DELAWARE GROUP PREMIUM FUND, INC.
EMERGING GROWTH SERIES
DISTRIBUTION AGREEMENT
Distribution Agreement made as of this 3rd day of April, 1995 by and
between DELAWARE GROUP PREMIUM FUND, INC., a Maryland corporation (the "Fund"),
for the EMERGING GROWTH 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 and the Distributor (or its predecessor) were the
parties to a contract dated December 13, 1993 under which the Distributor acted
as the national distributor of the Series which contract was subsequently
readopted as of January 3, 1995 (the "Prior Distribution Agreement"), and
WHEREAS, Delaware Management Holdings, Inc. ("Holdings"), the indirect
parent company of the Distributor's corporate General Partner, completed a
merger transaction with a newly-formed subsidiary of Lincoln National
Corporation, pursuant to which Holdings became a wholly-owned subsidiary of
Lincoln National Corporation, and
WHEREAS, the merger transaction resulted in a change of control of the
Distributor and an automatic termination of the Prior Distribution Agreement,
and
WHEREAS, the Board of Directors of the Fund has determined to enter
into a new agreement with the Distributor as of the date hereof, pursuant to
which the Distributor shall continue to be the national distributor of the
Series' shares on the terms and conditions set forth below,
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.
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 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;
(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
authonzed, 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, 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 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 my applicable
provision of law, the provisions of its Articles of
Incorporation and the Rules of Fair Practice in the
National Association or Securities Delaware, 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 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 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 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
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.
(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, 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.
DELAWARE DISTRIBUTORS, L.P.
By: DELAWARE DISTRIBUTORS, INC.,
General Partner
Attest
/s/Xxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxxxx
------------------------------------ ------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Vice President Title: President/Chief
Assistant Secretary Executive Officer
DELAWARE GROUP PREMIUM FUND, INC.
FOR THE EMERGING GROWTH SERIES
Attest
/s/Xxxx X. Xxxx By:/s/Xxxxx X. Xxxxxx
------------------------------------ ------------------------------
Name: Xxxx X. Xxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title: Senior Vice President/
Assistant Secretary Chief Administrative
Officer/Chief Financial
Officer
