AGREEMENT AND PLAN OF REORGANIZATION MAINSTAY VP MID CAP VALUE PORTFOLIO MAINSTAY VP ICAP SELECT EQUITY PORTFOLIO
Exhibit
4a
MAINSTAY
VP MID CAP VALUE PORTFOLIO
MAINSTAY
VP ICAP SELECT EQUITY PORTFOLIO
The Board
of Directors of MainStay VP Series Fund, Inc., a Maryland corporation (the
“Board”), deems it advisable that MainStay VP ICAP Select Equity Portfolio (the
“Acquiring Portfolio”), a series of MainStay VP Series Fund, Inc., and MainStay
VP Mid Cap Value Portfolio (the “Acquired Portfolio”), also a series of MainStay
VP Series Fund, Inc., engage in the reorganization described below.
This
agreement is intended to be and is adopted as a plan of reorganization and
liquidation (the “Plan”) within the meaning of Section 368(a)(1) of the United
States Internal Revenue Code of 1986, as amended (the “Code”). The
reorganization and liquidation will consist of the transfer of all of the assets
of the Acquired Portfolio to the Acquiring Portfolio in exchange solely for
Initial and Service Class shares of common stock of the Acquiring Portfolio
(“Acquiring Portfolio Shares”), the assumption by the Acquiring Portfolio of all
liabilities of the Acquired Portfolio, and the distribution of the Acquiring
Portfolio Shares to the shareholders of the Acquired Portfolio in complete
liquidation of the Acquired Portfolio, as provided herein (“Reorganization”),
all upon the terms and conditions hereinafter set forth in this
Plan.
WHEREAS,
the Acquired Portfolio and the Acquiring Portfolio are each a series of an
open-end, registered investment company of the management type and the Acquired
Portfolio owns securities that generally are assets of the character in which
the Acquiring Portfolio is permitted to invest;
WHEREAS,
the Board of Directors of MainStay VP Series Fund, Inc. has determined, with
respect to the Acquiring Portfolio, that the exchange of all of the assets of
the Acquired Portfolio for Acquiring Portfolio Shares and the assumption of all
liabilities of the Acquired Portfolio by the Acquiring Portfolio is in the best
interests of the Acquiring Portfolio and its shareholders and that the interests
of the existing shareholders of the Acquiring Portfolio would not be diluted as
a result of this transaction; and
WHEREAS,
the Board of Directors of MainStay VP Series Fund, Inc. has also determined,
with respect to the Acquired Portfolio, that the exchange of all of the assets
of the Acquired Portfolio for Acquiring Portfolio Shares and the assumption of
all liabilities of the Acquired Portfolio by the Acquiring Portfolio is in the
best interests of the Acquired Portfolio and its shareholders and that the
interests of the existing shareholders of the Acquired Portfolio would not be
diluted as a result of this transaction;
NOW,
THEREFORE, in consideration of the premises and of the covenants and agreements
hereinafter set forth, MainStay VP Series Fund, Inc., on behalf of the Acquiring
Portfolio and the Acquired Portfolio separately, hereby covenants and agrees as
follows:
|
1.
|
Transfer
of Assets of the Acquired Portfolio to the Acquiring Portfolio in Exchange
for Acquiring Portfolio Shares, the Assumption of all of the Acquired
Portfolio’s Liabilities and the Liquidation of the Acquired
Portfolio
|
1.1 Subject
to the requisite approval of the Acquired Portfolio’s shareholders and the other
terms and conditions herein set forth and on the basis of the representations
and warranties contained herein, the Acquired Portfolio agrees to transfer all
of its respective assets, as set forth in paragraph 1.2, to the Acquiring
Portfolio, and the Acquiring Portfolio agrees in exchange therefor: (i) to
deliver to the Acquired Portfolio the number of full and fractional Initial and
Service Class Acquiring Portfolio Shares, determined by dividing the value of
the Acquired Portfolio’s net assets, computed in the manner and as of the time
and date set forth in paragraph 2.1, by the net asset value of one Acquiring
Portfolio Share of the corresponding class, computed in the manner and as of the
time and date set forth in paragraph 2.2; and (ii) to assume all
liabilities of the Acquired Portfolio, as set forth in paragraph
1.3. Such transactions shall take place on the date of the closing
provided for in paragraph 3.1 (“Closing Date”).
1.2 The
assets of the Acquired Portfolio to be acquired by the Acquiring Portfolio shall
consist of all assets and property, including, without limitation, all cash,
securities, commodities and futures interests and dividends or interests
receivable that are owned by the Acquired Portfolio and any deferred or prepaid
expenses shown as an asset on the books of the Acquired Portfolio on the Closing
Date (collectively, “Assets”).
1.3 The
Acquired Portfolio will endeavor to discharge all of its liabilities and
obligations prior to the Closing Date. The Acquiring Portfolio shall
also assume all of the liabilities of the Acquired Portfolio, whether accrued or
contingent, known or unknown, existing at the Valuation Date as defined in
paragraph 2.1 (collectively, “Liabilities”). On or as soon as
practicable prior to the Closing Date, the Acquired Portfolio will declare and
pay to its shareholders of record one or more dividends and/or other
distributions so that it will have distributed substantially all (and in no
event less than 98%) of its investment company taxable income (computed without
regard to any deduction for dividends paid) and realized net capital gain, if
any, for the current taxable year through the Closing Date.
1.4 Immediately
after the transfer of assets provided for in paragraph 1.1, the Acquired
Portfolio will distribute to its respective shareholders of record with respect
to each class of shares, determined as of immediately after the close of
business on the Closing Date (“Acquired Portfolio Shareholders”), on a pro rata
basis within that class, the Acquiring Portfolio Shares of the corresponding
class received by the Acquired Portfolio pursuant to paragraph 1.1, and will
completely liquidate. Such distribution and liquidation will be
accomplished, with respect to each class of the Acquired Portfolio’s shares, by
the transfer of the Acquiring Portfolio Shares then credited to the account of
the Acquired Portfolio on the books of the Acquiring Portfolio to open accounts
on the share records of the Acquiring Portfolio in the names of the Acquired
Portfolio Shareholders. The aggregate net asset value of Initial and
Service Class Acquiring Portfolio Shares to be so credited to Initial and
Service Class Acquired Portfolio Shareholders, respectively, shall, with respect
to each class, be equal to the aggregate net asset value of the shares of common
stock of the Acquired Portfolio (“Acquired Portfolio Shares”) of the
corresponding class owned by Acquired Portfolio Shareholders on the Closing
Date. All issued and outstanding shares of the Acquired Portfolio
will simultaneously be redeemed and canceled on the books of the Acquired
Portfolio, although share certificates representing interests in Initial and
Service Class shares of the Acquired Portfolio will represent a number of the
corresponding class of Acquiring Portfolio Shares after the Closing Date, as
determined in accordance with paragraph 2.3. The Acquiring Portfolio
shall not issue certificates representing the Initial and Service Class
Acquiring Portfolio Shares in connection with such exchange.
1.5 Ownership
of Acquiring Portfolio Shares will be shown on the books of the Acquiring
Portfolio. Shares of the Acquiring Portfolio will be issued in the
manner described in the Acquiring Portfolio’s current prospectus.
1.6 Any
reporting responsibility of the Acquired Portfolio, including, but not limited
to, the responsibility for filing regulatory reports, tax returns, or other
documents with the Securities and Exchange Commission (“SEC”), any state
securities commission, and any Federal, state or local tax authorities or any
other relevant regulatory authority, is and shall remain the responsibility of
the Acquired Portfolio up to and including the Closing Date.
|
2.
|
Valuation
|
2.1 The
value of the Assets shall be the value of such Assets computed as of immediately
after the close of business of the New York Stock Exchange and after the
declaration of any dividends on the Closing Date (such time and date being
hereinafter called the “Valuation Date”), using the valuation procedures set
forth in the then-current prospectus and statement of additional information
with respect to the Acquired Portfolio, and valuation procedures established by
the Acquired Portfolio’s Board.
2.2 The
net asset value of an Acquiring Portfolio Share shall be the net asset value per
share computed with respect to that class as of the Valuation Date, using the
valuation procedures set forth in the Acquiring Portfolio’s then-current
prospectus and statement of additional information, each as may be supplemented,
and valuation procedures established by the Acquiring Portfolio’s
Board.
2.3 The
number of the Initial and Service Class Acquiring Portfolio Shares to be issued
(including fractional shares, if any) in exchange for the Acquired Portfolio’s
Assets shall be determined with respect to each such class by dividing the value
of the net assets with respect to the Initial and Service Class Acquired
Portfolio Shares, as the case may be, determined using the same valuation
procedures referred to in paragraph 2.1, by the net asset value of an Acquiring
Portfolio Share of the same class, determined in accordance with paragraph
2.2.
2.4 All
computations of value shall be made by New York Life Investment Management LLC
(“New York Life Investments”) and shall be subject to review by each Portfolio’s
valuation committee and by each Portfolio’s independent
accountants.
|
3.
|
Closing
and Closing Date
|
3.1 The
Closing Date shall be November 20, 2009 or such other date as the parties may
agree. All acts taking place at the closing of the transactions
provided for in this Plan (“Closing”) shall be deemed to take place
simultaneously as of immediately after the close of business on the Closing Date
unless otherwise agreed to by the parties. The close of business on
the Closing Date shall be as of 4:00 p.m. Eastern time. The Closing
shall be held at the offices of the Portfolios or at such other time and/or
place as the parties may agree.
3.2 MainStay
VP Series Fund, Inc. shall direct State Street Bank and Trust Company as
custodian for the Acquired Portfolio (“Custodian”), to deliver, at the Closing,
a certificate of an authorized officer stating that the Assets shall have been
delivered in proper form to the Acquiring Portfolio within two business days
prior to or on the Closing Date. The Acquired Portfolio’s portfolio
securities represented by a certificate or other written instrument shall be
presented by the Custodian to those persons at the Custodian who have primary
responsibility for the safekeeping of the assets of the Acquiring Portfolio,
which Custodian also serves as the custodian for the Acquiring
Portfolio. Such presentation shall be made for examination no later
than five business days preceding the Closing Date, and shall be transferred and
delivered by the Acquired Portfolio as of the Closing Date for the account of
the Acquiring Portfolio duly endorsed in proper form for transfer in such
condition as to constitute good delivery thereof. The Custodian shall
deliver to those persons at the Custodian who have primary responsibility for
the safekeeping of the assets of the Acquiring Portfolio as of the Closing Date
by book entry, in accordance with the customary practices of the Custodian and
of each securities depository, as defined in Rule 17f-4 under the Investment
Company Act of 1940, as amended (“1940 Act”), in which the Acquired Portfolio’s
Assets are deposited, the Acquired Portfolio’s Assets deposited with such
depositories. The cash to be transferred by the Acquired Portfolio
shall be delivered by wire transfer of Federal funds on the Closing
Date.
3.3 MainStay
VP Series Fund, Inc. shall direct New York Life Insurance and Annuity
Corporation (“NYLIAC”), in its capacity as agent for the Acquired Portfolio, to
deliver at the Closing a certificate of an authorized officer stating that its
records contain the names and addresses of the Acquired Portfolio Shareholders
and the number and percentage ownership of outstanding Initial and Service Class
shares owned by each such shareholder immediately prior to the
Closing. The Acquiring Portfolio shall issue and deliver to the
Secretary of the Acquired Portfolio prior to the Closing Date a confirmation
evidencing that the appropriate number of Acquiring Portfolio Shares will be
credited to the Acquired Portfolio on the Closing Date, or provide other
evidence satisfactory to the Acquired Portfolio as of the Closing Date that such
Acquiring Portfolio Shares have been credited to the Acquired Portfolio’s
accounts on the books of the Acquiring Portfolio. At the Closing each
party shall deliver to the other such bills of sale, checks, assignments, share
certificates, if any, receipts or other documents as such other party or its
counsel may reasonably request.
3.4 In
the event that on the Valuation Date (a) the New York Stock Exchange or
another primary trading market for portfolio securities of the Acquiring
Portfolio or the Acquired Portfolio (each, an “Exchange”) shall be closed to
trading or trading thereupon shall be restricted, or (b) trading or the
reporting of trading on such Exchange or elsewhere shall be disrupted so that,
in the judgment of the Boards, accurate appraisal of the value of the net assets
of the Acquired Portfolio or the Acquiring Portfolio is impracticable, the
Closing Date shall be postponed until the first business day after the day when
trading shall have been fully resumed and reporting shall have been
restored.
4. Representations
and Warranties
4.1 Except
as has been fully disclosed to the Acquiring Portfolio in a written instrument
executed by an officer of MainStay VP Series Fund, Inc., MainStay VP Series
Fund, Inc., on behalf of the Acquired Portfolio, represents and warrants to the
Acquiring Portfolio, as follows:
|
|
(a)
|
The
Acquired Portfolio is duly organized as a series of MainStay VP Series
Fund, Inc., which is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maryland, with power under
MainStay VP Series Fund, Inc.’s Articles of Incorporation and By-Laws, as
amended from time to time, to own all of its Assets and to carry on its
business as it is now being conducted;
and
|
|
|
(b)
|
MainStay
VP Series Fund, Inc. is a registered investment company classified as a
management company of the open-end type, and its registration with the SEC
as an investment company under the 1940 Act, and the registration of
Initial and Service Class Acquired Portfolio Shares under the Securities
Act of 1933, as amended (“1933 Act”), is in full force and
effect;
|
|
|
(c)
|
No
consent, approval, authorization, or order of any court or governmental
authority is required for the consummation by the Acquired Portfolio of
the transactions contemplated herein, except such as have been obtained
under the 1933 Act, the Securities Exchange Act of 1934, as amended (“1934
Act”), and the 1940 Act, and such as may be required by state securities
laws;
|
|
|
(d)
|
The
current prospectus and statement of additional information of the Acquired
Portfolio and each prospectus and statement of additional information of
the Acquired Portfolio used at all times prior to the date of this Plan
conforms or conformed at the time of its use in all material respects to
the applicable requirements of the 1933 Act and the 1940 Act and the rules
and regulations of the SEC thereunder and does not or did not at the time
of its use include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not materially
misleading;
|
|
|
(e)
|
On
the Closing Date, MainStay VP Series Fund, Inc., on behalf of the Acquired
Portfolio, will have good and marketable title to the Assets and full
right, power, and authority to sell, assign, transfer and deliver such
Assets hereunder free of any liens or other encumbrances, and upon
delivery and payment for such Assets, MainStay VP Series Fund, Inc., on
behalf of the Acquiring Portfolio, will acquire good and marketable title
thereto, subject to no restrictions on the full transfer thereof,
including such restrictions as might arise under the 1933 Act, other than
as disclosed to the Acquiring
Portfolio;
|
|
|
(f)
|
MainStay
VP Series Fund, Inc. is not engaged currently, and the execution, delivery
and performance of this Plan will not result, in (i) a material
violation of its Articles of Incorporation or By-Laws, or of any
agreement, indenture, instrument, contract, lease or other undertaking to
which MainStay VP Series Fund, Inc., on behalf of the Acquired Portfolio,
is a party or by which it is bound, or (ii) the acceleration of any
obligation, or the imposition of any penalty, under any agreement,
indenture, instrument, contract, lease, judgment or decree to which
MainStay VP Series Fund, Inc., on behalf of the Acquired Portfolio, is a
party or by which it is bound;
|
|
|
(g)
|
All
material contracts or other commitments of the Acquired Portfolio (other
than this Plan and certain investment contracts, including options,
futures, and forward contracts) will terminate without liability to the
Acquired Portfolio on or prior to the Closing
Date;
|
|
|
(h)
|
Except
as otherwise disclosed in writing to and accepted by MainStay VP Series
Fund, Inc., on behalf of the Acquiring Portfolio, no litigation or
administrative proceeding or investigation of or before any court or
governmental body is presently pending or, to its knowledge, threatened
against the Acquired Portfolio or any of its properties or assets that, if
adversely determined, would materially and adversely affect its financial
condition or the conduct of its business. MainStay VP Series
Fund, Inc., on behalf of the Acquired Portfolio, knows of no facts which
might form the basis for the institution of such proceedings and is not a
party to or subject to the provisions of any order, decree or judgment of
any court or governmental body which materially and adversely affects its
business or its ability to consummate the transactions herein
contemplated;
|
|
|
(i)
|
The
Statement of Assets and Liabilities, Statements of Operations and Changes
in Net Assets, and Schedule of Investments of the Acquired Portfolio dated
December 31, 2008 have been audited by PricewaterhouseCoopers LLP (“PwC”),
independent accountants, and are in accordance with accounting principles
generally accepted in the United States of America (“GAAP”) consistently
applied, and such statements (copies of which have been furnished to the
Acquiring Portfolio) present fairly, in all material respects, the
financial condition of the Acquired Portfolio as of such date in
accordance with GAAP, and there are no known contingent liabilities of the
Acquired Portfolio required to be reflected on a balance sheet (including
the notes thereto) in accordance with GAAP as of such date not disclosed
therein;
|
|
|
(j)
|
Since
December 31, 2008, there has not been any material adverse change in the
Acquired Portfolio’s financial condition, assets, liabilities or business,
other than changes occurring in the ordinary course of business, or any
incurrence by the Acquired Portfolio of indebtedness maturing more than
one year from the date such indebtedness was incurred, except as otherwise
disclosed to and accepted by the Acquiring Portfolio. For the
purposes of this subparagraph (j), a decline in net asset value per share
of Acquired Portfolio Shares due to declines in market values of
securities held by the Acquired Portfolio, the discharge of the Acquired
Portfolio’s liabilities, or the redemption of the Acquired Portfolio’s
shares by shareholders of the Acquired Portfolio shall not constitute a
material adverse change;
|
|
|
(k)
|
On
the Closing Date, all Federal and other tax returns, dividend reporting
forms, and other tax-related reports of the Acquired Portfolio required by
law to have been filed by such date (including any extensions) shall have
been filed and are or will be correct in all material respects, and all
Federal and other taxes shown as due or required to be shown as due on
said returns and reports shall have been paid or provision shall have been
made for the payment thereof, and to the best of the Acquired Portfolio’s
knowledge, no such return is currently under audit and no assessment has
been asserted with respect to such
returns;
|
|
|
(l)
|
For
each taxable year of its operation (including the taxable year ending on
the Closing Date), the Acquired Portfolio has met (or will meet) the
requirements of Subchapter M of the Code for qualification as a regulated
investment company, has been (or will be) eligible to and has computed (or
will compute) its Federal income tax under Section 852 of the Code, and
will have distributed all of its investment company taxable income and net
capital gain (as defined in the Code) that has accrued through the Closing
Date, and before the Closing Date will have declared dividends sufficient
to distribute all of its investment company taxable income and net capital
gain for the period ending on the Closing Date, and has met the
diversification and other requirements of Section 817(h) of the Code
and Treasury Regulation Section 1.817-5
thereunder;
|
|
|
(m)
|
All
issued and outstanding shares of the Acquired Portfolio are, and on the
Closing Date will be, duly and validly issued and outstanding, fully paid
and non-assessable by MainStay VP Series Fund, Inc. and have been offered
and sold in every state and the District of Columbia in compliance in all
material respects with applicable registration requirements of the 1933
Act and state securities laws. All of the issued and
outstanding shares of the Acquired Portfolio will, at the time of Closing,
be held by the persons and in the amounts set forth in the records of
NYLIAC, on behalf of the Acquired Portfolio, as provided in paragraph
3.3. The Acquired Portfolio does not have outstanding any
options, warrants or other rights to subscribe for or purchase any of the
shares of the Acquired Portfolio, nor is there outstanding any security
convertible into any of the Acquired Portfolio’s
shares;
|
|
|
(n)
|
The
execution, delivery and performance of this Plan will have been duly
authorized prior to the Closing Date by all necessary action, if any, on
the part of the Board of Directors, on behalf of the Acquired Portfolio,
and, subject to the approval of the shareholders of the Acquired
Portfolio, this Plan will constitute a valid and binding obligation of
MainStay VP Series Fund, Inc., on behalf of the Acquired Portfolio,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws relating
to or affecting creditors’ rights and to general equity
principles;
|
|
|
(o)
|
The
information to be furnished by the Acquired Portfolio for use in
registration statements, proxy materials and other documents filed or to
be filed with any Federal, state or local regulatory authority (including
the Financial Industry Regulatory Authority), which may be necessary in
connection with the transactions contemplated hereby, shall be accurate
and complete in all material respects and shall comply in all material
respects with Federal securities and other laws and regulations thereunder
applicable thereto; and
|
|
|
(p)
|
The
combined proxy statement and prospectus (“Proxy Statement”) to be included
in the Registration Statement referred to in paragraph 5.6, insofar as it
relates to the Acquired Portfolio, will, on the effective date of the
Registration Statement and on the Closing Date (i) not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which such statements were made, not
materially misleading, provided, however, that the representations and
warranties of this subparagraph (p) shall not apply to statements in or
omissions from the Proxy Statement and the Registration Statement made in
reliance upon and in conformity with information that was furnished by the
Acquiring Portfolio for use therein, and (ii) comply in all material
respects with the provisions of the 1933 Act, the 1934 Act, and the 1940
Act and the rules and regulations
thereunder.
|
4.2 Except
as has been fully disclosed to the Acquired Portfolio in a written instrument
executed by an officer of MainStay VP Series Fund, Inc., MainStay VP Series
Fund, Inc., on behalf of the Acquiring Portfolio, represents and warrants to the
Acquired Portfolio, as follows:
|
|
(a)
|
The
Acquiring Portfolio is duly organized as series of MainStay VP Series
Fund, Inc., which is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Maryland with power under
its Articles of Incorporation and By-Laws to own all of its properties and
assets and to carry on its business as it is now being
conducted;
|
|
|
(b)
|
MainStay
VP Series Fund, Inc. is a registered investment company classified as a
management company of the open-end type, and its registration with the
Commission as an investment company under the 1940 Act and the
registration of the Initial and Service Class Acquiring Portfolio Shares
under the 1933 Act, is in full force and
effect;
|
|
|
(c)
|
No
consent, approval, authorization, or order of any court or governmental
authority is required for the consummation by the Acquiring Portfolio of
the transactions contemplated herein, except such as have been obtained
under the 1933 Act, the 1934 Act and the 1940 Act and such as may be
required by state securities laws;
|
|
|
(d)
|
The
current prospectus and statement of additional information of the
Acquiring Portfolio and each prospectus and statement of additional
information of the Acquiring Portfolio used at all times prior to the date
of this Plan conforms or conformed at the time of its use in all material
respects to the applicable requirements of the 1933 Act and the 1940 Act
and the rules and regulations of the Commission thereunder and does not or
did not at the time of its use include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not materially
misleading;
|
|
|
(e)
|
On
the Closing Date, MainStay VP Series Fund, Inc., on behalf of the
Acquiring Portfolio, will have good and marketable title to the Acquiring
Portfolio’s assets, free of any liens or other encumbrances, except those
liens or encumbrances as to which the Acquired Portfolio has received
notice and necessary documentation at or prior to the
Closing;
|
|
|
(f)
|
The
Acquiring Portfolio is not engaged currently, and the execution, delivery
and performance of this Plan will not result, in (i) a material
violation of MainStay VP Series Fund, Inc.’s Articles of Incorporation or
By-Laws or of any agreement, indenture, instrument, contract, lease or
other undertaking to which MainStay VP Series Fund, Inc., on behalf of the
Acquiring Portfolio, is a party or by which it is bound, or (ii) the
acceleration of any obligation, or the imposition of any penalty, under
any agreement, indenture, instrument, contract, lease, judgment or decree
to which MainStay VP Series Fund, Inc., on behalf of the Acquiring
Portfolio, is a party or by which it is
bound;
|
|
|
(g)
|
Except
as otherwise disclosed in writing to and accepted by MainStay VP Series
Fund, Inc., on behalf of the Acquired Portfolio, no litigation or
administrative proceeding or investigation of or before any court or
governmental body is presently pending or, to the Acquiring Portfolio’s
knowledge, threatened against MainStay VP Series Fund, Inc., on behalf of
the Acquiring Portfolio, or any of the Acquiring Portfolio’s properties or
assets that, if adversely determined, would materially and adversely
affect the Acquiring Portfolio’s financial condition or the conduct of its
business. MainStay VP Series Fund, Inc., on behalf of the
Acquiring Portfolio, knows of no facts which might form the basis for the
institution of such proceedings and is not a party to or subject to the
provisions of any order, decree or judgment of any court or governmental
body which materially and adversely affects the Acquiring Portfolio’s
business or its ability to consummate the transactions herein
contemplated;
|
|
|
(h)
|
The
Statement of Assets and Liabilities, Statements of Operations and Changes
in Net Assets and Schedule of Investments of the Acquiring Portfolio dated
December 31, 2008 have been audited by PwC, independent accountants, and
are in accordance with GAAP consistently applied, and such statements
(copies of which have been furnished to the Acquired Portfolio) present
fairly, in all material respects, the financial condition of the Acquiring
Portfolio as of such date in accordance with GAAP, and there are no known
contingent liabilities of the Acquiring Portfolio required to be reflected
on a balance sheet (including the notes thereto) in accordance with GAAP
as of such date not disclosed
therein;
|
|
|
(i)
|
Since
December 31, 2008, there has not been any material adverse change in the
Acquiring Portfolio’s financial condition, assets, liabilities or
business, other than changes occurring in the ordinary course of business,
or any incurrence by the Acquiring Portfolio of indebtedness maturing more
than one year from the date such indebtedness was incurred, except as
otherwise disclosed to and accepted by the Acquired
Portfolio. For purposes of this subparagraph (i), a decline in
net asset value per share of the Acquiring Portfolio’s shares due to
declines in market values of securities held by the Acquiring Portfolio,
the discharge of the Acquiring Portfolio’s liabilities, or the redemption
of the Acquiring Portfolio’s shares by shareholders of the Acquiring
Portfolio, shall not constitute a material adverse
change;
|
|
|
(j)
|
On
the Closing Date, all Federal and other tax returns, dividend reporting
forms, and other tax-related reports of the Acquiring Portfolio required
by law to have been filed by such date (including any extensions) shall
have been filed and are or will be correct in all material respects, and
all Federal and other taxes shown as due or required to be shown as due on
said returns and reports shall have been paid or provision shall have been
made for the payment thereof, and to the best of the Acquiring Portfolio’s
knowledge no such return is currently under audit and no assessment has
been asserted with respect to such
returns;
|
|
|
(k)
|
For
each taxable year of its operation (including the taxable year that
includes the Closing Date), the Acquiring Portfolio has met (or will meet)
the requirements of Subchapter M of the Code for qualification as a
regulated investment company, has been eligible to (or will be eligible
to) and has computed (or will compute) its Federal income tax under
Section 852 of the Code, and has distributed all of its investment company
taxable income and net capital gain (as defined in the Code) for periods
ending prior to the Closing Date, and has met the diversification and
other requirements of Section 817(h) of the Code and Treasury
Regulation Section 1.817-5
thereunder;
|
|
|
(l)
|
All
issued and outstanding Acquiring Portfolio Shares are, and on the Closing
Date will be, duly and validly issued and outstanding, fully paid and
non-assessable by MainStay VP Series Fund, Inc. and have been offered and
sold in every state and the District of Columbia in compliance in all
material respects with applicable registration requirements of the 1933
Act and state securities laws. The Acquiring Portfolio does not
have outstanding any options, warrants or other rights to subscribe for or
purchase any Acquiring Portfolio Shares, nor is there outstanding any
security convertible into any Acquiring Portfolio
Shares;
|
|
|
(m)
|
The
execution, delivery and performance of this Plan will have been duly
authorized prior to the Closing Date by all necessary action, if any, on
the part of the Board of Directors of MainStay VP Series Fund, Inc., on
behalf of the Acquiring Portfolio, and this Plan will constitute a valid
and binding obligation of the Acquiring Portfolio, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors’ rights and to general equity
principles;
|
|
|
(n)
|
The
Initial and Service Class Acquiring Portfolio Shares to be issued and
delivered to the Acquired Portfolio, for the account of the Acquired
Portfolio Shareholders, pursuant to the terms of this Plan, will on the
Closing Date have been duly authorized and, when so issued and delivered,
will be duly and validly issued Acquiring Portfolio Shares, and will be
fully paid and non-assessable by the Acquiring
Portfolio;
|
|
|
(o)
|
The
information to be furnished by the Acquiring Portfolio for use in the
registration statements, proxy materials and other documents that may be
necessary in connection with the transactions contemplated hereby shall be
accurate and complete in all material respects and shall comply in all
material respects with Federal securities and other laws and regulations
applicable thereto; and
|
|
|
(p)
|
The
Proxy Statement to be included in the Registration Statement (and any
amendment or supplement thereto), insofar as it relates to the Acquiring
Portfolio and the Acquiring Portfolio Shares, will, from the effective
date of the Registration Statement through the date of the Special Meeting
of Shareholders of the Acquired Portfolio contemplated therein and on the
Closing Date (i) not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which such statements were made, not materially misleading,
provided, however, that the representations and warranties of this
subparagraph (p) shall not apply to statements in or omissions from the
Proxy Statement and the Registration Statement made in reliance upon and
in conformity with information that was furnished by the Acquired
Portfolio for use therein, and (ii) comply in all material respects
with the provisions of the 1933 Act, the 1934 Act, and the 1940 Act and
the rules and regulations
thereunder.
|
|
5.
|
Covenants
of the Acquiring Portfolio and the Acquired
Portfolio
|
5.1 The
Acquiring Portfolio and the Acquired Portfolio each will operate its business in
the ordinary course between the date hereof and the Closing Date, it being
understood that such ordinary course of business will include the declaration
and payment of customary dividends and distributions, and any other distribution
that may be advisable.
5.2 MainStay
VP Series Fund, Inc. has called a Special Meeting of the Shareholders of the
Acquired Portfolio to consider and act upon this Plan and has taken all other
action necessary to obtain approval of the transactions contemplated
herein.
5.3 The
Acquired Portfolio covenants that the Initial and Service Class Acquiring
Portfolio Shares to be issued hereunder are not being acquired for the purpose
of making any distribution thereof, other than in accordance with the terms of
this Plan.
5.4 The
Acquired Portfolio will assist the Acquiring Portfolio in obtaining such
information as the Acquiring Portfolio reasonably requests concerning the
beneficial ownership of the Acquired Portfolio’s shares.
5.5 Subject
to the provisions of this Plan, the Acquiring Portfolio and the Acquired
Portfolio will each take, or cause to be taken, all action, and do or cause to
be done all things, reasonably necessary, proper or advisable to consummate and
make effective the transactions contemplated by this Plan.
5.6 The
Acquired Portfolio has provided the Acquiring Portfolio with information
reasonably necessary for the preparation of the Proxy Statement (referred to in
paragraph 4.1(p)) to be included in a Registration Statement on Form N-14
(“Registration Statement”), in compliance with the 1933 Act, the 1934 Act and
the 1940 Act, in connection with the Special Meeting of the Shareholders of the
Acquired Portfolio to consider approval of this Plan and the transactions
contemplated herein.
5.7 As
soon as is reasonably practicable after the Closing, the Acquired Portfolio will
make a liquidating distribution to its respective shareholders consisting of the
Initial and Service Class Acquiring Portfolio Shares received at the
Closing.
5.8 The
Acquiring Portfolio and the Acquired Portfolio shall each use their reasonable
best efforts to fulfill or obtain the fulfillment of the conditions precedent to
effect the transactions contemplated by this Plan as promptly as
practicable.
5.9 MainStay
VP Series Fund, Inc., on behalf of the Acquired Portfolio, covenants that it
will, from time to time, as and when reasonably requested by the Acquiring
Portfolio, execute and deliver or cause to be executed and delivered all such
assignments and other instruments, and will take or cause to be taken such
further action as MainStay VP Series Fund, Inc., on behalf of the Acquiring
Portfolio, may reasonably deem necessary or desirable in order to vest in and
confirm (a) MainStay VP Series Fund, Inc.’s, on behalf of the Acquired
Portfolio, title to and possession of the Acquiring Portfolio Shares to be
delivered hereunder, and (b) MainStay VP Series Fund, Inc.’s, on behalf of
the Acquiring Portfolio, title to and possession of all the Assets and otherwise
to carry out the intent and purpose of this Plan.
5.10 The
Acquiring Portfolio will use all reasonable efforts to obtain the approvals and
authorizations required by the 1933 Act, the 1940 Act and such of the state blue
sky or securities laws as may be necessary in order to continue its operations
after the Closing Date.
6.
Conditions Precedent to Obligations of the Acquired Portfolio
The
obligations of MainStay VP Series Fund, Inc., on behalf of the Acquired
Portfolio, to consummate the transactions provided for herein shall be subject,
at MainStay VP Series Fund, Inc.’s election, to the performance by ▇▇▇▇▇▇▇▇ VP
Series Fund, Inc., on behalf of the Acquiring Portfolio, of all the obligations
to be performed by it hereunder on or before the Closing Date, and, in addition
thereto, the following further conditions:
6.1 All
representations and warranties of MainStay VP Series Fund, Inc., on behalf of
the Acquiring Portfolio, contained in this Plan shall be true and correct in all
material respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Plan, as of the Closing Date, with the
same force and effect as if made on and as of the Closing Date;
6.2 MainStay
VP Series Fund, Inc., on behalf of the Acquiring Portfolio, shall have delivered
to the Acquired Portfolio a certificate executed in the name of the Acquiring
Portfolio by its President or Vice President and its Treasurer or Assistant
Treasurer, in a form reasonably satisfactory to MainStay VP Series Fund, Inc.,
and dated as of the Closing Date, to the effect that the representations and
warranties of MainStay VP Series Fund, Inc., on behalf of the Acquiring
Portfolio, made in this Plan are true and correct at and as of the Closing Date,
except as they may be affected by the transactions contemplated by this Plan,
and as to such other matters as MainStay VP Series Fund, Inc. shall reasonably
request;
6.3 MainStay
VP Series Fund, Inc., on behalf of the Acquiring Portfolio, shall have performed
all of the covenants and complied with all of the provisions required by this
Plan to be performed or complied with by MainStay VP Series Fund, Inc., on
behalf of the Acquiring Portfolio, on or before the Closing Date;
and
6.4 The
Acquired Portfolio and the Acquiring Portfolio shall have agreed on the number
of full and fractional Initial and Service Class Acquiring Portfolio Shares to
be issued in connection with the Reorganization after such number has been
calculated in accordance with paragraph 1.1.
|
7.
|
Conditions
Precedent to Obligations of the Acquiring
Portfolio
|
The
obligations of MainStay VP Series Fund, Inc., on behalf of the Acquiring
Portfolio, to complete the transactions provided for herein shall be subject, at
MainStay VP Series Fund, Inc.’s election, to the performance by ▇▇▇▇▇▇▇▇ VP
Series Fund, Inc., on behalf of the Acquired Portfolio, of all of the
obligations to be performed by it hereunder on or before the Closing Date and,
in addition thereto, the following conditions:
7.1 All
representations and warranties of MainStay VP Series Fund, Inc., on behalf of
the Acquired Portfolio, contained in this Plan shall be true and correct in all
material respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Plan, as of the Closing Date, with the
same force and effect as if made on and as of the Closing Date;
7.2 MainStay
VP Series Fund, Inc. shall have delivered to the Acquiring Portfolio a statement
of the Acquired Portfolio’s Assets and Liabilities, as of the Closing Date,
certified by the Treasurer of MainStay VP Series Fund, Inc.;
7.3 MainStay
VP Series Fund, Inc., on behalf of the Acquired Portfolio, shall have delivered
to the Acquiring Portfolio a certificate executed in the name of the Acquired
Portfolio by its President or Vice President and its Treasurer or Assistant
Treasurer, in a form reasonably satisfactory to the Acquiring Portfolio and
dated as of the Closing Date, to the effect that the representations and
warranties of MainStay VP Series Fund, Inc., on behalf of the Acquired
Portfolio, made in this Plan are true and correct at and as of the Closing Date,
except as they may be affected by the transactions contemplated by this Plan,
and as to such other matters as MainStay VP Series Fund, Inc. shall reasonably
request;
7.4 MainStay
VP Series Fund, Inc., on behalf of the Acquired Portfolio, shall have performed
all of the covenants and complied with all of the provisions required by this
Plan to be performed or complied with by MainStay VP Series Fund, Inc., on
behalf of the Acquired Portfolio, on or before the Closing Date;
7.5 The
Acquired Portfolio and the Acquiring Portfolio shall have agreed on the number
of full and fractional Initial and Service Class Acquiring Portfolio Shares to
be issued in connection with the Reorganization after such number has been
calculated in accordance with paragraph 1.1; and
7.6 The
Acquired Portfolio shall have declared and paid a distribution or distributions
prior to the Closing that, together with all previous distributions, shall have
the effect of distributing to its shareholders (i) all of its investment
company taxable income and all of its net realized capital gains, if any, for
the period from the close of its last fiscal year to 4:00 p.m. Eastern time on
the Closing Date; and (ii) any undistributed investment company taxable
income and net realized capital gains from any period to the extent not
otherwise already distributed.
|
8.
|
Further
Conditions Precedent to Obligations of the Acquiring Portfolio and the
Acquired Portfolio
|
If any of
the conditions set forth below have not been satisfied on or before the Closing
Date with respect to MainStay VP Series Fund, Inc., on behalf of the Acquired
Portfolio, or MainStay VP Series Fund, Inc., on behalf of the Acquiring
Portfolio, the other party to this Plan shall, at its option, not be required to
consummate the transactions contemplated by this Plan:
8.1 The
Plan and the transactions contemplated herein shall have been approved by the
requisite vote of the holders of the outstanding shares of the Acquired
Portfolio in accordance with the provisions of MainStay VP Series Fund, Inc.’s
Articles of Incorporation and By-Laws, applicable Maryland law and the 1940 Act,
and certified copies of the resolutions evidencing such approval shall have been
delivered to the Acquiring Portfolio. Notwithstanding anything herein
to the contrary, MainStay VP Series Fund, Inc., on behalf of either the Acquired
Portfolio or the Acquiring Portfolio, may not waive the conditions set forth in
this paragraph 8.1;
8.2 On
the Closing Date no action, suit or other proceeding shall be pending or, to
MainStay VP Series Fund, Inc.’s knowledge, threatened before any court or
governmental agency in which it is sought to restrain or prohibit, or obtain
damages or other relief in connection with, this Plan or the transactions
contemplated herein;
8.3 All consents of other parties and all
other consents, orders and permits of Federal, state and local regulatory
authorities deemed necessary by MainStay VP Series Fund, Inc. to permit
consummation, in all material respects, of the transactions contemplated hereby
shall have been obtained, except where failure to obtain any such consent, order
or permit would not involve a risk of a material adverse effect on the assets or
properties of the Acquiring Portfolio or the Acquired Portfolio, provided that
either party hereto may for itself waive any of such
conditions;
8.4 The
Registration Statement shall have become effective under the 1933 Act and no
stop orders suspending the effectiveness thereof shall have been issued and, to
the best knowledge of the parties hereto, no investigation or proceeding for
that purpose shall have been instituted or be pending, threatened or
contemplated under the 1933 Act; and
8.5 The
parties shall have received the opinion of counsel to MainStay VP Series Fund,
Inc., on behalf of the Acquired Portfolio, substantially to the effect that,
based upon certain facts, assumptions, and representations, the transaction
contemplated by this Plan shall constitute a tax-free reorganization for Federal
income tax purposes. The delivery of such opinion is conditioned upon
receipt by counsel to MainStay VP Series Fund, Inc. of representations it shall
request of MainStay VP Series Fund, Inc. Notwithstanding anything
herein to the contrary, MainStay VP Series Fund, Inc., on behalf of either the
Acquired Portfolio or the Acquiring Portfolio, may not waive the condition set
forth in this paragraph 8.5.
|
9.
|
Indemnification
|
9.1 MainStay
VP Series Fund, Inc., out of the Acquiring Portfolio’s assets and property,
agrees to indemnify and hold harmless the Acquired Portfolio from and against
any and all losses, claims, damages, liabilities or expenses (including, without
limitation, the payment of reasonable legal fees and reasonable costs of
investigation) to which the Acquired Portfolio may become subject, insofar as
such loss, claim, damage, liability or expense (or actions with respect thereto)
arises out of or is based on any breach by the Acquiring Portfolio of any of its
representations, warranties, covenants or agreements set forth in this
Plan.
9.2 MainStay
VP Series Fund, Inc., out of the Acquired Portfolio’s assets and property,
agrees to indemnify and hold harmless the Acquiring Portfolio from and against
any and all losses, claims, damages, liabilities or expenses (including, without
limitation, the payment of reasonable legal fees and reasonable costs of
investigation) to which the Acquiring Portfolio may become subject, insofar as
such loss, claim, damage, liability or expense (or actions with respect thereto)
arises out of or is based on any breach by the Acquired Portfolio of any of its
representations, warranties, covenants or agreements set forth in this
Plan.
|
10.
|
Brokerage
Fees and Expenses
|
10.1 MainStay
VP Series Fund, Inc., on behalf of both the Acquiring Portfolio and the Acquired
Portfolio represents and warrants that there are no brokers or finders entitled
to receive any payments in connection with the transactions provided for herein,
other than any brokerage fees and expenses incurred in connection with the
Reorganization.
10.2 The
expenses relating to the proposed Reorganization will be borne by New York Life
Investments, the Acquired Portfolio and/or the Acquiring Portfolio as mutually
agreed upon. The costs of the Reorganization shall include, but not
be limited to, costs associated with obtaining any necessary order of exemption
from the 1940 Act, if any, preparation of the Registration Statement, printing
and distributing the Proxy Statement, legal fees, accounting fees, securities
registration fees, and expenses of holding shareholders’
meetings. Notwithstanding any of the foregoing, expenses will in any
event be paid by the party directly incurring such expenses if and to the extent
that the payment by another person of such expenses would result in the
disqualification of such party as a “regulated investment company” within the
meaning of Section 851 of the Code.
|
11.
|
Entire
Agreement; Survival of Warranties
|
11.1 MainStay
VP Series Fund, Inc. agrees that it has not made any representation, warranty or
covenant, on behalf of either the Acquiring Portfolio or the Acquired Portfolio
not set forth herein and that this Plan constitutes the entire agreement between
the parties.
11.2 The
representations, warranties and covenants contained in this Plan or in any
document delivered pursuant hereto or in connection herewith shall survive the
consummation of the transactions contemplated hereunder. The
covenants to be performed after the Closing and the obligations of the Acquired
Portfolio and Acquiring Portfolio in Sections 9.1 and 9.2 shall survive the
Closing.
|
12.
|
Termination
|
This Plan
may be terminated and the transactions contemplated hereby may be abandoned by
resolution of the Board of MainStay VP Series Fund, Inc., on behalf of either
the Acquiring Portfolio or the Acquired Portfolio, at any time prior to the
Closing Date, if circumstances should develop that, in the opinion of the
Boards, make proceeding with the Plan inadvisable.
|
13.
|
Amendments
|
This Plan
may be amended, modified or supplemented in such manner as may be deemed
necessary or advisable by the authorized officers of MainStay VP Series Fund,
Inc., on behalf of either the Acquiring Portfolio or the Acquired Portfolio;
provided, however, that following the Special Meeting of the Shareholders of the
Acquired Portfolio called by MainStay VP Series Fund, Inc., pursuant to
paragraph 5.2 of this Plan, no such amendment may have the effect of changing
the provisions for determining the number of Initial and Service Class Acquiring
Portfolio Shares to be issued to the Initial and Service Class Acquired
Portfolio Shareholders, respectively, under this Plan to the detriment of such
shareholders without their further approval.
|
14.
|
Notices
|
Any
notice, report, statement or demand required or permitted by any provisions of
this Plan shall be in writing and shall be given by facsimile, electronic
delivery (i.e., e-mail) personal service or prepaid or certified mail addressed
to the Portfolios, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇.
▇▇▇▇▇▇▇▇, in each case with a copy to Dechert LLP, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
|
15.
|
Headings;
Governing Law; Assignment; Limitation of
Liability
|
15.1 The
Article and paragraph headings contained in this Plan are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Plan.
15.2 This
Plan shall be governed by and construed in accordance with the laws of the State
of New York without regard to its principles of conflicts of laws.
15.3 This
Plan shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns, but no assignment or transfer hereof or of
any rights or obligations hereunder shall be made by any party without the
written consent of the other party. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give any person,
firm or corporation, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this
Plan. Except as expressly provided otherwise in this Plan, the
parties hereto will bear the expenses relating to the Reorganization as set
forth in Section 10.2 as mutually agreed upon.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Plan to be executed
as of the 20th day of
November, 2009.
|
MAINSTAY
VP SERIES FUND, INC.
On
behalf of the Acquiring Portfolio:
MainStay
VP ICAP Select Equity Portfolio
|
MAINSTAY
VP SERIES FUND, INC.
On
behalf of the Acquired Portfolio:
MainStay
VP Mid Cap Value Portfolio
|
|
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
President
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
President
|
New York
Life Investments agrees to the provisions set forth in Sections 10.2 and 15.3 of
this Plan.
|
NEW
YORK LIFE INVESTMENT
MANAGEMENT
LLC
|
|
By:
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
Executive
Vice President
|