EXHIBIT e(1)
THE MAINSTAY FUNDS
FORM OF 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 New York 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.
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(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 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
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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.
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,
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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 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
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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 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 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 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.
NYLIFE DISTRIBUTORS INC.
By:
--------------------------
Name:
Title:
THE MAINSTAY FUNDS
By:
--------------------------
Name:
Title:
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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
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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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