DELAWARE GROUP CASH RESERVE, INC.
DISTRIBUTION AGREEMENT
Distribution Agreement (the "Agreement") made as of this 3rd
day of April, 1995 by and between DELAWARE GROUP CASH RESERVE, INC., a Maryland
corporation (the "Fund"), and DELAWARE DISTRIBUTORS, L.P. (the "Distributor"), a
Delaware limited partnership.
WITNESSETH
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 and the Distributor (or its predecessor)
were the parties to a contract under which the Distributor acted as the national
distributor of the shares of the Fund, which contract was amended and restated
as of the 2nd day of May, 1994 and subsequently readopted as of January 3, 1995
(the "Prior Distribution Agreement"), and
WHEREAS, Delaware Management Holdings, Inc. ("Holdings"), the
indirect parent company of the Distributor completed on the date of this
Agreement a merger transaction with a newly-formed subsidiary of Lincoln
National Corporation, pursuant to which Holdings became a wholly-owned
subsidiary of Lincoln National Corporation, and
WHEREAS, the merger transaction resulted in a change of
control of the Distributor and an automatic termination of the Prior
Distribution Agreement, and
WHEREAS, the Board of Directors of the Fund has determined to
enter into a new agreement with the Distributor as of the date hereof, pursuant
to which the Distributor shall continue to be the national distributor of the
Fund's Original Class (now doing business as Delaware Cash Reserve A Class and
hereinafter referred to as the "Class A Shares"), the Cash Reserve B Class (now
doing business as Delaware Cash Reserve B Class and hereinafter referred to as
the "Class B Shares"), and the Consultant Class (now doing business as Delaware
Cash Reserve Consultant Class and hereinafter referred to as the "Consultant
Class Shares"), which classes may do business under these or such other names as
the Board of Directors may designate from time to time, on the amended and
restated terms and conditions set forth below,
NOW, THEREFORE, the parties agree that the terms set forth
below shall constitute the complete agreement between said parties and shall
amend and restate in its entirety the prior contract between said parties:
1. The Fund hereby engages the Distributor to promote the distribution of
the Fund's shares and, in connection therewith and as agent for the
Fund and not as principal, to advertise, promote, offer and sell the
shares to the public.
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2. (a) The Distributor agrees to serve as distributor of the
Fund's shares and, as agent for the Fund and not as principal,
to advertise, promote and use its best efforts to sell the
Fund's 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 A 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 its services as agent for the Class B Shares, the
Distributor shall be entitled to compensation on each
redemption of shares equal to any deferred sales charge
described in the Prospectus for the Class B Shares from time
to time.
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(d) For the Class B Shares and the Consultant Class Shares, the
Fund shall, in addition, compensate the Distributor for its
services as provided in the Distribution Plan as adopted on
behalf of the Class B Shares and the Consultant Class Shares,
respectively, pursuant to Rule 12b-1 under the Investment
Company Act of 1940 (the "Plans"), copies of which as
presently in force are attached hereto as respectively,
Exhibit "A" and Exhibit "B".
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 as the Distributor shall require from time to
time, and except as provided in Paragraph 3(b) hereof, the
Fund will not sell 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 stock dividends to its
shareholders, 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 in which the Distributor is not registered as a
broker-dealer.
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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 ("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 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 true copies of its
periodic reports to stockholders;
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(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 efforts to keep
a sufficient supply of 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 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 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 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 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
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 shares, and the form of dealers' sales
contract the Distributor intends to use in connection with sales of the
Fund's 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 Articles of Incorporation and the Rules of Fair
Practice 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 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 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 shares or accept payment
for such orders. Sales of Fund 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.
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(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 printing and mailing literature sent to
prospective investors.
(d) The Fund will pay the costs and fees incurred in registering
or qualifying the shares with the various states and with the
SEC.
(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.
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11. The Fund agrees to indemnify, defend and hold harmless 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.
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14. (a) This Agreement shall remain in force 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 Directors or by vote of a
majority of the outstanding voting securities of the Fund 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 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.
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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.
Attest: General Partner
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title: Senior Vice President/
Assistant Secretary Chief Administrative Officer
DELAWARE GROUP CASH RESERVE, INC.
Attest:
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
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Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Chairman
Assistant Secretary
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