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EXHIBIT (e)(2)
DISTRIBUTION AGREEMENT
AGREEMENT made as of this ___ day of __________, 2000, between ECLIPSE
FUNDS, a Massachusetts business trust ("Trust"), and NYLIFE DISTRIBUTORS INC., a
Delaware 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 an open-end management investment company
and it is in the interest of the Trust to offer its shares of beneficial
interest ("Shares") for sale continuously;
WHEREAS, the Shares of the Trust are divided into separate series
("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 Funds or establish and terminate additional Funds; and
WHEREAS, the Trust and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of the Trust's Shares,
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 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.
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 (whether unissued or
treasury shares, in the Trust'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 Trust'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 filed by the
Trust with the Securities and Exchange commission and effective under the
Securities Act of 1933 (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 effectiveness of this Agreement, 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 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.
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(c) The Distributor in its discretion may purchase from the Trust 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 Trust.
(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
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.
(f) The Distributor is authorized on behalf of the Trust 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 Trust.
(a) The Trust 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 Trustees or by order of the Securities and Exchange
Commission: and to deliver certificates (if any) for, or cause the Trust's
transfer and dividend disbursing agent (or such other agent as designated by the
Trust) 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 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 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 Trust's Shares and in the performance of the Distributor under this
Agreement.
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(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 comply with requirements
of securities laws in such states as the Distributor and the Trust may approve;
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.
Section 4. Expenses.
(a) The Trust 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 compliance
with applicable state laws pursuant to Section 3(d) hereof and the cost and
expenses payable to each such state for continuing compliance, 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 Trust and
other materials used by the Trust 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.
Section 5. Fees. Except to the extent set forth in Section 4, the
Distributor will render all services hereunder without compensation or
reimbursement.
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
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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 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 Fund.
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.
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Section 7. Compliance with Securities Laws. The Trust 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 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.
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 Trust or a Fund by vote of a majority of the
Trust's Trustees who are not "interested persons" (as defined in the 1940 Act),
or with respect to the Trust or a Fund by vote of a majority of the outstanding
voting securities of the Trust 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 Trust 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.
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ECLIPSE FUNDS
___________________________________________
Name:______________________________________
Title:_______________________________________
NYLIFE DISTRIBUTORS INC.
By:________________________________________
Name:______________________________________
Title:_______________________________________
