DELAWARE GROUP PREMIUM FUND, INC.
U.S. 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 U.S. 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
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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
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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 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.
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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
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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.
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
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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
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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 U.S. GROWTH SERIES
Assistant Vice President/ Chairman
Assistant Secretary/
Senior Counsel
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