Exhibit (1)
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
AGREEMENT made as of this 30th day of March, 2005, between ECLIPSE FUNDS
INC., a Maryland corporation (the "Company"), and NYLIFE DISTRIBUTORS INC., a
Delaware. corporation (the "Distributor").
W I T N E S S E T H:
WHEREAS, the Company is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and it is in the interest of the Company to offer its shares of common stock
(the "Shares") for sale continuously;
WHEREAS, the Shares of the Company are divided into separate series (the
"Funds"), each of which has been established pursuant to a written instrument
executed by the Directors of the Company, and the Directors may from time to
time terminate such Funds or establish and terminate additional Funds; and
WHEREAS, the Company and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of the Company's Shares,
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.
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Company hereby appoints the
Distributor its exclusive agent to sell and to arrange for the sale of the
Shares of the Company, 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 Company, from time
to time during the term of this Agreement, the Shares (whether unissued or
treasury shares, in the Company's sole discretion) upon the terms described in
the Funds' prospectus or prospectuses. As used in this Agreement, the term
"Prospectus" shall mean the Funds' prospectus or prospectuses and the statement
of additional information included as part of the Company's Registration
Statement, as such prospectus, prospectuses 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 Company 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 Company's operations, the Distributor will
hold itself available to receive orders, satisfactory to the Distributor, for
the purchase of the Shares and will accept such orders on behalf of the Company
as of the time of receipt of such orders and will transmit such orders as are so
accepted to the Company'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 Company as
principal and may sell Shares 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 for the Company.
(d) The offering price of the Shares shall be the price per share (the
"Offering Price") specified and determined as provided in the Prospectus. The
Company shall furnish the Distributor, with all possible promptness, an advice
of each computation of net asset value.
(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 Company to purchase
Shares 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 Company.
(a) The Company agrees to sell Shares so long as it has Shares available
for sale except for such times at which the sale of its Shares has been
suspended by order of the Directors or by order of the Securities and Exchange
Commission: and to deliver certificates (if any) for, or cause the Company's
transfer and dividend disbursing agent (or such other agent as designated by the
Company) to issue confirmations evidencing, such Shares registered in such names
and amounts as the Distributor has requested in writing, as promptly as
practicable after receipt by the Company of payment therefor at the net asset
value thereof and written request of the Distributor therefor.
(b) The Company 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 Company,
and this shall include one certified copy, upon request by the Distributor, of
all financial statements prepared by the Company 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 Company's Shares and in the performance of the Distributor under
this Agreement.
(c) The Company 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 Company 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 a 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 Company shall use its best efforts to qualify and maintain the
qualification of an appropriate number of its Shares for sale under the
securities laws of such states as the Distributor and the Company may approve,
and, if necessary or appropriate in connection therewith, to qualify and
maintain the qualification of the Company as a broker or dealer in such states;
provided that the Company shall not be required to amend its Articles of
Incorporation 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
Company in connection with such qualifications.
Section 4. Expenses.
(a) The Company shall bear all costs and expenses of the continuous
offering 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, (iv) the
qualifications of the Shares for sale and of the Company pursuant to Section
3(d) hereof and the cost and expenses payable to each such state for continuing
qualification therein, and (v) any expenses assumed by the Funds pursuant to a
Plan of Distribution adopted in conformity with Rule 12b-1 under the 0000 Xxx.
(b) The Distributor shall bear: (i) the costs and expenses of preparing,
printing and distributing any materials not prepared by the Company and other
materials used by the Company in connection with its offering of Shares 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.
(c) Section 5. Fees. Except to the extent set forth in Section 4, the
Distributor will render all services hereunder without compensation or
reimbursement.
(d) Section 6. Indemnification. The Company 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
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 Company 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 director
of the Company or who controls the Company within the meaning of Section 15 of
the 1933 Act, shall not inure to the benefit of such officer, director 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 Company 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
Company's agreement to indemnify the Distributor, its officers and directors and
any such controlling person as aforesaid is expressly conditioned upon the
Company'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 Company at its principal
business office. The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against the Company or any of its
officers or directors in connection with the issue and sale of the Shares of any
Fund.
The Distributor agrees to indemnify, defend and hold the Company, its
officers and directors and any person who controls the Company, 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 Company, its directors
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 Company, its directors 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 Company 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
Company, its directors 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 Company, its officers
or directors or any such controlling person, such notification being given to
the Distributor at its principal business office.
Section 7. Compliance with Securities Laws. The Company represents that it
is registered as an open-end management investment company under the 1940 Act,
and agrees that it will comply with all of the provisions of the 1940 Act and of
the rules and regulations thereunder. The Company 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 terms and provisions of the Securities Exchange Act of 1934, as
amended, including but not limited to the broker-dealer registration
requirements.
Section 8. Term 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 with respect to the Company or a Fund by vote of a majority of the
Company's Directors who are not "interested persons" (as defined in the 1940
Act), or with respect to the Company or a Fund by vote of a majority of the
outstanding voting securities of the Company or the Fund, as the case may be, or
by the Distributor, without penalty, upon sixty days' written notice.
Section 9. 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, Attention: Secretary; or (2) to the Company at 00 Xxxxxxx Xxxxxx, Xxx
Xxxx, X.X. 00000, Attention: President.
Section 10. Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of New York.
Section 11. Use of Name. It is understood that the name "New York Life" or
any derivative thereof or logo associated with that name is the valuable
property of New York Life Insurance Company and its affiliates, and that the
Company has the right to use such name or derivative or logo only with the
approval of New York Life Insurance Company. Upon notification by New York Life
Insurance Company to cease to use such name, the Company (to the extent that it
lawfully can) will cease to use such name or any other name indicating that the
Company is advised or administered by or otherwise connected with New York Life
Insurance Company or any organization which shall have succeeded to its
business.
ECLIPSE FUNDS INC.
By:
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Name: Xxxxxxxxxx X.X. Xxxxxxxx
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Title: Secretary
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