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SUB-ADVISORY AGREEMENT
AGREEMENT made this ____ day of ______, 1998 among MainStay VP Series
Fund, Inc., (the "Company"), New York Life Insurance Company (the "Adviser") and
The Dreyfus Corporation (the "Sub-Adviser").
WHEREAS, the Company is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end, management investment
company;
WHEREAS, the Company is authorized to issue separate series, each of
which will offer a separate class of shares, each series having its own
investment objective or objectives, policies, and limitations;
WHEREAS, the Company currently offers shares in multiple series, may
offer shares of additional series in the future, and intends to offer shares of
additional series in the future;
WHEREAS, pursuant to a Investment Advisory Agreement, effective as of
December 15, 1996, a copy of which has been provided to the Sub-Adviser, the
Company has retained the Adviser to render advisory, management, and
administrative services to many of the Company's series;
WHEREAS, the Company and the Adviser wish to retain the Sub-Adviser to
furnish investment advisory services to one or more of the series of the
Company, and the Sub-Adviser is willing to furnish such services to the Company
and the Adviser;
NOW THEREFORE, in consideration of the premises and the promises and
mutual covenants herein contained, it is agreed between the Company, the
Adviser, and the Sub-Adviser as follows:
I. Appointment. The Company and the Adviser hereby appoint The
Dreyfus Corporation to act as Sub-Adviser to the Series designated on Schedule A
of this Agreement (the "Series") for the periods and on the terms set forth in
this Agreement. The Sub-Adviser accepts such appointment and agrees to furnish
the services herein set forth for the compensation herein provided.
In the event the Company designates one or more series other
than the Series with respect to which the Company and the Adviser wish to retain
the Sub-Adviser to render investment advisory services hereunder, they shall
notify the Sub-Adviser in writing. If the Sub-Adviser is willing to render such
services, it shall notify the Company and Adviser in writing, whereupon such
series shall become a Series hereunder, and be subject to this Agreement.
2. Sub-Advisory Duties. Subject to the supervision of the
Company's Board of Directors and the Adviser, the Sub-Adviser will provide a
continuous investment program for the Series' portfolio and determine the
composition of the assets of the Series' portfolio, including determination of
the purchase, retention, or sale of the securities, cash, and other investments
contained in the portfolio. The Sub-Adviser will provide investment research and
conduct a
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continuous program of evaluation, investment, sales, and reinvestment of the
Series' assets by determining the securities and other investments that shall be
purchased, entered into, sold, closed, or exchanged for the Series, when these
transactions should be executed, and what portion of the assets of the Series
should be held in the various securities and other investments in which it may
invest, and the Sub-Adviser is hereby authorized to execute and perform such
services on behalf of the Series. To the extent permitted by the investment
policies of the Series, the Sub-Adviser shall make decisions for the Series as
to foreign currency matters and make determinations as to and execute and
perform foreign currency exchange contracts on behalf of the Series. The
Sub-Adviser will provide the services under this Agreement in accordance with
the Series' investment objective or objectives, policies, and restrictions as
stated in the Company's Registration Statement filed with the Securities and
Exchange Commission ("SEC"), as amended, copies of which shall be sent to the
Sub-Adviser by the Adviser. The Sub-Adviser further agrees as follows:
(a) The Sub-Adviser will (1) take all steps necessary to
manage the Series so that it will qualify as a regulated investment company
under Subchapter M of the Internal Revenue Code, (2) take all steps necessary to
manage the Series so as to ensure compliance by the Series with the
diversification requirements of Section 817(h) of the Internal Revenue Code and
regulations issued thereunder, and (3) use reasonable efforts to manage the
Series so as to ensure compliance by the Series with any other rules and
regulations pertaining to investment vehicles underlying variable annuity or
variable life insurance policies. The Adviser or the Company will notify the
Sub-Adviser of any pertinent changes, modifications to, or interpretations of
Section 817(h) of the Internal Revenue Code and regulations issued thereunder.
(b) The Sub-Adviser will conform with the 1940 Act and all
rules and regulations thereunder, all other applicable federal and state laws
and regulations, with any applicable procedures adopted by the Company's Board
of Directors of which the Sub-Adviser has been sent a copy, and the provisions
of the Registration Statement of the Company under the Securities Act of 1933
(the "1933 Act") and the 1940 Act, as supplemented or amended, of which the
Sub-Adviser has received a copy. The Adviser or the Company will notify the
Sub-Adviser of pertinent provisions of applicable state insurance law with which
the Sub-Adviser must comply under this Paragraph 2(b).
(c) On occasions when the Sub-Adviser deems the purchase or
sale of a security to be in the best interest of the Series as well as of other
investment advisory clients of the Sub-Adviser or any of its affiliates, the
Sub-Adviser may, to the extent permitted by applicable laws and regulations, but
shall not be obligated to, aggregate the securities to be so sold or purchased
with those of its other clients where such aggregation is not inconsistent with
the policies set forth in the Registration Statement. In such event, allocation
of the securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-Adviser in a manner that is fair and
equitable in the judgment of the Sub-Adviser in the exercise of its fiduciary
obligations to the Company and to such other clients, subject to review by the
Adviser and the Board of Directors.
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(d) In connection with the purchase and sale of securities for
the Series, the Sub-Adviser will arrange for the transmission to the custodian
and portfolio accounting agent for the Series on a daily basis, such
confirmation, trade tickets, and other documents and information, including, but
not limited to, Cusip, Sedol, or other numbers that identify securities to be
purchased or sold on behalf of the Series, as may be reasonably necessary to
enable the custodian and portfolio accounting agent to perform its
administrative and recordkeeping responsibilities with respect to the Series.
With respect to portfolio securities to be purchased or sold through the
Depository Trust Company, the Sub-Adviser will arrange for the automatic
transmission of the confirmation of such trades to the Company's custodian and
portfolio accounting agent.
(e) The Sub-Adviser will monitor on a daily basis the
determination by the portfolio accounting agent for the Company of the valuation
of portfolio securities and other investments of the Series. The Sub-Adviser
will assist the custodian and portfolio accounting agent for the Company in
determining or confirming, consistent with the procedures and policies stated in
the Registration Statement for the Company, the value of any portfolio
securities or other assets of the Series for which the custodian and portfolio
accounting agent seeks assistance from or identifies for review by the
Sub-Adviser.
(f) The Sub-Adviser will make available to the Company and the
Adviser, promptly upon request, all of the Series' investment records and
ledgers maintained by the Sub-Adviser (which shall not include the records and
ledgers maintained by the custodian or portfolio accounting agent for the
Company) as are necessary to assist the Company and the Adviser to comply with
requirements of the 1940 Act and the Investment Advisers Act of 1940 (the
"Advisers Act"), as well as other applicable laws. The Sub-Adviser will furnish
to regulatory authorities having the requisite authority any information or
reports in connection with such services which may be requested in order to
ascertain whether the operations of the Company are being conducted in a manner
consistent with applicable laws and regulations.
(g) The Sub-Adviser will provide reports to the Company's
Board of Directors for consideration at meetings of the Board on the investment
program for the Series and the issuers and securities represented in the Series'
portfolio, and will furnish the Company's Board of Directors with respect to the
Series such periodic and special reports as the Directors and the Adviser may
reasonably request.
(h) In rendering the services required under this Agreement,
the Sub-Adviser may, from time to time, employ or associate with itself such
person or persons as it believes necessary to assist it in carrying out its
obligations under this Agreement. However, the Sub-Adviser may not retain as
subadviser any company that would be an "investment adviser," as that term is
defined in the 1940 Act, to the Series unless the contract with such company is
approved by a majority of the Company's Board of Directors and a majority of
Directors who are not parties to any agreement or contract with such company and
who are not "interested persons," as defined in the 1940 Act, of the Company,
the Adviser, or the Sub-Adviser, or any such company that is retained as
subadviser, and is approved by the vote of a majority of the outstanding voting
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securities of the applicable Series of the Company to the extent required by the
1940 Act. The Sub-Adviser shall be responsible for making reasonable inquiries
and for reasonably ensuring that any employee of the Sub-Adviser, any subadviser
that the Sub-Adviser has employed or with which it has associated with respect
to the Series, or any employee thereof has not, to the best of the Sub-Adviser's
knowledge, in any material connection with the handling of Company assets:
(i) been convicted, in the last ten (10) years, of any felony
or misdemeanor arising out of conduct involving embezzlement,
fraudulent conversion, or misappropriation of funds or
securities, involving violations of Sections 1341, 1342, or
1343 of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or involving the
purchase or sale of any security; or
(ii) been found by any state regulatory authority, within the
last ten (10) years, to have violated or to have acknowledged
violation of any provision of any state insurance law
involving fraud, deceit, or knowing misrepresentation; or
(iii) been found by any federal or state regulatory
authorities, within the last ten (10) years, to have violated
or to have acknowledged violation of any provision of federal
or state securities laws involving fraud, deceit, or knowing
misrepresentation.
3. Broker-Dealer Selection. The Sub-Adviser is responsible for
decisions to buy and sell securities and other investments for the Series'
portfolio, broker-dealer selection, and negotiation of brokerage commission
rates. The Sub-Adviser's primary consideration in effecting a security
transaction will be to obtain the best execution for the Series, taking into
account the factors specified in the prospectus and/or statement of additional
information for the Company, which include price (including the applicable
brokerage commission or dollar spread), the size of the order, the nature of the
market for the security, the timing of the transaction, the reputation, the
experience and financial stability of the broker-dealer involved, the quality of
the service, the difficulty of execution, and the execution capabilities and
operational facilities of the firm involved, and the firm's risk in positioning
a block of securities. Accordingly, the price to the Series in any transaction
may be less favorable than that available from another broker-dealer if the
difference is reasonably justified, in the judgment of the Sub-Adviser in the
exercise of its fiduciary obligations to the Company, by other aspects of the
portfolio execution services offered. Subject to such policies as the Board of
Directors may determine and consistent with Section 28(e) of the Securities
Exchange Act of 1934, the Sub-Adviser shall not be deemed to have acted
unlawfully or to have breached any duty created by this Agreement or otherwise
solely by reason of its having caused the Series to pay a broker-dealer for
effecting a portfolio investment transaction in excess of the amount of
commission another broker-dealer would have charged for effecting that
transaction, if the Sub-Adviser or its affiliate determines in good faith that
such amount of commission was reasonable in relation to the value of the
brokerage and research services provided by such broker-dealer, viewed in terms
of either that particular transaction or the Sub-Adviser's or its affiliate's
overall responsibilities with respect to the Series and to their
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other clients as to which they exercise investment discretion. To the extent
consistent with these standards, the Sub-Adviser is further authorized to
allocate the orders placed by it on behalf of the Series to the Sub-Adviser if
it is registered as a broker-dealer with the SEC, to its affiliated
broker-dealer, or to such brokers and dealers who also provide research or
statistical material, or other services to the Series, the Sub-Adviser, or an
affiliate of the Sub-Adviser. Such allocation shall be in such amounts and
proportions as the Sub-Adviser shall determine consistent with the above
standards, and the Sub-Adviser will report on said allocation regularly to the
Board of Directors of the Company indicating the broker-dealers to which such
allocations have been made and the basis therefor.
4.Disclosure about Sub-Adviser. The Sub-Adviser has reviewed
the post-effective amendment to the Registration Statement for the Company filed
with the Securities and Exchange Commission that contains disclosure about the
Sub-Adviser, and represents and warrants that, with respect to the disclosure
about the Sub-Adviser or information relating, directly or indirectly, to the
Sub-Adviser, such Registration Statement contains, as of the date hereof, no
untrue statement of any material fact and does not omit any statement of a
material fact which was required to be stated therein or necessary to make the
statements contained therein not misleading. The Sub-Adviser further represents
and warrants that it is a duly registered investment adviser under the Advisers
Act and a duly registered investment adviser in all states in which the
Sub-Adviser is required to be registered.
5. Expenses. During the term of this Agreement, the
Sub-Adviser will pay all expenses incurred by it and its staff and for their
activities in connection with its Sub-Advisory duties under this Agreement. The
Adviser or the Company shall be responsible for all the expenses of the
Company's operations including, but not limited to:
(a) Expenses of all audits by the Company's independent public
accountants;
(b) Expenses of the Series' transfer agent, registrar,
dividend disbursing agent, and shareholder recordkeeping services;
(c) Expenses of the Series' custodial services including
recordkeeping services provided by the custodian;
(d) Expenses of obtaining quotations for calculating the value
of the Series' net assets;
(e) Expenses of obtaining Portfolio Activity Reports and
Analyses of International Management Reports (as appropriate) for the Series;
(f) Expenses of maintaining the Company's tax records;
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(g) Salaries and other compensation of any of the Company's
executive officers and employees, if any, who are not officers, directors,
stockholders, or employees of the Sub-Adviser or an affiliate of the
Sub-Adviser;
(h) Taxes levied against the Company;
(i) Brokerage fees and commissions in connection with the
purchase and sale of portfolio securities for the Series;
(j) Costs, including the interest expense, of borrowing money;
(k) Costs and/or fees incident to meetings of the Company's
shareholders, the preparation and mailings of prospectuses and reports of the
Company to its shareholders, the filing of reports with regulatory bodies, the
maintenance of the Company's existence, and the regulation of shares with
federal and state securities or insurance authorities;
(l) The Company's legal fees, including the legal fees related
to the registration and continued qualification of the Company's shares for
sale;
(m) Costs of printing stock certificates representing shares
of the Company;
(n) Directors' fees and expenses to Directors who are not
officers, employees, or stockholders of the Sub-Adviser or any affiliate
thereof;
(o) The Company's pro rata portion of the fidelity bond
required by Section 17(g) of the 1940 Act, or other insurance premiums;
(p) Association membership dues;
(q) Extraordinary expenses of the Company as may arise
including expenses incurred in connection with litigation, proceedings, and
other claims (unless the Sub-Adviser is responsible for such expenses under
Section 14 of this Agreement), and the legal obligations of the Company to
indemnify its Directors, officers, employees, shareholders, distributors, and
agents with respect thereto; and
(r) Organizational and offering expenses.
6. Compensation. For the services provided, the Adviser will
pay the Sub-Adviser a fee, payable monthly, as described on Schedule B.
7. Seed Money. The Adviser agrees that the Sub-Adviser shall
not be responsible for providing money for the initial capitalization of the
Series.
8. Compliance.
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(a) The Sub-Adviser agrees that it shall immediately notify
the Adviser and the Company (1) in the event that the SEC has censured the
Sub-Adviser; placed limitations upon its activities, functions or operations;
suspended or revoked its registration as an investment adviser; or has commenced
proceedings or an investigation that may result in any of these actions, (2)
upon having a reasonable basis for believing that the Series has ceased to
qualify or might not qualify as a regulated investment company under Subchapter
M of the Internal Revenue Code, or (3) upon having a reasonable basis for
believing that the Series has ceased to comply with the diversification
provisions of Section 817(h) of the Internal Revenue Code or the Regulations
thereunder. The Sub-Adviser further agrees to notify the Adviser and the Company
immediately of any material fact known to the Sub-Adviser respecting or relating
to the Sub-Adviser that is not contained in the Registration Statement or
prospectus for the Company, or any amendment or supplement thereto, or of any
statement contained therein that becomes untrue in any material respect.
(b) The Adviser agrees that it shall immediately notify the
Sub-Adviser (1) in the event that the SEC has censured the Adviser or the
Company; placed limitations upon either of their activities, functions, or
operations; suspended or revoked the Adviser's registration as an investment
adviser; or has commenced proceedings or an investigation that may result in any
of these actions, (2) upon having a reasonable basis for believing that the
Series has ceased to qualify or might not qualify as a regulated investment
company under Subchapter M of the Internal Revenue Code, or (3) upon having a
reasonable basis for believing that the Series has ceased to comply with the
diversification provisions of Section 817(h) of the Internal Revenue Code or the
Regulations thereunder.
9. Books and Records. In compliance with the requirements of
Rule 31a-3 under the 1940 Act, the Sub-Adviser hereby agrees that all records
which it maintains for the Series are the property of the Company and further
agrees to surrender promptly to the Company any of such records upon the
Company's or the Adviser's request, although the Sub-Adviser may, at its own
expense, make and retain a copy of such records. The Sub-Adviser further agrees
to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act the
records required to be maintained by Rule 31a-l under the 1940 Act and to
preserve the records required by Rule 204-2 under the Advisers Act for the
period specified in the Rule.
10. Cooperation. Each party to this Agreement agrees to
cooperate with each other party and with all appropriate governmental
authorities having the requisite jurisdiction (including, but not limited to,
the Securities and Exchange Commission and state insurance regulators) in
connection with any investigation or inquiry relating to this Agreement or the
Company.
11. Representations Respecting Sub-Adviser. The Adviser and
the Company agree that neither the Company, the Adviser, nor affiliated persons
of the Company or the Adviser shall give any information or make any
representations or statements in connection with the sale of shares of the
Series concerning the Sub-Adviser or the Series other than the information or
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representations contained in the Registration Statement, prospectus, or
statement of additional information for the Company shares, as they may be
amended or supplemented from time to time, or in reports or proxy statements for
the Company, or in sales literature or other promotional material approved in
advance by the Sub-Adviser, except with the prior permission of the Sub-
Adviser. The parties agree that in the event that the Adviser or an affiliated
person of the Adviser sends sales literature or other promotional material to
the Sub-Adviser for its approval and the Sub-Adviser has not commented within 30
days, the Adviser and its affiliated persons may use and distribute such sales
literature or other promotional material, although, in such event, the Sub-
Adviser shall not be deemed to have approved of the contents of such sales
literature or other promotional material.
12. Control. Notwithstanding any other provision of the
Agreement, it is understood and agreed that the Company shall at all times
retain the ultimate responsibility for and control of all functions performed
pursuant to this Agreement and reserve the right to direct, approve, or
disapprove any action hereunder taken on its behalf by the Sub-Adviser.
13. Services Not Exclusive. It is understood that the services
of the Sub-Adviser are not exclusive, and nothing in this Agreement shall
prevent the Sub-Adviser (or its affiliates) from providing similar services to
other clients, including investment companies (whether or not their investment
objectives and policies are similar to those of the Series) or from engaging in
other activities.
14. Liability. Except as may otherwise be required by the 1940
Act or the rules thereunder or other applicable law, the Company and the Adviser
agree that the Sub-Adviser, any affiliated person of the Sub-Adviser, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act controls
the Sub-Adviser shall not be liable for, or subject to any damages, expenses, or
losses in connection with, any act or omission connected with or arising out of
any services rendered under this Agreement, except by reason of willful
misfeasance, bad faith, or gross negligence in the performance of the
Sub-Adviser's duties, or by reason of reckless disregard of the Sub-Adviser's
obligations and duties under this Agreement.
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15. Indemnification.
(a) The Adviser agrees to indemnify and hold harmless the
Sub-Adviser, any affiliated person of the Sub-Adviser, and each person, if any,
who, within the meaning of Section 15 of the 1933 Act controls ("controlling
person") the Sub-Adviser (all of such persons being referred to as "Sub-Adviser
Indemnified Persons") against any and all losses, claims, damages, liabilities,
or litigation (including legal and other expenses) to which a Sub-Adviser
Indemnified Person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, the Internal Revenue Code, under any other statute, at common law
or otherwise, arising out of the Adviser's responsibilities to the Company which
(1) may be based upon any misfeasance, malfeasance, or nonfeasance by the
Adviser, any of its employees or representatives or any affiliate of or any
person acting on behalf of the Adviser or (2) may be based upon any untrue
statement or alleged untrue statement of a material fact supplied by, or which
is the responsibility of, the Adviser and contained in the Registration
Statement or prospectus covering shares of the Company or a Series, or any
amendment thereof or any supplement thereto, or the omission or alleged omission
to state therein a material fact known or which should have been known to the
Adviser and was required to be stated therein or necessary to make the
statements therein not misleading, unless such statement or omission was made in
reliance upon information furnished to the Adviser or the Company or to any
affiliated person of the Adviser by a Sub-Adviser Indemnified Person; provided
however, that in no case shall the indemnity in favor of the Sub-Adviser
Indemnified Person be deemed to protect such person against any liability to
which any such person 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 obligations and duties under this
Agreement.
(b) Notwithstanding Section 14 of this Agreement, the
Sub-Adviser agrees to indemnify and hold harmless the Adviser, any affiliated
person of the Adviser, and each person, if any, who, within the meaning of
Section 15 of the 1933 Act, controls ("controlling person") the Adviser (all of
such persons being referred to as "Adviser Indemnified Persons") against any and
all losses, claims, damages, liabilities, or litigation (including legal and
other expenses) to which a Adviser Indemnified Person may become subject under
the 1933 Act, 1940 Act, the Advisers Act, the Internal Revenue Code, under any
other statute, at common law or otherwise, arising out of the Sub-Adviser's
responsibilities as Sub-Adviser of the Series which (1) may be based upon any
misfeasance, malfeasance, or nonfeasance by the Sub-Adviser, any of its
employees or representatives, or any affiliate of or any person acting on behalf
of the Sub-Adviser, (2) may be based upon a failure to comply with Section 2,
Paragraph (a) of this Agreement, or (3) may be based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or prospectus covering the shares of the Company or a Series, or any
amendment or supplement thereto, or the omission or alleged omission to state
therein a material fact known or which should have been known to the Sub-Adviser
and was required to be stated therein or necessary to make the statements
therein not misleading, if such a statement or omission was made in reliance
upon information furnished to the Adviser, the Company, or any affiliated person
of the Adviser or Company by the Sub-Adviser or any affiliated person of the
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Sub-Adviser; provided, however, that in no case shall the indemnity in favor of
a Adviser Indemnified Person be deemed to protect such person against any
liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence in the performance of its
duties, or by reason of its reckless disregard of its obligations and duties
under this Agreement.
(c) The Adviser shall not be liable under Paragraph (a) of
this Section 15 with respect to any claim made against a Sub-Adviser Indemnified
Person unless such Sub-Adviser Indemnified Person shall have notified the
Adviser in writing within a reasonable time after the summons, notice, or other
first legal process or notice giving information of the nature of the claim
shall have been served upon such Sub-Adviser Indemnified Person (or after such
Sub- Adviser Indemnified Person shall have received notice of such service on
any designated agent), but failure to notify the Adviser of any such claim shall
not relieve the Adviser from any liability which it may have to the Sub-Adviser
Indemnified Person against whom such action is brought otherwise than on account
of this Section 15. In case any such action is brought against the Sub-Adviser
Indemnified Person, the Adviser will be entitled to participate, at its own
expense, in the defense thereof or, after notice to the Sub-Adviser Indemnified
Person, to assume the defense thereof, with counsel satisfactory to the
Sub-Adviser Indemnified Person. If the Adviser assumes the defense of any such
action and the selection of counsel by the Adviser to represent both the Adviser
and the Sub-Adviser Indemnified Person would result in a conflict of interests
and therefore, would not, in the reasonable judgment of the Sub-Adviser
Indemnified Person, adequately represent the interests of the Sub-Adviser
Indemnified Person, the Adviser will, at its own expense, assume the defense
with counsel to the Adviser and, also at its own expense, with separate counsel
to the Sub-Adviser Indemnified Person, which counsel shall be satisfactory to
the Adviser and to the Sub-Adviser Indemnified Person. The Sub-Adviser
Indemnified Person shall bear the fees and expenses of any additional counsel
retained by it, and the Adviser shall not be liable to the Sub-Adviser
Indemnified Person under this Agreement for any legal or other expenses
subsequently incurred by the Sub-Adviser Indemnified Person independently in
connection with the defense thereof other than reasonable costs of
investigation. The Adviser shall not have the right to compromise on or settle
the litigation without the prior written consent of the Sub-Adviser Indemnified
Person if the compromise or settlement results, or may result in a finding of
wrongdoing on the part of the Sub-Adviser Indemnified Person.
(d) The Sub-Adviser shall not be liable under Paragraph (b) of
this Section 15 with respect to any claim made against a Adviser Indemnified
Person unless such Adviser Indemnified Person shall have notified the
Sub-Adviser in writing within a reasonable time after the summons, notice, or
other first legal process or notice giving information of the nature of the
claim shall have been served upon such Adviser Indemnified Person (or after such
Adviser Indemnified Person shall have received notice of such service on any
designated agent), but failure to notify the Sub-Adviser of any such claim shall
not relieve the Sub-Adviser from any liability which it may have to the Adviser
Indemnified Person against whom such action is brought otherwise than on account
of this Section 15. In case any such action is brought against the Adviser
Indemnified Person, the Sub-Adviser will be entitled to participate, at its own
expense, in
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the defense thereof or, after notice to the Adviser Indemnified Person, to
assume the defense thereof, with counsel satisfactory to the Adviser Indemnified
Person. If the Sub-Adviser assumes the defense of any such action and the
selection of counsel by the Sub-Adviser to represent both the Sub-Adviser and
the Adviser Indemnified Person would result in a conflict of interests and
therefore, would not, in the reasonable judgment of the Adviser Indemnified
Person, adequately represent the interests of the Adviser Indemnified Person,
the Sub-Adviser will, at its own expense, assume the defense with counsel to the
Sub-Adviser and, also at its own expense, with separate counsel to the Adviser
Indemnified Person which counsel shall be satisfactory to the Sub-Adviser and
to the Adviser Indemnified Person. The Adviser Indemnified Person shall bear the
fees and expenses of any additional counsel retained by it, and the Sub-Adviser
shall not be liable to the Adviser Indemnified Person under this Agreement for
any legal or other expenses subsequently incurred by the Adviser Indemnified
Person independently in connection with the defense thereof other than
reasonable costs of investigation. The Sub-Adviser shall not have the right to
compromise on or settle the litigation without the prior written consent of the
Adviser Indemnified Person if the compromise or settlement results, or may
result in a finding of wrongdoing on the part of the Adviser Indemnified Person.
16. Duration and Termination. This Agreement shall become
effective on the date first indicated above. Unless terminated as provided
herein, the Agreement shall remain in full force and effect for two (2) years
from the date first indicated above and continue on an annual basis thereafter
with respect to the Series; provided that such annual continuance is
specifically approved each year by (a) the vote of a majority of the entire
Board of Directors of the Company, or by the vote of a majority of the
outstanding voting securities (as defined in the ▇▇▇▇ ▇▇▇) of the Series, and
(b) the vote of a majority of those Directors who are not parties to this
Agreement or interested persons (as such term is defined in the ▇▇▇▇ ▇▇▇) of any
such party to this Agreement cast in person at a meeting called for the purpose
of voting on such approval. The Sub-Adviser shall not provide any services for a
Series or receive any fees on account of such Series with respect to which this
Agreement is not approved as described in the preceding sentence. However, any
approval of this Agreement by the holders of a majority of the outstanding
shares (as defined in the ▇▇▇▇ ▇▇▇) of a Series shall be effective to continue
this Agreement with respect to the Series notwithstanding (i) that this
Agreement has not been approved by the holders of a majority of the outstanding
shares of any other Series or (ii) that this agreement has not been approved by
the vote of a majority of the outstanding shares of the Company, unless such
approval shall be required by any other applicable law or otherwise.
Notwithstanding the foregoing, this Agreement may be terminated for each or any
Series hereunder: (a) by the Adviser at any time without penalty, upon sixty
(60) days' written notice to the Sub-Adviser and the Company, (b) at any time
without payment of any penalty by the Company, upon the vote of a majority of
the Company's Board of Directors or a majority of the outstanding voting
securities of each Series, upon sixty (60) days' written notice to the Adviser
and the Sub-Adviser, or (c) by the Sub-Adviser at any time without penalty, upon
sixty (60) days' written notice to the Adviser and the Company. In the event of
termination for any reason, all records of each Series for which the Agreement
is terminated shall promptly be returned to the Adviser or the Company, free
from any claim or retention of rights in such record by the Sub-
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Adviser, although the Sub-Adviser may, at its own expense, make and retain a
copy of such records. The Agreement shall automatically terminate in the event
of its assignment (as such term is described in the 1940 Act). In the event this
Agreement is terminated or is not approved in the manner described above, the
Sections or Paragraphs numbered 2(f), 9, 10, 11, 14, 15, and 18 of this
Agreement shall remain in effect, as well as any applicable provision of this
Paragraph numbered 16.
17. Amendments. No provision of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought, and no amendment of this Agreement shall be effective
until approved by an affirmative vote of (i) the holders of a majority of the
outstanding voting securities of the Series, and (ii) the Directors of the
Company, including a majority of the Directors of the Company who are not
interested persons of any party to this Agreement, cast in person at a meeting
called for the purpose of voting on such approval, if such approval is required
by applicable law.
18. Use of Name.
(a) It is understood that the name MainStay or any derivative
thereof or logo associated with that name is the valuable property of the
Adviser and/or its affiliates, and that the Sub-Adviser has the right to use
such name (or derivative or logo) only with the approval of the Adviser and only
so long as the Adviser is Adviser to the Company and/or the Series. Upon
termination of the Investment Advisory Agreement between the Company and the
Adviser, the Sub-Adviser shall forthwith cease to use such name (or derivative
or logo).
(b) It is understood that the name ______________________or
any derivative thereof or logo associated with that name is the valuable
property of the Sub-Adviser and its affiliates and that the Company and/or the
Series have the right to use such name (or derivative or logo) in offering and
marketing materials of the Company with the approval of the Sub-Adviser and for
so long as the Sub-Adviser is a Sub-Adviser to the Company and/or the Series
with such approval not to be unreasonably withheld. In the event the Sub-Adviser
does not respond within (5) business days, such material shall be deemed
approved . Upon termination of this Agreement between the Company, the Adviser,
and the Sub-Adviser, the Company shall forthwith cease to use such name (or
derivative or logo).
19. The obligations of this Agreement shall be binding upon
the assets and property of the Company and shall not be binding upon any
Director, officer, or shareholder of the Company individually.
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20. Miscellaneous.
(a) This Agreement shall be governed by the laws of the State
of New York, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Advisers Act or rules or orders of the SEC
thereunder. The term "affiliate" or "affiliated person" as used in this
Agreement shall mean "affiliated person" as defined in Section 2(a)(3) of the
▇▇▇▇ ▇▇▇.
(b) The captions of this Agreement are included for
convenience only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
(c) To the extent permitted under Section 16 of this
Agreement, this Agreement may only be assigned by any party with the prior
written consent of the other parties.
(d) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby, and to this extent, the provisions of
this Agreement shall be deemed to be severable.
(e) Nothing herein shall be construed as constituting the
Sub-Adviser as an agent of the Adviser, or constituting the Adviser as an agent
of the Sub-Adviser.
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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.
MainStay VP Series Fund, Inc.
________________________ By:________________________________
Attest
________________________ ______________________________
Title Title
New York Life Insurance Company
________________________ By:________________________________
Attest
________________________ ______________________________
Title Title
The Dreyfus Corporation
________________________ By:________________________________
Attest
________________________ ______________________________
Title Title
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SCHEDULE A
The Series of MainStay VP Series Fund, Inc., as described in Section 1
of the attached Sub-Advisory Agreement, to which The Dreyfus Corporation shall
act as Sub-Adviser are as follows:
Dreyfus Large Company Value Portfolio
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SCHEDULE B
COMPENSATION FOR SERVICES TO SERIES
For the services provided by The Dreyfus Corporation to the following
Series of MainStay VP Series Fund, Inc., pursuant to the attached Sub-Advisory
Agreement, the Adviser will pay the Sub-Adviser a fee, payable monthly, based on
the average daily net assets of the Series at the following annual rates of the
average daily net assets of the Series:
Rate
.50% on assets up to $100 million
.45% on assets form $100 million to $250 million
.40% on assets over $250 million
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