Exhibit No. EX-99.e.1.ii
SECOND AMENDED AND RESTATED
FINANCIAL INTERMEDIARY
DISTRIBUTION AGREEMENT
Second Financial Intermediary Distribution Agreement (the "Agreement") made
as of this 21st day of August, 2003, by and between DELAWARE DISTRIBUTORS, L.P.
("DDLP"), Delaware limited partnership, and LINCOLN FINANCIAL DISTRIBUTORS, INC.
("LFD"), a Connecticut corporation.
WITNESSETH
WHEREAS, DDLP serves as the distributor of a number of investment companies
(individually a "Fund" and, collectively, the "Funds") registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), pursuant to
distribution agreements between each Fund and DDLP; and
WHEREAS, pursuant to the aforementioned distribution agreements, each Fund
has engaged DDLP to promote the distribution of its shares and, in connection
therewith and as agent for the Fund and not as principal, to advertise, promote,
offer and sell the Fund's shares to the public; and
WHEREAS, DDLP desires to enter into an agreement with LFD pursuant to which
LFD shall: (i) promote the sale of the Funds' shares through broker/dealers,
financial advisers and other financial intermediaries (collectively "Financial
Intermediaries"); (ii) create messaging and packaging for certain non-regulatory
sales and marketing materials related to the Funds; and (iii) produce such
non-regulatory sales and marketing materials related to the Funds.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. DDLP hereby engages LFD to promote the sale of shares of each Fund and each
investment portfolio thereof listed in Appendix A hereto (as revised from
time to time) through Financial Intermediaries, and to create and produce
non-regulatory sales and marketing materials related to the Funds as set
forth herein.
2. LFD agrees to use its best efforts to promote the sale of the Funds' shares
designated by DDLP to retail investors through Financial Intermediaries
wherever their sale is legal, in such places and in such manner, not
inconsistent with the law and the provisions of this Agreement and the
Funds' Registration Statements under the Securities Act of 1933, including
the Prospectuses and Statements of Additional Information contained
therein.
3. LFD represents and warrants that it is, and shall remain at all times
during the effectiveness of this Agreement, a broker/dealer registered
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and qualified under applicable state securities laws in each jurisdiction
in which LFD may be required to be qualified to act as a broker/dealer in
securities, and a member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD"). DDLP represents and warrants that it
is, and shall remain at all times during the effectiveness of this
Agreement, a broker/dealer registered under the Exchange Act and qualified
under applicable state securities laws in each jurisdiction in which DDLP
may be required to be qualified to act as a broker/dealer in securities,
and a member in good standing of the NASD.
4. DDLP will provide LFD with:
(a) copies of the current Prospectuses and Statements of Additional
Information for each Fund, including all supplements thereto;
(b) copies of each Fund's periodic reports to shareholders as soon as
reasonably practicable after DDLP receives such reports from the Fund;
(c) technical language, data, and product content, product positioning
recommendations and sales ideas with respect to the Funds;
(d) Fund-related materials prepared by DDLP and designated for internal
use only (subject to the terms and conditions established from time to
time by DDLP); and
(e) prompt notice of the issuance by the Securities and Exchange
Commission (the "SEC") of any stop order suspending the effectiveness
of the Registration Statement of any Fund, or the initiation of any
proceedings for that purpose.
5. LFD shall create and produce non-regulatory, non-shareholder materials for,
about, or related to, the Funds ("Advertising Materials"). DDLP shall
provide product information to LFD, including information related to
product descriptions, strategic positioning and product management. LFD
shall use such information when developing the creative messaging, look and
feel, layout and packaging of the advertising materials. LFD agrees to
submit to DDLP, prior to its use, the form of any Advertising Materials
prepared by LFD and proposed to be generally disseminated by or for LFD,
all Advertising Materialsprepared by LFD and proposed to be used by LFD,
and all Advertising Materials prepared by or for LFD for such dissemination
or for use by others in connection with the sale of the Funds' shares. LFD
also agrees that LFD will file or submit such Advertising Materials to the
NASD, SEC or other regulatory agency as from time to time may be
appropriate, considering practices then current in the industry. LFD agrees
not to use or to permit others to use such Advertising Materials without
the prior written consent of DDLP if any regulatory agency expresses
objection thereto or if DDLP delivers to LFD a written objection thereto.
LFD shall not be responsible for or authorized to prepare materials
relating to the Funds for the purpose of satisfying regulatory
requirements, including, but not limited to, Prospectuses and Statements of
Additional Information and periodic shareholder reports. DDLP and LFD agree
to work together in good faith to resolve any disagreements between DDLP
and LFD about or objections by DDLP to Advertising Materials prepared by
LFD.
6. The responsibility of LFD hereunder shall be limited to the promotion of
sales of the Funds' shares through Financial Intermediaries, and the
creation and production of non-regulatory sales and marketing materials.
LFD is not empowered to approve orders for sales of the Funds' shares or to
accept payment for such orders. Sales of a Fund's shares shall be deemed to
be made when and where accepted by the Fund's transfer agent on behalf of
the Fund.
7. In consideration for the services provided by LFD under this Agreement,
DDLP shall pay LFD the compensation set forth on Schedule A to this
Agreement.
8. With respect to the apportionment of costs between DDLP and LFD associated
with activities with which both are concerned, the following will apply:
(a) DDLP will pay the costs incurred in printing and mailing copies of
Fund Prospectuses and shareholder reports to prospective investors;
(b) DDLP will pay the costs of any additional copies of Fund financial and
other reports and other Fund literature supplied to DDLP by the Fund
for sales promotion purposes;
(c) DDLP will bear the expense of the Advertising Materials that relate
exclusively to the Funds;
(d) DDLP and LFD will jointly bear the expense of advertising and
promotional activities and materials relating both to the Funds and to
the other products distributed by LFD, the apportionment of such
expenses to be agreed upon by DDLP and LFD from time to time; and
(e) The parties will agree to apportion other costs and expenses between
DDLP and LFD as necessary and as mutually agreed from time to time.
9. Both DDLP and LFD may engage in other business, provided such other
business does not interfere with the performance by DDLP and LFD of their
respective obligations under this Agreement.
10. DDLP agrees to indemnify, defend and hold LFD harmless from and against any
and all losses, damages, or liabilities to which LFD may become subject by
reason of DDLP's willful misfeasance, bad faith, or gross negligence in the
performance of its duties under this Agreement. LFD agrees to indemnify,
defend and hold DDLP harmless from and against any and all losses, damages,
or liabilities to which DDLP may become subject by reason of LFD's willful
misfeasance, bad faith, or gross negligence in the performance of its
duties under this Agreement.
11. 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 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000, or at such other address as DDLP or LFD may
designate in writing and furnish to the other.
12. This Agreement shall not be assigned, as that term is defined in the 1940
Act, by LFD and shall terminate automatically in the event of its attempted
assignment by LFD. This Agreement will automatically terminate with respect
to a Fund upon the termination of the distribution agreement between DDLP
and the Fund. This Agreement will automatically terminate with respect to
all Funds in the event that LFD ceases to be a broker/dealer registered
under the Exchange Act or a member in good standing of the NASD. Except as
specifically provided in the indemnification provision contained in
Paragraph 10 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.
13. (a) This Agreement shall remain in force with respect to a Fund for a
period of two year 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/Trustees of the
Fund 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/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.
(b) LFD may terminate this Agreement at any time by giving DDLP 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 DDLP.
(c) DDLP may terminate this Agreement at any time upon prior written
notice to LFD of its intention to so terminate at the expiration of
three months from the date of the delivery of such written notice to
LFD.
(d) The Board of Directors/Trustees of a Fund may terminate this Agreement
with respect to the Fund at any time upon prior written notice to DDLP
and/or LFD of its intention to so terminate at the expiration of three
months from the date of delivery of such written notice to DDLP and/or
LFD.
14. The validity, interpretation and construction of this Agreement, and of
each part hereof, will be governed by the laws of the Commonwealth of
Pennsylvania.
15. 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, X.X. XXXXXXX FINANCIAL DISTRIBUTORS,
By: DELAWARE DISTRIBUTORS, INC., INC.
General Partner
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx Xxxxx
Name: Xxxxx X. Xxxxx Name: Xxxx Xxxxx
Title: Executive Vice President/Chief of Sales, Title: Chief Financial Officer
Client Services & Marketing
SCHEDULE A
to
SECOND AMENDED AND RESTATED
FINANCIAL INTERMEDIARY DISTRIBUTION AGREEMENT
The fees payable by DDLP to LFD under this Schedule A shall be calculated and
paid monthly.
I. Fees with respect to sales of shares of Funds other than Delaware VIP Trust
With respect to each sale through Financial Intermediaries on or after the date
of this Agreement, a non- recurring fee equal to the amount shown below will be
paid by DDLP to LFD.
Basis points
On Sales
---------------
Retail Mutual Funds except as noted below (1) .50%
Xxxxxxx Xxxxx Connect Program .25%
Registered Investment Advisers and .45%
H.D. Vest Institutional Classes
Citigroup Global Capital Markets, Inc. (formerly 0
Xxxxxxx Xxxxx Barney)
International Equity Fund I Class
(1) - A, B, & C classes excluding money
market, house accounts, market timers
In addition to the non-recurring fee set forth above, a fee at the annual rate
set forth below of the average daily net assets of Fund shares outstanding and
beneficially owned by shareholders through Financial Intermediaries, including
those Fund shares sold before the date of this Agreement, will be paid by DDLP
to LFD.
Basis points
On Assets
---------------
Retail Mutual Funds (including money market, .04%
house accounts and market timers)
Xxxxxxx Xxxxx Connect Program 0
Registered Investment Advisers and .04%
H.D. Vest Institutional Classes
Citigroup Global Capital Markets, Inc. .04%
(formerly Xxxxxxx Xxxxx Barney)
International Equity Fund I Class
II. Fees with respect to the Sale of Delaware VIP Trust shares through Allmerica
Variable Products.
With respect to each sale of Delaware VIP Trust shares on or after the date of
this Agreement through variable annuity and variable life insurance products for
which Allmerica Investments, Inc. ("Allmerica") is the principal underwriter
("Allmerica Variable Products"), a non-recurring fee equal to the entire
distribution allowance received by DDLP from Allmerica with respect to such
sale. No other fees will be payable to LFD with respect to sales of Delaware VIP
Trust shares.
APPENDIX A
to
SECOND AMENDED AND RESTATED
FINANCIAL INTERMEDIARY DISTRIBUTION AGREEMENT
Delaware Group Adviser Funds Delaware Group Income Funds
Delaware Diversified Income Fund Delaware Corporate Bond Fund
Delaware U.S. Growth Fund Delaware Delchester Fund
Delaware Extended Duration Bond Fund
Delaware Group Cash Reserve Delaware High-Yield Opportunities Fund
Delaware Cash Reserve Fund Delaware Strategic Income Fund
Delaware Group Equity Funds I Delaware Group Limited-Term Government Funds
Delaware Balanced Fund Delaware Limited-Term Government Fund
Delaware Devon Fund
Delaware Group State Tax-Free Income Trust II
Delaware Group Equity Funds II Delaware Tax-Free Pennsylvania Fund
Delaware Decatur Equity Income Fund
Delaware Diversified Value Fund Delaware Group Tax-Free Fund
Delaware Growth and Income Fund Delaware Tax-Free Insured Fund
Delaware Social Awareness Fund Delaware Tax-Free USA Fund
Delaware Tax-Free USA Intermediate
Delaware Group Equity Funds III
Delaware American Services Fund Delaware Group Tax-Free Money Fund
Delaware Focused Growth Fund Delaware Tax-Free Money Fund
Delaware Focused Value Fund
Delaware Health Care Fund Delaware Pooled Trust
Delaware Small Cap Growth Fund The International Equity Portfolio
Delaware Technology and Innovation Fund The Real Estate Investment Trust Portfolio II
Delaware Trend Fund
Delaware VIP Trust
Delaware Group Equity Funds IV Delaware VIP Balanced Series
Delaware Diversified Growth Fund Delaware VIP Capital Reserves Series
Delaware Growth Opportunities Fund Delaware VIP Cash Reserve Series
Delaware VIP Emerging Markets Series
Delaware Group Equity Funds V Delaware VIP Global Bond Series
Delaware Retirement Income Fund Delaware VIP Growth Opportunities Series
Delaware Small Cap Contrarian Fund Delaware VIP High Yield Series
Delaware Small Cap Value Fund Delaware VIP International Value Equity Series
Delaware VIP REIT Series
Delaware Group Foundation Funds Delaware VIP Select Growth Series
Delaware Balanced Allocation Portfolio Delaware VIP Small Cap Value Series
Delaware Growth Allocation Portfolio Delaware VIP Social Awareness Series
Delaware Income Allocation Portfolio Delaware Trend Fund
Delaware S&P 500 Index Fund Delaware U.S. Growth Fund
Delaware Group Global & International Funds Voyageur Insured Funds
Delaware Emerging Markets Fund Delaware Tax-Free Minnesota Insured Fund
Delaware International Small Cap Value Fund Delaware Tax-Free Arizona Insured Fund
Delaware International Value Equity Fund
Voyageur Intermediate Tax-Free Funds
Delaware Group Government Fund Delaware Tax-Free Minnesota Intermediate Fund
Delaware American Government Bond Fund
Voyageur Mutual Funds II
Voyageur Investment Trust Delaware Tax-Free Colorado Fund
Delaware Tax-Free California Insured Fund
Delaware Tax-Free Florida Fund Voyageur Mutual Funds III
Delaware Tax-Free Florida Insured Fund Delaware Core Equity Fund
Delaware Tax-Free Missouri Insured Fund Delaware Select Growth Fund
Delaware Tax-Free Oregon Insured Fund
Voyageur Tax Free Funds
Voyageur Mutual Funds Delaware Tax-Free Minnesota Fund
Delaware Minnesota High-Yield Municipal Bond Fund
Delaware National High-Yield Municipal Bond Fund
Delaware Tax-Free Arizona Fund
Delaware Tax-Free California Fund
Delaware Tax-Free Idaho Fund
Delaware Tax-Free New York Fund
Agreed to and accepted:
DELAWARE DISTRIBUTORS, X.X. XXXXXXX FINANCIAL DISTRIBUTORS,
By: DELAWARE DISTRIBUTORS, INC., INC.
General Partner
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx Xxxxx
Name: Xxxxx X. Xxxxx Name: Xxxx Xxxxx
Title: Executive Vice President/Chief of Sales, Title: Chief Financial Officer
Client Services & Marketing
