DELAWARE GROUP FOUNDATION FUNDS
SECOND AMENDED AND RESTATED SHAREHOLDERS SERVICES AGREEMENT
THIS AGREEMENT, made as of this 27th day of December, 1999 by and
between DELAWARE GROUP FOUNDATION FUNDS (the "Fund"), a Delaware business trust,
for the Delaware Income Portfolio, Delaware Balanced Portfolio, Delaware Growth
Portfolio, The Asset Allocation Portfolio and Delaware S&P 500 Index Fund
(collectively, the "Series"), and DELAWARE SERVICE COMPANY, INC. ("DSC"), a
Delaware corporation, each having its principal office and place of business at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, the Investment Management Agreement between the Fund and
Delaware Management Company, a series of Delaware Management Business Trust,
provides 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 shares
of beneficial interest, including issuance and redemption of shares; reports and
notices to shareholders; calling and holding of shareholder meetings;
miscellaneous office expenses; brokerage commissions; legal and accounting fees;
taxes; and federal and state registration fees;
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 amended the Agreement on August 31, 1998 to
add The Asset Allocation Portfolio ("First Amended and Restated Agreement"); and
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WHEREAS, the Fund and DSC wish to amend the First Amended and Restated
Agreement on December 27, 1999 to add the Delaware S&P 500 Index Fund ("Second
Amended and Restated Agreement").
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 Declaration of Trust 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;
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(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 shareholder 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 shareholders or the Board of Trustees of the Fund
providing for a dividend, capital gains distribution, distribution of capital,
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share dividend, share 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 share 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. SHARE CERTIFICATES
3.1 The Fund shall furnish or authorize DSC to obtain, at the Fund's
expense, a sufficient supply of blank share certificates for the Series, and
from time to time will replenish such supply upon the request of DSC. The Fund
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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 share 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 share 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 share 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 share certificates.
(b) Upon proper transfer authorization, transfer shares by
debiting transferor-shareholder accounts and crediting such shares to accounts
created and/or maintained for transferee-shareholders; if applicable, issue
and/or cancel share 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 shareholder accounts; as applicable
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receive and cancel share certificates for shares redeemed; and remit or cause to
be remitted the redemption proceeds to shareholders.
(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 shareholders 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 shareholder as to shares owned, in accordance with the
Fund's authorization.
(b) Calculate the total disbursements for each shareholder, as
aforesaid, to be disbursed in cash; prepare and mail checks therefor.
(c) Calculate the total disbursement for each shareholder 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.
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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 shareholders
and their agents.
(c) As instructed by the Fund, prepare and mail shareholder
account information, mail Series shareholder reports and Series prospectuses.
(d) Prepare and mail proxies and material for Fund shareholder
meetings, receive and process proxies from shareholders, and deliver such
proxies as directed by the Fund.
(e) Administer investment plans offered by the Fund to investors
and shareholders 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 shareholders and their
shareholdings shall be confidential, and any information relating thereto shall
be released by DSC only to those persons or authorities who DSC has reason to
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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 shareholders.
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 in the Delaware
Investments Family and to others, and may be used to perform other services for
the Fund, the other funds in the Delaware Investments Family 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.
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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 in the Delaware Investments Family of
Funds (DSC having been originally established to provide the services hereunder
for the funds in the Delaware Investments Family of Funds), 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 shareholders.
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
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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:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
DELAWARE GROUP FOUNDATION FUNDS
for the:
Delaware Income Portfolio
Delaware Balanced Portfolio
Delaware Growth Portfolio
The Asset Allocation Portfolio
Delaware S&P 500 Index Fund
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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SCHEDULE A
SHAREHOLDERS SERVICES AGREEMENT
COMPENSATION SCHEDULE
DELAWARE INVESTMENTS FAMILY OF FUNDS
EFFECTIVE AS OF JUNE 17, 1999
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 ▇▇▇▇, and the Fund will pay, such compensation monthly.
3. The charge consists of two charges for all the Funds in the Delaware
Investments family, except the Delaware Group Premium Fund and the Delaware
Pooled Trust (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:
A. ANNUAL CHARGE
Daily Dividend Funds $11.00 Per Annum
Other Funds $5.50 Per Annum
▇▇▇▇▇▇▇ ▇▇▇▇▇ - Omnibus Accounts
Regular Accounts $16.00 Per Annum
Accounts with a Contingent
Deferred Sales Charge $19.00 Per Annum
Networked Accounts $3.00 - $6.00 Per Annum
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SCHEDULE A
SHAREHOLDERS SERVICES AGREEMENT
COMPENSATION SCHEDULE
DELAWARE INVESTMENTS FAMILY OF FUNDS
CONTINUED
B. TRANSACTION CHARGE
Transaction Charge
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1. Dividend Payment $0.25
2. New Account $6.00
3. Purchase:
a. Wire $8.00
b. Automated $1.50
c. Other $2.60
4. Transfer $8.00
5. Certificate Issuance $4.00
6. Liquidations
a. Wires $12.25
b. Drafts $0.75
c. Money Market Regular $4.50
d. Other Regular $4.50
7. Exchanges
a. Dividend Exchanges $3.00
b. Other $10.00
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4. DSC's compensation for providing services to the Delaware Group Premium Fund
(the "Premium Fund") is $50,000 annually. DSC will ▇▇▇▇, and the Premium
Fund will pay, such compensation monthly, allocated among the current Series
of the Premium Fund based on the relative percentage of assets of each
Series at the time of billing and adjusted appropriately to reflect the
length of time a particular Series is in operation during any billing
period.
5. DSC's compensation for providing services to the Portfolios (other than The
Real Estate Investment Trust Portfolio effective October 14, 1997) of
Delaware Pooled Trust (the "Trust") is $25,000 annually. DSC will ▇▇▇▇, and
the Trust will pay, such compensation monthly allocated among the current
Portfolios (other than The Real Estate Investment Trust Portfolio) of the
Trust based on the relative percentage of assets of each Portfolio at the
time of billing and adjusted appropriately to reflect the length of time a
particular Portfolio is in operation during any billing period.
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