EXHIBIT e(1)
THE MAINSTAY FUNDS
AMENDED AND RESTATED
MASTER DISTRIBUTION AGREEMENT
Amended and Restated Master Distribution Agreement ("Agreement") made
as of this 1st day of August, 2002, between THE MAINSTAY FUNDS, a Massachusetts
business trust (the "Trust"), on behalf of the series listed on Appendix A, as
amended from time to time (hereinafter referred to as the "Series"), and NYLIFE
DISTRIBUTORS INC., a Delaware corporation (the "Distributor").
WITNESSETH:
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; and
WHEREAS, the Shares of the Trust are divided into separate series, 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; and
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; and
WHEREAS, the Trust entered into (1) a Distribution Agreement, dated
January 1, 1994, on behalf of MainStay Capital Appreciation Fund, MainStay Value
Fund, MainStay Convertible Fund, MainStay Total Return Fund, MainStay High Yield
Corporate Bond Fund, MainStay Tax Free Bond Fund, MainStay Government Fund and
MainStay Money Market Fund; (2) a Distribution Agreement, dated August 25, 1994,
on behalf of the MainStay International Equity Fund and the MainStay
International Bond Fund; and (3) a Distribution Agreement, dated February 28,
1997, on behalf of MainStay Blue Chip Growth Fund, MainStay Equity Income Fund,
MainStay Global High Yield Fund, MainStay Growth Opportunities Fund, MainStay
MAP Fund (formerly MainStay MAP Equity Fund), MainStay MidCap Growth Fund,
MainStay Research Value Fund, MainStay Select 20 Equity Fund, MainStay Small Cap
Growth Fund, MainStay Small Cap Value Fund, MainStay Strategic Income Fund, and
MainStay Strategic Value Fund and MainStay U.S. Large Cap Equity Fund, whereby
the Distributor agreed to provide services in connection with the continuous
offering of the Shares of the each of the Series (collectively, the "Current
Distribution Agreements"); and
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; and
WHEREAS, this Agreement amends and restates, in its entirety, the
Current Distribution Agreements in order to combine the Current Distribution
Agreements into a single Amended and
Restated Master Distribution Agreement to reflect the current parties and to
make certain other ministerial changes designed to facilitate the administration
of this Agreement;
NOW, THEREFORE, the parties agree as follows:
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, 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 LLC.
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
(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, 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 and will accept such orders on
behalf of any Series 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 Shares from the
Series 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.
(d) The offering price of the Shares of each Series 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
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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 Series to
purchase Shares of any Series 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 Trust.
(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 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, 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 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
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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.
Section 4. Expenses.
(a) Each separate Series 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) with respect to those Series listed on
Appendix B, as amended from time to time, 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 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. With respect to those Series listed on Appendix
B, as amended from time to time, 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 and any other fees
or sales charges described in the Trust's Prospectus or Statement of Additional
Information.
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
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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 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.
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 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 with respect to each Fund for a period of one year from the effective
date hereof, except with respect to any series of the Trust added to Schedule A
of this Agreement after August 1, 2002, for an initial period of two years from
the date that such series is added, and thereafter only so long as such
continuance is specifically approved at least annually with respect to that Fund
in conformity with the requirements of the 1940 Act and the Rules thereunder.
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 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, 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 Trust 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 shall be liable for any claims against any other
Series.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first above written.
NYLIFE DISTRIBUTORS INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
THE MAINSTAY FUNDS
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and
Chief Executive Officer
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APPENDIX A
SERIES OF THE MAINSTAY FUNDS
TO WHICH THIS AMENDED AND RESTATED
MASTER DISTRIBUTION AGREEMENT APPLIES
SERIES DATE ADDED TO AGREEMENT
------ -----------------------
MainStay Select 20 Equity Fund December 11, 2000
MainStay Small Cap Growth Fund June 1, 1998
MainStay Small Cap Value Fund June 1, 1998
MainStay Mid Cap Growth Fund December 11, 2000
MainStay Capital Appreciation Fund January 1, 1994
MainStay Blue Chip Growth Fund June 1, 1998
MainStay Growth Opportunities Fund June 1, 1998
MainStay Equity Income Fund June 1, 1998
MainStay U.S. Large Cap Equity Fund December 10, 2001
MainStay MAP Fund June 9, 1999
MainStay Research Value Fund June 1, 1998
MainStay Value Fund January 1, 1994
MainStay Strategic Value Fund October 22, 1997
MainStay Convertible Fund January 1, 1994
MainStay Total Return Fund January 1, 1994
MainStay International Equity Fund August 25, 1994
MainStay Global High Yield Fund June 1, 1998
MainStay International Bond Fund August 25, 1994
MainStay High Yield Corporate Bond Fund January 1, 1994
MainStay Strategic Income Fund February 28, 1997
MainStay Government Fund January 1, 1994
MainStay Tax Free Bond Fund January 1, 1994
MainStay Money Market Fund January 1, 1994
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APPENDIX B
SERIES WHICH HAVE ADOPTED RULE 12B-1 PLANS
MainStay Select 20 Equity Fund
MainStay Small Cap Growth Fund
MainStay Small Cap Value Fund
MainStay Mid Cap Growth Fund
MainStay Capital Appreciation Fund
MainStay Blue Chip Growth Fund
MainStay Equity Index Fund
MainStay Growth Opportunities Fund
MainStay Equity Income Fund
MainStay U.S. Large Cap Equity Fund
MainStay MAP Fund
MainStay Research Value Fund
MainStay Value Fund
MainStay Strategic Value Fund
MainStay Convertible Fund
MainStay Total Return Fund
MainStay International Equity Fund
MainStay Global High Yield Fund
MainStay International Bond Fund
MainStay High Yield Corporate Bond Fund
MainStay Strategic Income Fund
MainStay Government Fund
MainStay Tax Free Bond Fund
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