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C O M P O S I T E
THE MAINSTAY FUNDS
[MAINSTAY CAPITAL APPRECIATION FUND]
[MAINSTAY VALUE FUND]
[MAINSTAY CONVERTIBLE FUND]
[MAINSTAY GLOBAL FUND]
[MAINSTAY TOTAL RETURN FUND]
[MAINSTAY NATURAL RESOURCES/GOLD METALS FUND]
[MAINSTAY HIGH YIELD CORPORATE BOND FUND]
[MAINSTAY GOVERNMENT FUND]
[MAINSTAY TAX FREE BOND FUND]
[MAINSTAY MONEY MARKET FUND]
DISTRIBUTION AGREEMENT
AGREEMENT made as of this 1st day of January, 1994, between THE MAINSTAY
FUNDS, a Massachusetts business trust (the "Trust"), on behalf of the [MAINSTAY
CAPITAL APPRECIATION FUND, MAINSTAY VALUE FUND, MAINSTAY CONVERTIBLE FUND,
MAINSTAY GLOBAL FUND, MAINSTAY TOTAL RETURN FUND, MAINSTAY NATURAL
RESOURCES/GOLD FUND, MAINSTAY HIGH YIELD CORPORATE BOND FUND, MAINSTAY
GOVERNMENT FUND, MAINSTAY TAX FREE BOND FUND, and MAINSTAY MONEY MARKET FUND,]
(the "Funds"), and NYLIFE DISTRIBUTORS INC., a New York corporation (the
"Distributor").
W I T N E S S E T H:
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as a diversified open-end management
investment company and it is in the interest of the Trust to offer its shares of
beneficial interest (the "Shares") for sale continuously;
WHEREAS, the Shares of the Trust are divided into separate series
including the Funds, each of which has been established pursuant to a written
instrument executed by the Trustees of the Trust, and the Trustees may from time
to time terminate such series or establish and terminate additional series of
the Trust;
WHEREAS, the Trust currently has an effective registration statement
filed pursuant to the Securities Act of 1933, as amended (the "1933 Act"), and
the 1940 Act.
WHEREAS, the Trust and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of the Shares of the
series of the Trust, effective as of January 1, 1994.
NOW, THEREFORE, the parties agree as follows:
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Section 1. Appointment of the Distributor. The Trust hereby
appoints the Distributor its exclusive agent to sell and to arrange for the
sale of the Shares of the series of the Trust, 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; except that the Distributor shall not act as agent for the Trust in
the sale of shares of the Money Market Fund to any other Fund advised by
XxxXxx-Xxxxxxx Financial Corporation.
Section 2. Services and Duties of the Distributor.
(a) The Distributor agrees to sell, as agent for the Trust, from
time to time during the term of this Agreement, the Shares of each series of
the Trust (whether unissued or treasury shares, in the Trust's sole discretion)
upon the terms described in the Prospectus. As used in this Agreement, the term
"Prospectus" shall mean the Prospectus, which may include separate prospectuses
for each series of the Trust, and the Statement of Additional Information
included as part of the Trust'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 Trust 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 the effective date of this Agreement, the Distributor will
hold itself available to receive orders, satisfactory to the Distributor, for
the purchase of the Shares of any series of the Trust and will accept such
orders on behalf of any series of the Trust as of the time of receipt of such
orders and will transmit such orders as are so accepted to the Trust'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 series
of the Trust as principal and may sell Shares of each series 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
Trust or for the series of the Trust.
(d) The offering price of the Shares of each series of the Trust
shall be the net asset value (as defined in the Declaration of Trust of the
Trust and determined as set forth in the Prospectus) per Share of each series
next determined following receipt of an order, plus the applicable sales
charge, if any, determined as set forth in the Prospectus. The Trust 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.
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(f) The Distributor is authorized on behalf of the series of the
Trust to purchase Shares of any series of the Trust 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 Trust agrees to sell Shares of its various series so long
as it has Shares of any such series available for sale except for such times at
which the sale of Shares of any such series 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 Trust's transfer and dividend
disbursing agent to issue confirmations evidencing, such Shares of any such
series registered in such names and amounts as the Distributor has requested in
writing, as promptly as practicable after receipt by the series of the Trust of
payment therefor at the net asset value thereof and written request of the
Distributor therefor.
(b) The Trust 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 series of
the Trust, and this shall include one certified copy, upon request by the
Distributor, of all financial statements prepared by the Trust 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 series of the Trust and in the
performance of the Distributor under this Agreement.
(c) The Trust 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 Trust 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 Trust shall use its best efforts to qualify and maintain
the qualification of an appropriate number of Shares of its series for sale
under the securities laws of such states as the Distributor and the Trust may
approve, and, if necessary or appropriate in connection therewith, to qualify
and maintain the qualification of the Trust as a broker or dealer in such
states; provided that the Trust 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
Trust in connection with such qualifications.
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Section 4. Expenses.
(a) Each separate series of the Trust shall bear all costs and
expenses of the continuous offering of its shares, including such common costs
and expenses which will be allocated among the series, 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 Trust 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 Trust 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 Trust
and other materials used by the Distributor in connection with its offering of
Shares of each series of the Trust 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. Fees. In addition to any fees received pursuant to the
Plan of Distribution adopted in conformity with Rule 12b-1 under the 1940 Act
as described in section 4(a) and (b) herein, the Distributor shall also be
entitled to retain all proceeds derived from the imposition of contingent
deferred sales charges as described in the Trust's Prospectus.
Section 6. Indemnification. The Trust 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 Trust 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 Trust 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
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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 Trust 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 Trust's agreement to indemnify the Distributor, its officers and directors
and any such controlling person as aforesaid is expressly conditioned upon the
Trust'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 Trust at its principal business
office. The Trust agrees promptly to notify the Distributor of the commencement
of any litigation or proceedings against the Trust or any of its officers or
Trustees in connection with the issue and sale of the Shares of any series of
the Trust.
The Distributor agrees to indemnify, defend and hold the Trust, its
officers and Trustees and any person who controls the Trust, 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 Trust, 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 Trust, 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 Trust 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
Trust, 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 Trust, its officers or Trustees or any such
controlling person, such notification being given to the Distributor at its
principal business office.
Section 7. Compliance with Securities Laws. The Trust represents
that it is registered as a diversified 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 Trust 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.
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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 by either party at any time, without penalty, on not more than sixty
days' nor less than thirty days' written notice to the other party.
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, or (2) to the Trust at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
Section 10. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York.
Section 11. Liability of Shareholders. Trustees, etc. It is
understood and expressly stipulated that none of the Trustees, officers, agents
or shareholders in the Trust shall be personally liable hereunder. The name
"The MainStay Funds" is the designation of the Trustees for the time being
under a Declaration of Trust dated January 9, 1986, 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.
NYLIFE DISTRIBUTORS INC.
By:
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President and Chief Executive Officer
THE MAINSTAY FUNDS
By:
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President and Chief Executive Officer
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