DELAWARE GROUP PREMIUM FUND, INC.
AGGRESSIVE GROWTH SERIES
DISTRIBUTION AGREEMENT
Distribution Agreement made as of this 1st day of May, 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.
(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
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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
(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
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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.
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.
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(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
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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.
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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
/s/Xxxxx X. X'Xxxxxx By: /s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. X'Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President/Assistant Secretary/ Title: President and Chief Executive Officer
Deputy General Counsel
DELAWARE GROUP PREMIUM FUND, INC.
Attest: for the AGGRESSIVE GROWTH SERIES
/s/Xxxxxxx X. Xxxxxxxxxx By:/s/Xxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx Name: Xxxxx X. Xxxxx
Title: Title:
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