DELAWARE GROUP PREMIUM FUND, INC.
AGGRESSIVE GROWTH SERIES
DISTRIBUTION AGREEMENT
Distribution Agreement made as of this day of , 1999 by and between
DELAWARE GROUP PREMIUM FUND, INC., a Maryland corporation (the "Fund"), on
behalf of its AGGRESSIVE 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 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.
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.
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(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;
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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, 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
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(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 applicable
provisions of law, the provisions of its Articles of
Incorporation and the Conduct Rules of the National
Association of Securities Dealers, Inc.
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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, Inc. 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, Inc.
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.
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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.
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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.
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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, 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.
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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.,
Attest: General Partner
By:
Assistant Vice President/ Executive Vice President
Assistant Secretary/ Chief Operating Officer
Senior Counsel Chief Financial Officer
DELAWARE GROUP PREMIUM FUND, INC.
Attest: For the AGGRESSIVE GROWTH SERIES
Assistant Vice President/ Chairman
Assistant Secretary/
Senior Counsel
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