DELAWARE GROUP PREMIUM FUND
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
This Amended and Restated Distribution Agreement (the
"Agreement") made as of this ___ day of ____________, 2000 by and between
DELAWARE GROUP PREMIUM FUND, a Delaware business trust (the "Fund"), on behalf
of the separately managed series of its shares, and classes of such series, set
forth in Appendix A hereto, as that Appendix A may be amended from time to time,
and DELAWARE DISTRIBUTORS, L.P. (the "Distributor"), a Delaware limited
partnership. Each series and class covered by this Agreement is referred to
herein individually as a "Series" or "Class," as appropriate.
WITNESSETH
WHEREAS, the Fund is an investment company regulated by
Federal and State regulatory bodies, which presently sells its shares solely to
separate accounts of life insurance companies for the purpose of funding
variable insurance products, 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 are presently parties to
a Distribution Agreement covering the Fund's various Series, and now wish to
amend and restate such agreement to reflect the Fund's adoption of a multiple
class distribution structure, and
WHEREAS, the Fund desires to enter into an amended and
restated Distribution Agreement with the Distributor on behalf of the Series,
pursuant to which the Distributor shall serve as the national distributor of
each Series' Class 1 and Class 2 shares, which classes may do business under
these or such other names as the Board of Trustees may designate from time to
time, 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. (a) 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 Prospectuses 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.
(b) For the Class 1 shares, the Distributor will bear all costs of
financing any activity which is primarily intended to result
in the sale of that class of 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 that class of
shares.
(c) For the Class 2 shares, the Fund shall, in addition,
compensate the Distributor, certain insurance companies or
others for services as provided in the Distribution Plan as
adopted on behalf of the Class 2 shares, pursuant to Rule
12b-1 under the Investment Company Act of 1940 (the "Plan"), a
copy of which as presently in force is attached hereto as
Exhibit "A."
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 shares of the Series as the Distributor shall require
from time to time, and except 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 (1) 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 of shares of any
corporation or trust; (3) to pay dividends to its shareholders
in the form of additional shares, or to pay dividends in cash
or in shares at the option of its shareholders, or to sell
shares to existing shareholders to the extent of dividends
payable from time to time in cash, or to split up or combine
its outstanding shares of beneficial interest; (4) to offer
shares for cash to its shareholders 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 in which 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 Series' shares which it will sell
through the Distributor are, or will be, properly registered
with the Securities and Exchange Commission ("SEC").
(b) The provisions of this Agreement 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.
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(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 Series' shares may be qualified;
(2) from time to time, will furnish to the Distributor as
soon as reasonably practicable true copies of its
periodic reports to shareholders;
(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 Prospectuses 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 Series' shares authorized, any
increases being subject to the approval of
shareholders as may be required;
(6) before filing any further amendment to the
Registration Statement or to any Prospectus, will
furnish to 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 any 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 shareholders
(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 Series' shares, advise the Distributor within one
hour after the close of 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 beneficial interest outstanding,
determined in accordance with any applicable
provisions of law and the provisions of the governing
documents, as amended, of the Fund 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, all advertisements proposed to be used by the
Distributor, 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, and the form of
dealers' sales contract the Distributor intends to use in connection
with sales 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 such form of dealers' sales contract or
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 Prospectuses, as amended from time to time,
determined in accordance with any applicable provision of law, the
provisions of its governing documents and the Conduct Rules promulgated
by NASD Regulation, 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. on behalf of the Fund.
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 Prospectuses, the Statement of
Additional Information, 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 and Annual, Semi-Annual and other
financial reports 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
or qualifying the Series' shares with the various states and
with the SEC.
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(e) The Distributor will pay the costs of any additional copies of
Fund financial and other 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 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 or another nationally recognized telegraph service, 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 provision contained in Paragraph 11 herein, this
Agreement 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 provision of this Agreement is 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.
14. (a) This Agreement shall remain in force as to any Series for a
period of two years from the date hereof and from year to year
thereafter, but only so long as such continuance is
specifically approved at least annually by the Board of
Trustees 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
Trustees 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 Agreement 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 SEC in respect of the
Registration Statement and such proceedings are not withdrawn
or terminated within thirty days. The Distributor may also
terminate this Agreement at any time by giving the Fund
written notice of its intention to terminate the Agreement 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 Agreement 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
partners 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 Agreement 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 Agreement, and of
each part hereof, will be governed by the laws of the Commonwealth of
Pennsylvania.
16. In the event any provision of this Agreement is determined to be void
or unenforceable, such determination shall not affect the remainder of
the Agreement, which shall continue to be in force.
DELAWARE DISTRIBUTORS, L.P.
By: DELAWARE DISTRIBUTORS, INC.,
General Partner
By:
Name:
Title:
Attest:
Name:
Title:
DELAWARE GROUP PREMIUM FUND
By:
Name:
Title:
Attest:
Name:
Title:
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APPENDIX A
Delaware Group Premium Fund
DISTRIBUTION AGREEMENT
Select Growth Series (formerly Aggressive Growth Series)
Select Growth Series - Class 1
Select Growth Series - Class 2
Capital Reserves Series
Capital Reserves Series - Class 1
Capital Reserves Series - Class 2
Cash Reserve Series
Cash Reserve Series - Class 1
Cash Reserve Series - Class 2
Convertible Securities Series
Convertible Securities Series - Class 1
Convertible Securities Series - Class 2
Balanced Series (formerly Delaware Balanced Series)
Balanced Series - Class 1
Balanced Series - Class 2
Growth Opportunities Series (formerly DelCap Series)
Growth Opportunities Series - Class 1
Growth Opportunities Series - Class 2
High Yield Series (formerly Delchester Series)
High Yield Series - Class 1
High Yield Series - Class 2
Devon Series
Devon Series - Class 1
Devon Series - Class 2
Emerging Markets Series
Emerging Markets Series - Class 1
Emerging Markets Series - Class 2
Global Bond Series
Global Bond Series - Class 1
Global Bond Series - Class 2
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Growth and Income Series (formerly Decatur Total Return Series)
Growth and Income Series - Class 1
Growth and Income Series - Class 2
International Equity Series
International Equity Series - Class 1
International Equity Series - Class 2
REIT Series
REIT Series - Class 1
REIT Series - Class 2
Select Growth Series
Select Growth Series - Class 1
Select Growth Series - Class 2
Small Cap Value Series (formerly Value Series)
Small Cap Value Series - Class 1
Small Cap Value Series - Class 2
Social Awareness Series (formerly Quantum Series)
Social Awareness Series - Class 1
Social Awareness Series - Class 2
Strategic Income Series
Strategic Income Series - Class 1
Strategic Income Series - Class 2
Trend Series
Trend Series - Class 1
Trend Series - Class 2
U.S. Growth Series
U.S. Growth Series - Class 1
U.S. Growth Series - Class 2
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