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DELAWARE GROUP PREMIUM FUND, INC.
CONVERTIBLE SECURITIES SERIES
DEVON SERIES
EMERGING MARKETS SERIES
QUANTUM SERIES
STRATEGIC INCOME SERIES
DISTRIBUTION AGREEMENT
Distribution Agreement made as of this 1st day of May, 1997 by and
between DELAWARE GROUP PREMIUM FUND, INC., a Maryland corporation (the "Fund"),
on behalf of its CONVERTIBLE SECURITIES SERIES, DEVON SERIES, EMERGING MARKETS
SERIES, QUANTUM SERIES, and STRATEGIC INCOME 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.
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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.
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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
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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,
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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
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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 Rules of Fair
Practice 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, for acceptance on behalf
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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
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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
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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
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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,
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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.
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DELAWARE DISTRIBUTORS, L.P.
By: DELAWARE DISTRIBUTORS, INC.,
Attest: General Partner
___________________________ By:___________________________
Name: Name:
Title: Title:
DELAWARE GROUP PREMIUM FUND, INC.
Attest: for the CONVERTIBLE SECURITIES
SERIES, DEVON SERIES, EMERGING
MARKETS SERIES, QUANTUM SERIES, and
STRATEGIC INCOME SERIES
___________________________ By:________________________________
Name: Name:
Title: Title:
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