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MAINSTAY EQUITY INDEX FUND
DISTRIBUTION AGREEMENT
AGREEMENT made as of this 1st day of January, 1994, between MAINSTAY
EQUITY INDEX FUND (the "Fund") a series of the XXXXXX-XXXXXXX MAINSTAY SERIES
FUND, a Massachusetts business trust (the "Trust"), and NYLIFE DISTRIBUTORS
INC., a New York corporation (the "Distributor").
W I T N E S S E T H :
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end non-diversified mutual fund
and it is in the interest of the Fund to offer its shares of beneficial
interest (the "Shares") for sale in an initial public offering and in possible
Subsequent Offerings at the discretion of the Fund's Trustees;
WHEREAS, THE Fund and the Distributor wish to enter into an agreement
with each other with respect to the initial offering of the Shares of the Fund,
to commence after the effectiveness of its initial registration statement filed
pursuant to the Securities Act of 1933, as amended (the "1933 Act"), and the
1940 Act, which offering is expected to end on December 12, 1990, subject to
extension, and with respect to any Subsequent Offerings which may be made to the
public in separate offerings as described in the prospectus for the Fund.
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Fund hereby appoints
the Distributor its exclusive agent to sell and to arrange for the sale of the
Shares of the Fund, including both issued and treasury shares, on the terms and
for the period set forth in this Agreement, and the Distributor hereby accepts
such appointment and agrees to act hereunder.
Section 2. Services and Duties of the Distributor.
(a) The Distributor agrees to sell, as agent for the Fund,
during the initial offering and any Subsequent Offerings, during the term of
this Agreement, the Shares of the Fund (whether unissued or treasury shares, in
the Fund's sole discretion) upon the terms described in the Prospectus. As used
in this Agreement, the term Prospectus shall mean the Prospectus and the
Statement of Additional Information included as part of the Fund's Registration
Statement, as such Prospectus and Statement of Additional Information may be
amended or supplemented from time to time, and the term "Registration
Statement" shall mean the Registration Statement most recently filed from time
to time by the Fund with the Securities and Exchange Commission and effective
under the 1933 Act and the 1940 Act, as such Registration Statement is amended
by any amendments thereto at the time in effect.
(b) Upon commencement of the Fund's operations, the Distributor will
hold itself available to receive orders, satisfactory to the Distributor, for
the purchase of the Shares of the
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Fund and will accept such orders on behalf of the Fund as of the time of
receipt of such orders and will transit such orders as are so accepted to the
Fund's transfer and dividend disbursing agent as promptly as practicable.
Purchase orders shall be deemed effective at the times and in the manner set
forth in the Prospectus.
(c) The Distributor in its discretion may purchase from the
Fund as principal and may sell Shares of the Fund to such registered and
qualified retail dealers as it may select. In making agreements with such
dealers, the Distributor shall act only as principal and not as agent or for
the Fund.
(d) The Shares of the Fund are being offered initially at a
public offering price of $10.00 per share, which assumes an investment at an
initial net asset value of $9.45 per share and a maximum sales charge of .55
per share. The maximum sales charge is 5.5% of the public offering price and
5.82 of the net amount invested. There are sales charge reductions on large
orders as shown in the Prospectus. Shares offered in Subsequent Offerings will
be sold to investors at the then-current net asset value the Fund ("closing
price") as of the closing date of the Subsequent Offering, plus a sales charge,
as set forth in the Prospectus.
(e) The Distributor shall not be obligated to sell any
certain number of Shares and nothing herein contained shall prevent the
Distributor from entering into like distribution arrangements with other
investment companies so long as the performance of its obligations hereunder is
not impaired thereby.
(f) The Distributor is authorized on behalf of the Fund to
purchase Shares of the Fund presented to it by dealers at the price determined
in accordance with, and in the manner set forth in, the Prospectus.
Section 3. Duties of the Fund.
(a) The Fund agrees to sell shares of the Fund so long as it
has Shares of the Fund available for sale except for such times at which the
sale of Shares of the Fund has been suspended by order of the Trustees or order
of the Securities and Exchange Commission; and to deliver certificates (if any)
for, or cause the Fund's transfer and dividend disbursing agent to issue
confirmations evidencing, such Shares of the Fund registered in such names and
amounts as the Distributor has requested in writing, as promptly as practicable
after receipt by the Fund of payment therefor at the net asset value thereof
and written request of the Distributor therefor.
(b) The Fund shall keep the Distributor fully informed with
regard to its affairs and shall furnish to the Distributor copies of all
information, financial statements and other papers which the distributor may
reasonably request for use in connection with the distribution of Shares of the
Fund, and this shall include one certified copy, upon request by the
distributor, of all financial statements prepared by the Fund and audited by its
independent accountants and such reasonable number of copies of its most current
Prospectus and annual and interim reports as the Distributor may request, and
shall cooperate fully in the efforts of the Distributor to sell and arrange for
the sale of the Shares of the Fund and in the performance of the Distributor
under this Agreement.
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(c) The Fund shall take, from time to time, all such steps,
including payment of the related filing fee, as may be necessary to register
the Shares under the 1933 Act and to make available for sale such number of
Shares as the Distributor may be expected to sell. The Fund agrees to file from
time to time such amendments, reports and other documents as may be necessary
in order that there may be no untrue statement of a material fact in the
Registration Statement or Prospectus, or necessary in order that there may be
no omission to state a material fact in the Registration Statement or
Prospectus which omission would make the statements therein misleading.
(d) The Fund shall use its best efforts to qualify and
maintain the qualification of an appropriate number of Shares of the Fund for
sale under the securities laws of such states as the Distributor and the Fund
may approve, and, if necessary or appropriate in connection therewith, to
qualify and maintain the qualification of the Fund as a broker or dealer in
such states; provided that the Fund shall not be required to amend its
Declaration of Trust or By-laws to comply with the laws of any state, to
maintain an office in any state, to change the terms of the offering of its
Shares in any state from the terms set forth in its Registration Statement and
Prospectus, to qualify as a foreign corporation in any state or to consent to
service of process in any state other than with respect to claims arising out
of the offering of its Shares. The Distributor shall furnish such information
and other material relating to its affairs and activities as may be required by
the Fund in connection with such qualifications.
Section 4. Expenses.
(a) The Fund shall bear all costs and expenses of the initial
offering and any Subsequent Offerings of its Shares in connection with: (i)
fees and disbursements of its counsel and independent accountants; (ii) the
preparation, filing and printing of any registration statements and/or
prospectuses required by and under the federal securities laws; (iii) the
preparation and mailing of annual and interim reports, prospectuses and proxy
materials to shareholders; and (iv) the qualifications of the Shares for sale
and of the Fund pursuant to Section 3(d) hereof and the cost and expenses
payable to each such state for continuing qualification therein.
(b) The Distributor shall bear: (i) the costs and expenses of
preparing, printing and distributing any materials not prepared by the Fund and
other materials used by the Distributor in connection with its offering of
Shares of the Fund for sale to the public, including the additional cost of
printing copies of the Prospectus and of annual and interim reports to
shareholders, other than copies thereof required for distribution to existing
shareholders or for filing with any federal securities authorities; (ii) any
expenses of advertising incurred by the Distributor in connection with such
offering; and (iii) the expenses of registration or qualification of the
Distributor as a dealer or broker under federal or state laws and the expenses
of continuing such registration or qualification.
Section 5. Indemnification. The Fund agrees to indemnify, defend and
hold the Distributor, its officers and directors and any person who controls
the Distributor within the meaning of Section 15 of the 1933 Act, free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which the
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Distributor, its officers, directors or any such controlling person may incur
under the 1933 Act, or under common law or otherwise, arising out of or based
upon any alleged untrue statement of a material fact contained in the
Registration Statement or Prospectus or arising out of or based upon any
alleged omission to state a material fact required to be stated in either
thereof or necessary to make the statements in either thereof not misleading,
except insofar as such claims, demands, liabilities or expenses arise out of or
are based upon any such untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
furnished in writing by the Distributor to the Fund for use in the Registration
Statement or Prospectus; provided, however, that this indemnity agreement, to
the extent that it might require indemnity of any person who is also an officer
or Trustee of the trust or who controls the Fund within the meaning of Section
15 of the 1933 Act, shall not inure to the benefit of such officer, Trustee or
controlling person unless a court of competent jurisdiction shall determine, or
it shall have been determined by controlling precedent, that such result would
not be against public policy as expressed in the 1933 Act; and further
provided, that in no event shall anything contained herein be so construed as
to protect the Distributor against any liability to the Fund or to its security
holders to which the Distributor would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of its reckless disregard of its obligations under this
Agreement. The Fund's agreement to indemnify the Distributor, its officers and
directors and any such controlling person as aforesaid is expressly conditioned
upon the Fund's being promptly notified of any action brought against the
Distributor, its officers or directors, or any such controlling person, such
notification to be given by letter or telegram addressed to the Fund at its
principal business office. The Fund agrees promptly to notify the Distributor
of the commencement of any litigation or proceedings against the Fund or any of
its officers or Trustees in connection with the issue and sale of the Shares of
the Fund.
The Distributor agrees to indemnify, defend and hold the Fund, its
officers and Trustees and any person who controls the Fund, if any, within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all claims, demands, liabilities and expenses (including the cost of
investigating or defending against such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Fund, its Trustees or
officers or any such controlling person may incur under the 1933 Act or under
common law or otherwise, but only to the extent that such liability or expense
incurred by the Fund, its Trustees or officers or such controlling person
resulting from such claims or demands shall arise out of or be based upon any
alleged untrue statement of a material fact contained in information furnished
in writing by the Distributor to the Fund for use in the Registration Statement
or Prospectus or shall arise out of or be based upon any alleged omission to
state a material fact in connection with such information required to be stated
in the Registration Statement or Prospectus or necessary to make such
information not misleading. The Distributor's agreement to indemnify the Fund,
its Trustees and officers, and any such controlling person as aforesaid is
expressly conditioned upon the Distributor's being promptly notified of any
action brought against the Fund, its officers or Trustees or any such
controlling person, such notification being given to the Distributor at its
principal business office.
Section 6. Compliance with Securities Laws. The Fund represents that
it is registered as an open-end, non-diversified mutual fund under the 1940
Act, and agrees that it will comply
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with all of the provisions of the 1940 Act and of the rules and regulations
thereunder. The Fund and the Distributor each agree to comply with all of the
applicable terms and provisions of the 1940 Act, the 1933 Act and, subject to
the provisions of Section 3(d) hereof, all applicable state Blue Sky laws,
including but not limited to the broker-dealer registration requirements. The
Distributor agrees to comply with all of the applicable therms and provisions
of the Securities Exchange Act of 1934, as amended, including but not limited
to the broker-dealer registration requirements.
Section 7. Terms of Agreement; Termination. This Agreement shall
commence on the date first set forth above. This Agreement shall continue in
effect for a period more than two years from the date hereof only so long as
such continuance is specifically approved at least annually in conformity with
the requirements of the 1940 Act.
This Agreement shall terminate automatically in the event of its
assignment (as defined by the 1940 Act). In addition, this Agreement may be
terminated by either party at any time, without penalty, on not more than sixty
(60) days' nor less than thirty (30) days' written notice to the other party.
Section 8. Notices. Any notice required to be given pursuant to
this Agreement shall be deemed duly given if delivered or mailed by registered
mail, postage prepaid, (1) to the Distributor at 00 Xxxxxxx Xxxxxx, Xxx Xxxx,
X.X. 00000, or (2) to the Fund at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
Section 9. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York.
Section 10. Liability of Shareholders, Trustees, etc. It is understood
and expressly stipulated that none of the Trustees, officers, agents or
shareholders of the Fund shall be personally liable hereunder. The name
XxxXxx-Xxxxxxx MainStay Series Fund is the designation of the Trustees for the
time being under a Declaration of Trust dated January 9, 1985, as amended, and
all persons dealing with the Trust must look solely to the property of the
Trust for the enforcement of any claims against the Trust as neither the
Trustees, officers, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Trust. No series of the Trust shall
be liable for any claims against any other series of the Trust.
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IN WITNESS WHEREOF, the parties have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
NYLIFE DISTRIBUTORS INC.
By:
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President and Chief Executive Officer
MAINSTAY EQUITY INDEX FUND
By:
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President and Chief Executive Officer
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