DELAWARE GROUP PREMIUM FUND, INC.
CONVERTIBLE SECURITIES SERIES
DEVON SERIES
EMERGING MARKETS SERIES
QUANTUM SERIES
STRATEGIC INCOME SERIES
DISTRIBUTION AGREEMENT
Distribution Agreement made as of this 1st day of May, 1997 by and
between DELAWARE GROUP PREMIUM FUND, INC., a Maryland corporation (the "Fund"),
on behalf of its CONVERTIBLE SECURITIES SERIES, DEVON SERIES, EMERGING MARKETS
SERIES, QUANTUM SERIES, and STRATEGIC INCOME SERIES (the "Series") and DELAWARE
DISTRIBUTORS, L.P. (the "Distributor"), a Delaware limited partnership.
W I T N E S S E T H:
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 appoint the Distributor as distributor for
the shares of the Series and the Distributor wishes to accept such appointment
on the terms and conditions set forth below.
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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 the Series' shares and, in connection
therewith and as agent for the Fund and not as principal, to
advertise, promote, offer and sell the Series' shares to the
public.
2. The Distributor agrees to serve as distributor of the
Series' shares and, as agent for the Fund and not as
principal, to advertise, promote and use its best efforts
to sell the 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 Fund's Registration
Statement under the Securities Act of 1933 including the
Prospectus contained therein and the Statement of
Additional Information contained therein, as may be
mutually determined by the Fund and the Distributor from
time to time. The Distributor will bear all costs of
financing any activity which is primarily intended to
result in the sale of the Series' 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 the
Series' shares.
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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 Series' 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, the Fund
will not sell Series shares other than through the
efforts of the Distributor.
(b) The Fund reserves the right from time to time (l)
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 shareholder, 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
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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 shares which it
will sell through the Distributor are, or will be,
properly registered with the Securities and Exchange
Commission.
(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.
5. (a) The Fund will supply to the Distributor a
conformed copy of the Registration Statement, all
amendments thereto, all exhibits, and each Prospectus
and Statement of Additional Information.
(b) The Fund will register or qualify the Series' shares
for sale 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;
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(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 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 effort
to keep a sufficient supply of shares
authorized, any increases being subject to
approval of the Fund's 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,
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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) 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; and
(8) will, for the purpose of computing the
offering price of its Series' shares, advise
the Distributor within one hour after the
close of regular trading on 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 the Series'
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 Company 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
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with the sale 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 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 offering price per share mutually agreed upon by the
parties hereto, and as described in the Fund's
prospectus, as amended from time to time, determined in
accordance with applicable provisions of law, the
provisions of its Articles of Incorporation and 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 Series' 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 Series' shares and payment for such
orders shall be directed to the Fund's agent, Delaware Service
Company, for acceptance on behalf
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of the Fund. 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.
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.
(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 the Series' shares with the various
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states and with the Securities and Exchange
Commission.
(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.
11. The Fund agrees to indemnify, defend and hold harmless
from the assets of the 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 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
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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 contract and all
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conditions and provisions hereof are for the sole and
exclusive benefit of the parties hereto and their legal
successors and no express or implied provisions of this
Agreement are 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. The Distributor shall look only to the assets of
the Fund 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 contract shall remain in force for a period of
two years from the date of execution 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 Series 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.
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(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 U. S. Securities and Exchange
Commission 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.
(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,
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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 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.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed by their duly authorized officers as of the 1st day of May, 1997.
DELAWARE DISTRIBUTORS, L.P.
By: DELAWARE DISTRIBUTORS, INC.,
Attest: General Partner
/s/Xxxxxxx X. Xxxxx /s/Xxxxx X. Xxxxxx
___________________________ By: ______________________________
Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxx
Assistant Vice President/ Executive Vice President/
Assistant Secretary Chief Operating Officer/
Chief Financial Officer
DELAWARE GROUP PREMIUM FUND, INC.
Attest: for the CONVERTIBLE SECURITIES
SERIES, DEVON SERIES, EMERGING
MARKETS SERIES, QUANTUM SERIES, and
STRATEGIC INCOME SERIES
/s/Xxxxx X. X'Xxxxxx /s/Xxxxx X. Xxxxx
___________________________ By: ______________________________
Xxxxx X. X'Xxxxxx Xxxxx X. Xxxxx
Assistant Vice President/ Chairman of the Board
Assistant Secretary
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