therein set forth.
(d) For the Class A Shares, Class B Shares, Class C Shares, Class R
Shares and Class P 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, Class R Shares and Class
P 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 an Exhibit 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.
(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.
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.
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 12 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.
(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.
By: DELAWARE DISTRIBUTORS, INC., General
Partner
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: President/Chief Executive Officer
DELAWARE POOLED TRUST on behalf of the
Series listed on Schedule I
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
CLASS P
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 Pooled Trust (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 Class P 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. Payments made to the Distributor 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. The Distributor may also use such monies for payments to dealers and
others for, among other things, furnishing personal services and maintaining
shareholder accounts, which services may include, among others, confirming that
customers or participants received a Prospectus or Statement of Additional
Information, if applicable, assisting such customers or participants in
maintaining proper records with the trust; answering questions relating to their
respective accounts; and aiding in maintaining the investment of such customers
or participants in the relevant Class, if applicable.
(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 Class 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 Class P shares 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 Class P shares 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 Class P shares 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 Class P shares 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.
January 9, 2007
SCHEDULE I
This Schedule to the Distribution Agreement between Delaware Pooled Trust
and Delaware Distributors, L.P. (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
Total designated
12b-1 Plan as Service
Fee Rate Fee Rate
(per annum (per annum
of the of the
Series' Series'
average average
daily net daily
assets net assets
represented represented
by shares of by shares of Original
Series Name Class Names the Class) the Class) Effective Date
------------------------- --------------------- -------------- -------------- ----------------
The Global Real Estate The Global Real January 9, 2007
Portfolio Estate Securities
Portfolio Original
Class
------------------------- --------------------- -------------- -------------- ----------------
The Global Real 0.25% January 9, 2007
Estate Securities
Portfolio Class P
------------------------- --------------------- -------------- -------------- ----------------
I-1
