FORM N-SAR Exhibits 77Q1(e) ECLIPSE FUNDS INC. For Period Ended 4/30/09 ECLIPSE FUNDS INC. SUBADVISORY AGREEMENT
FORM
N-SAR
Exhibits
77Q1(e)
811-06175
For
Period Ended 4/30/09
This
Subadvisory Agreement, made as of the 1st day
of January, 2009 (the “Agreement”), between New York Life Investment Management
LLC, a Delaware limited liability company (the “Manager”) and Madison Square
Investors LLC, a Delaware limited liability company (the
“Subadvisor”).
WHEREAS,
Eclipse Funds Inc. (the “Company”) is registered under the Investment Company
Act of 1940, as amended (the “1940 Act”), as an open-end, management investment
company; and
WHEREAS,
the Company is authorized to issue separate series, each of which may offer a
separate class of shares of beneficial interest, each series having its own
investment objective or objectives, policies and limitations; and
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; and
WHEREAS,
the Manager has entered into the Amended and Restated Management Agreement with
the Company, on behalf of its series, as amended (the “Management Agreement”);
and
WHEREAS,
under the Management Agreement, the Manager has agreed to provide certain
investment advisory and related administrative services to the Company;
and
WHEREAS,
the Management Agreement permits the Manager to delegate certain of its
investment advisory duties under the Management Agreement to one or more
subadvisors; and
WHEREAS,
the Manager wishes to retain the Subadvisor to furnish certain investment
advisory services to one or more of the series of the Company and manage such
portion of the Company as the Manager shall from time to time direct, and the
Subadvisor is willing to furnish such services;
NOW,
THEREFORE, in consideration of the premises and the promises and mutual
covenants herein contained, it is agreed between the Manager and the Subadvisor
as follows:
1. Appointment. The
Manager hereby appoints Madison Square Investors LLC to act as Subadvisor to the
series designated on Schedule A of this Agreement (the “Series”) with respect to
all or a portion of the assets of the Series designated by the Manager as
allocated to the Subadvisor (“Allocated Assets”) subject to such written
instructions, including any redesignation of Allocated Assets and supervision as
the Manager may from time to time furnish for the periods and on the terms set
forth in this Agreement. The Subadvisor 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 Manager wishes to
retain the Subadvisor to render investment advisory services hereunder, it shall
notify the Subadvisor in writing. If the Subadvisor is willing to
render such services, it shall notify the Manager in writing, whereupon such
series shall become a Series hereunder, and be subject to this Agreement, and
Schedule A shall be revised accordingly.
2. Portfolio
Management Duties. Subject to the supervision of the Company’s Board
of Directors (“Board”) and the Manager, the Subadvisor will provide a continuous
investment program for the Series’ Allocated Assets and determine the
composition of the assets of the Series’ Allocated Assets, including
determination of the purchase, retention or sale of the securities, cash and
other investments contained in the portfolio. The Subadvisor will
conduct investment research and conduct a continuous program of evaluation,
investment, sales and reinvestment of the Series’ Allocated 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 Allocated Assets of the Series
should be held in the various securities and other investments in which it may
invest, and the Subadvisor is hereby authorized to execute and perform such
services on behalf of the Series. The Subadvisor 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 (the
“SEC”), as amended, copies of which shall be delivered to the Subadvisor by the
Manager. The Subadvisor further agrees as follows:
(a) The
Subadvisor understands that the Allocated Assets of the Series need to be
managed so as to permit the Series to qualify or continue to qualify as a
regulated investment company under Subchapter M of the Internal Revenue Code,
and will coordinate efforts with the Manager with that objective.
(b) The
Subadvisor will conform with the 1940 Act and all rules and regulations
thereunder, all other applicable federal and state laws and regulations, any
applicable procedures adopted by the Company’s Board of which a copy has been
delivered to the Subadvisor, and the provisions of the Registration Statement of
the Company under the Securities Act of 1933, as amended (the “1933 Act”), and
the 1940 Act, as supplemented or amended, copies of which shall be delivered to
the Subadvisor by the Manager.
(c) On
occasions when the Subadvisor 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 Subadvisor or any of its affiliates, the Subadvisor 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 Subadvisor in a manner that, over time, is fair
and equitable in the judgment of the Subadvisor in the exercise of its fiduciary
obligations to the Company and to such other clients, subject to review by the
Manager and the Board. The Manager recognizes that in some cases this
procedure may adversely affect the results obtained for the Series or
Company.
(d) In
connection with the purchase and sale of securities for the Series, the
Subadvisor 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 their administrative and recordkeeping
responsibilities with respect to the Series. With respect to
portfolio securities to be purchased or sold through the Depository Company and
Clearing Corporation, the Subadvisor will arrange for the automatic transmission
of the confirmation of such trades to the Company’s custodian and portfolio
accounting agent.
(e) The
Subadvisor 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 Allocated Assets of the Series for which the
custodian and portfolio accounting agent seek assistance from, or which they
identify for review by, the Subadvisor.
(f) The
Subadvisor will make available to the Company and the Manager, promptly upon
request, all of the Series’ investment records and ledgers maintained by the
Subadvisor (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 Manager to comply with requirements of the 1940 Act
and the Investment Advisers Act of 1940, as amended (the “Advisers Act”), as
well as other applicable laws. The Subadvisor will furnish to
regulatory agencies having the requisite authority any information or reports in
connection with such services that 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
Subadvisor will provide reports to the Company’s Board, for consideration at
meetings of the Board, on the investment program for the Series and the issuers
and securities represented in the Series’ Allocated Assets, and will furnish the
Company’s Board with respect to the Series such periodic and special reports as
the Directors and the Manager may reasonably request.
(h) In
rendering the services required under this Agreement, the Subadvisor may, from
time to time, employ or associate with itself such entity, entities, person or
persons as it believes necessary to assist it in carrying out its obligations
under this Agreement. The Subadvisor may not, however, retain as
subadvisor 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 and by 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 Manager,
the Subadvisor or any such company that is retained as subadvisor, and also is
approved by the vote of a majority of the outstanding voting securities of the
applicable Series of the Company to the extent required by the 1940
Act. The Subadvisor shall be responsible for making reasonable
inquiries and for reasonably ensuring that any employee of the Subadvisor, any
subadvisor that the Subadvisor has employed or with which it has associated with
respect to the Series, or any employee thereof has not, to the best of the
Subadvisor’s knowledge, in any material connection with the handling of Company
assets:
(i) been
convicted, within 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. Compensation. For
the services provided and the expenses assumed pursuant to this Agreement, the
Manager shall pay the Subadvisor as full compensation therefor, a fee equal to
the percentage of the Allocated Assets constituting the respective Series’
average daily net assets as described in the attached Schedule
A. Liability for payment of compensation by the Manager to the
Subadvisor under this Agreement is contingent upon the Manager’s receipt of
payment from the Company for management services described under the Management
Agreement between the Company and the Manager. Expense limitations or
fee waivers for the Series that may be agreed to by the Manager, but not agreed
to in writing by the Subadvisor, shall not cause a reduction in the amount of
the payment to the Subadvisor by the Manager.
4. Broker-Dealer
Selection. The Subadvisor is responsible for decisions to buy and
sell securities and other investments for the Series’ Allocated Assets, for
broker-dealer selection and for negotiation of brokerage commission
rates. The Subadvisor’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 the following: 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, 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 Subadvisor 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 may determine, and consistent with Section 28(e) of the Securities
Exchange Act of 1934, as amended, and the rules and interpretations of the SEC
thereunder, the Subadvisor 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
Subadvisor 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 Subadvisor’s or its affiliate’s overall
responsibilities with respect to the Series and to their other clients as to
which they exercise investment discretion. To the extent consistent
with these standards and the Company’s Procedures for Securities Transactions
with Affiliated Brokers pursuant to Rule 17e-1, the Subadvisor is further
authorized to allocate the orders placed by it on behalf of the Series to the
Subadvisor 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, statistical material or other services to the Series, the Subadvisor
or an affiliate of the Subadvisor. Such allocation shall be in such
amounts and proportions as the Subadvisor shall determine consistent with the
above standards and the Subadvisor will report on said allocation regularly to
the Board of the Company, indicating the broker-dealers to which such
allocations have been made and the basis therefor.
5. Disclosure
about Subadvisor. The Subadvisor has reviewed the post-effective
amendment to the Registration Statement for the Company filed with the SEC that
contains disclosure about the Subadvisor and represents and warrants that, with
respect to the disclosure about the Subadvisor or information relating directly
or indirectly to the Subadvisor, 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 Subadvisor further represents and warrants that it is
a duly registered investment adviser under the Advisers Act and has notice filed
in all states in which the Subadvisor is required to make such
filings.
6. Expenses. During
the term of this Agreement, the Subadvisor will pay all expenses incurred by it
and its staff and for their activities in connection with its portfolio
management duties under this Agreement. The Manager or the Company
shall be responsible for all the expenses of the Company’s operations,
including, but not limited to:
(a) the
fees and expenses of Directors who are not interested persons of the Manager or
of the Company;
(b) the
fees and expenses of each Series which relate to: (i) the
custodial function and recordkeeping connected therewith; (ii) the
maintenance of the required accounting records of the Series not being
maintained by the Manager; (iii) the pricing of the Series’ shares,
including the cost of any pricing service or services that may be retained
pursuant to the authorization of the Directors of the Company; and (iv) for
both mail and wire orders, the cashiering function in connection with the
issuance and redemption of the Series’ shares;
(c) the
fees and expenses of the Company’s transfer and dividend disbursing agent, that
may be the custodian, which relate to the maintenance of each shareholder
account;
(d) the
charges and expenses of legal counsel and independent accountants for the
Company;
(e) brokers’
commissions and any issue or transfer taxes chargeable to the Company in
connection with its securities transactions on behalf of the
Series;
(f) all
taxes and business fees payable by the Company or the Series to federal, state
or other governmental agencies;
(g) the
fees of any trade association of which the Company may be a member;
(h) the
cost of share certificates representing the Series’ shares;
(i) the
fees and expenses involved in registering and maintaining registrations of the
Company and of its Series with the SEC, registering the Company as a broker or
dealer and qualifying its shares under state securities laws, including the
preparation and printing of the Company’s registration statements and
prospectuses for filing under federal and state securities laws for such
purposes;
(j) allocable
communications expenses with respect to investor services and all expenses of
shareholders’ and Directors’ meetings and of preparing, printing and mailing
reports to shareholders in the amount necessary for distribution to the
shareholders;
(k) litigation
and indemnification expenses and other extraordinary expenses not incurred in
the ordinary course of the Company’s business; and
(l) any
expenses assumed by the Series pursuant to a Plan of Distribution adopted in
conformity with Rule 12b-1 under the 1940 Act.
7. Compliance.
(a) The
Subadvisor agrees to assist the Manager and the Company in complying with the
Company’s obligations under Rule 38a-1 under the 1940 Act, including but not
limited to: (i) periodically providing the Company’s Chief
Compliance Officer with information about and independent third-party reports
(if available) in connection with the Subadvisor’s compliance program adopted
pursuant to Rule 206(4)-7 under the Advisers Act (“Subadvisor’s Compliance
Program”); (ii) reporting any material deficiencies in the Subadvisor’s
Compliance Program to the Company’s Chief Compliance Officer within a reasonable
time; and (iii) reporting any material changes to the Subadvisor’s
Compliance Program to the Company’s Chief Compliance Officer within a reasonable
time. The Subadvisor understands that the Board of the Company is
required to approve the Subadvisor’s Compliance Program on at least an annual
basis, and acknowledges that this Agreement is conditioned upon the Board’
approval of the Subadvisor’s Compliance Program.
(b) The
Subadvisor agrees that it shall immediately notify the Manager and the Company’s
Chief Compliance Officer: (i) in the event that the SEC has
censured the Subadvisor, placed limitations upon its activities, functions or
operations, suspended or revoked its registration as an investment adviser or
commenced proceedings or an investigation that may result in any of these
actions; or (ii) 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. The
Subadvisor further agrees to notify the Manager immediately of any material fact
known to the Subadvisor respecting or relating to the Subadvisor 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.
(c) The
Manager agrees that it shall immediately notify the
Subadvisor: (i) in the event that the SEC has censured the
Manager or the Company, placed limitations upon either of their activities,
functions or operations, suspended or revoked the Manager’s registration as an
investment adviser or commenced proceedings or an investigation that may result
in any of these actions; or (ii) 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.
8. Documents. The
Manager has delivered to the Subadvisor copies of each of the following
documents and will deliver to it all future amendments and supplements, if
any:
(a) Articles
of Incorporation of the Company, as amended from time to time, as filed with the
Department of Assessments and Taxation of the State of Maryland (such Articles
of Incorporation, as in effect on the date hereof and as amended from time to
time, are herein called the “Articles of Incorporation”);
(b) By-Laws
of the Company, as amended from time to time (such By-Laws, as in effect on the
date hereof and as amended from time to time, are herein called the
“By-Laws”);
(c) Certified
Resolutions of the Directors of the Company authorizing the appointment of the
Subadvisor and approving the form of this Agreement;
(d) Registration
Statement under the 1940 Act and the Securities Act of 1933, as amended, on Form
N-lA, as filed with the SEC relating to the Series and the Series’ shares, and
all amendments thereto;
(e) Notification
of Registration of the Company under the 1940 Act on Form N-8A, as filed with
the SEC, and all amendments thereto; and
(f) Prospectus
and Statement of Additional Information of the Series.
9. Books
and Records. In compliance with the requirements of Rule 31a-3 under
the 1940 Act, the Subadvisor hereby agrees that all records that 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 Manager’s
request; provided, however, that the Subadvisor may, at its own expense, make
and retain a copy of such records. The Subadvisor 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 SEC) in connection with any investigation or
inquiry relating to this Agreement or the Company.
11. Representations
Respecting Subadvisor. The Manager and the Company agree that neither
the Company, the Manager, nor affiliated persons of the Company or the Manager
shall, except with the prior permission of the Subadvisor, give any information
or make any representations or statements in connection with the sale of shares
of the Series concerning the Subadvisor or the Series other than the information
or 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 Subadvisor. The parties agree that, in the event that
the Manager or an affiliated person of the Manager sends sales literature or
other promotional material to the Subadvisor for its approval and the Subadvisor
has not commented within five (5) business days, the Manager and its affiliated
persons may use and distribute such sales literature or other promotional
material, although, in such event, the Subadvisor shall not be deemed to have
approved of the contents of such sales literature or other promotional
material.
12. Confidentiality. The
Subadvisor will treat as proprietary and confidential any information obtained
in connection with its duties hereunder, including all records and information
pertaining to the Series and its prior, present or potential
shareholders. The Subadvisor will not use such information for any
purpose other than the performance of its responsibilities and duties
hereunder. Such information may not be disclosed except after prior
notification to and approval in writing by the Series or if such disclosure is
expressly required or requested by applicable federal or state regulatory
authorities.
13. Control. Notwithstanding
any other provision of the Agreement, it is understood and agreed that the
Manager shall at all times retain the ultimate responsibility for and control of
all functions performed pursuant to this Agreement, and reserves the right to
direct, approve or disapprove any action hereunder taken on its behalf by the
Subadvisor.
14. Liability. Except
as may otherwise be required by the 1940 Act or the rules thereunder or other
applicable law, the Company and the Manager agree that the Subadvisor, any
affiliated person of the Subadvisor, and each person, if any, who, within the
meaning of Section 15 of the 1933 Act controls the Subadvisor, 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 Subadvisor’s duties, or by reason of
reckless disregard of the Subadvisor’s obligations and duties under this
Agreement.
Nothing
in this section shall be deemed a limitation or waiver of any obligation or duty
that may not by law be limited or waived.
15. Indemnification.
(a) The
Manager agrees to indemnify and hold harmless the Subadvisor, any affiliated
person of the Subadvisor, and each person, if any, who, within the meaning of
Section 15 of the 1933 Act controls (“controlling person”) the Subadvisor (all
of such persons being referred to as “Subadvisor Indemnified Persons”) against
any and all losses, claims, damages, liabilities or litigation (including legal
and other expenses) to which a Subadvisor 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
Manager’s responsibilities to the Company, which: (i) may be
based upon any willful misfeasance, bad faith or gross negligence in the
performance of the Manager’s duties or reckless disregard of the Manager’s
obligations and duties under this Agreement, or by any of its employees or
representatives or any affiliate of or any person acting on behalf of the
Manager, or (ii) may be based upon any untrue statement or alleged untrue
statement of a material fact supplied by, or which is the responsibility of, the
Manager 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 Manager 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 Manager, the Company or to any affiliated person of the Manager
by a Subadvisor Indemnified Person; provided, however, that in no case shall the
indemnity in favor of the Subadvisor 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 Subadvisor agrees to indemnify and hold
harmless the Manager, any affiliated person of the Manager, and each person, if
any, who, within the meaning of Section 15 of the 1933 Act, controls
(“controlling person”) the Manager (all of such persons being referred to as
“Manager Indemnified Persons”) against any and all losses, claims, damages,
liabilities or litigation (including legal and other expenses) to which a
Manager 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 Subadvisor’s responsibilities as Subadvisor of
the Series, which: (i) may be based upon any willful
misfeasance, bad faith or gross negligence in the performance of the
Subadvisor’s duties, or by reason of reckless disregard of the Subadvisor’s
obligations and duties under this Agreement, or by any of its employees or
representatives, or any affiliate of or any person acting on behalf of the
Subadvisor; (ii) may be based upon a failure to comply with Section 2, Paragraph
(a) of this Agreement; or (iii) 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 Subadvisor
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 Manager, the Company or any affiliated person
of the Manager or Company by the Subadvisor or any affiliated person of the
Subadvisor; provided, however, that in no case shall the indemnity in favor of a
Manager 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 its obligations and duties
under this Agreement.
(c) The
Manager shall not be liable under Paragraph (a) of this Section 15 with respect
to any claim made against a Subadvisor Indemnified Person unless such Subadvisor
Indemnified Person shall have notified the Manager 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
Subadvisor Indemnified Person (or after such Subadvisor Indemnified Person shall
have received notice of such service on any designated agent), but failure to
notify the Manager of any such claim shall not relieve the Manager from any
liability that it may have to the Subadvisor 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 Subadvisor
Indemnified Person, the Manager will be entitled to participate, at its own
expense, in the defense thereof or, after notice to the Subadvisor Indemnified
Person, to assume the defense thereof, with counsel satisfactory to the
Subadvisor Indemnified Person. If the Manager assumes the defense of
any such action and the selection of counsel by the Manager to represent both
the Manager and the Subadvisor Indemnified Person would result in a conflict of
interest and, therefore, would not, in the reasonable judgment of the Subadvisor
Indemnified Person, adequately represent the interests of the Subadvisor
Indemnified Person, the Manager will, at its own expense, assume the defense
with counsel to the Manager and, also at its own expense, with separate counsel
to the Subadvisor Indemnified Person, which counsel shall be satisfactory to the
Manager and to the Subadvisor Indemnified Person. The Subadvisor
Indemnified Person shall bear the fees and expenses of any additional counsel
retained by it, and the Manager shall not be liable to the Subadvisor
Indemnified Person under this Agreement for any legal or other expenses
subsequently incurred by the Subadvisor Indemnified Person independently in
connection with the defense thereof other than reasonable costs of
investigation. The Manager shall not have the right to compromise on
or settle the litigation without the prior written consent of the Subadvisor
Indemnified Person if the compromise or settlement results, or may result, in a
finding of wrongdoing on the part of the Subadvisor Indemnified
Person.
(d) The
Subadvisor shall not be liable under Paragraph (b) of this Section 15 with
respect to any claim made against a Manager Indemnified Person unless such
Manager Indemnified Person shall have notified the Subadvisor 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 Manager Indemnified Person (or after such Manager Indemnified Person shall
have received notice of such service on any designated agent), but failure to
notify the Subadvisor of any such claim shall not relieve the Subadvisor from
any liability that it may have to the Manager 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 Manager
Indemnified Person, the Subadvisor will be entitled to participate, at its own
expense, in the defense thereof or, after notice to the Manager Indemnified
Person, to assume the defense thereof, with counsel satisfactory to the Manager
Indemnified Person. If the Subadvisor assumes the defense of any such
action and the selection of counsel by the Subadvisor to represent both the
Subadvisor and the Manager Indemnified Person would result in a conflict of
interest and, therefore, would not, in the reasonable judgment of the Manager
Indemnified Person, adequately represent the interests of the Manager
Indemnified Person, the Subadvisor will, at its own expense, assume the defense
with counsel to the Subadvisor and, also at its own expense, with separate
counsel to the Manager Indemnified Person, which counsel shall be satisfactory
to the Subadvisor and to the Manager Indemnified Person. The Manager
Indemnified Person shall bear the fees and expenses of any additional counsel
retained by it, and the Subadvisor shall not be liable to the Manager
Indemnified Person under this Agreement for any legal or other expenses
subsequently incurred by the Manager Indemnified Person independently in
connection with the defense thereof other than reasonable costs of
investigation. The Subadvisor shall not have the right to compromise
on or settle the litigation without the prior written consent of the Manager
Indemnified Person if the compromise or settlement results, or may result, in a
finding of wrongdoing on the part of the Manager Indemnified
Person.
16. Services
Not Exclusive. The services furnished by the Subadvisor hereunder are
not to be deemed exclusive, and except as the Subadvisor may otherwise agree in
writing, the Subadvisor shall be free to furnish similar services to others so
long as its services under this Agreement are not impaired
thereby. Nothing in this Agreement shall limit or restrict the right
of any director, officer or employee of the Subadvisor, who may also be a
trustee, officer or employee of the Company, to engage in any other business or
to devote his or her time and attention in part to the management or other
aspects of any other business, whether of a similar nature or a dissimilar
nature.
17. 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 an initial period of two (2)
years from the date first indicated above when following a shareholder approval,
and otherwise a period of one (1) year, and continue on an annual basis
thereafter with respect to the Series, provided that such continuance is
specifically approved each year by: (a) the vote of a majority of the
entire Board 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. 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 Manager at any time without penalty, upon
sixty (60) days’ written notice to the Subadvisor 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 or a majority of the outstanding voting
securities of each Series, upon sixty (60) days’ written notice to the Manager
and the Subadvisor; or (C) by the Subadvisor at any time without penalty,
upon sixty (60) days’ written notice to the Manager 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 Manager or the Company, free from any claim or retention of rights in such
record by the Subadvisor; provided, however, that the Subadvisor 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) or in the event the Management Agreement between the
Manager and the Company is assigned or terminates for any other
reason. In the event this Agreement is terminated or is not approved
in the manner described above, the Sections numbered 2(f), 8, 9, 10, 12, 14, 15
and 19 of this Agreement shall remain in effect, as well as any applicable
provision of this Section 17.
18. 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
material 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.
19. Use
of Name.
(a) It
is understood that the names MainStay, Eclipse or any derivatives thereof or
logos associated with those names are the valuable property of the Manager
and/or its affiliates, and that the Subadvisor has the right to use such names
(or derivatives or logos) only with the approval of the Manager and only so long
as the Manager is Manager to the Company and/or the Series. Upon
termination of the Management Agreement between the Company and the Manager, the
Subadvisor shall forthwith cease to use such names (or derivatives or
logos).
(b) It
is understood that the name Madison Square Investors LLC or any derivative
thereof or logo associated with that name is the valuable property of the
Subadvisor and its affiliates and that the Company and/or the Series have the
right to use such name (or derivative or logo) in offering materials of the
Company or sales materials with respect to the Company with the approval of the
Subadvisor and for so long as the Subadvisor is a Subadvisor to the Company
and/or the Series. Upon termination of this Agreement, the Company
shall forthwith cease to use such name (or derivative or logo).
20. Proxies;
Class Actions.
(a) The
Manager has provided the Subadvisor a copy of the Manager’s Proxy Voting Policy,
setting forth the policy that proxies be voted for the exclusive benefit and in
the best interests of the Company. Absent contrary instructions
received in writing from the Company, the Subadvisor will vote all proxies
solicited by or with respect to the issuers of securities held by the Series in
accordance with applicable fiduciary obligations. The Subadvisor
shall maintain records concerning how it has voted proxies on behalf of the
Company, and these records shall be available to the Company upon
request.
(b) Manager
acknowledges and agrees that the Subadvisor shall not be responsible for taking
any action or rendering advice with respect to any class action claim relating
to any assets held in the Allocated Assets or Series. Manager will
instruct the applicable service providers not to forward to the Subadvisor any
information concerning such actions. The Subadvisor will, however,
forward to Manager any information it receives regarding any legal matters
involving any asset held in the Allocated Assets or Series.
21. Notice. Any
notice or other communication required to be given pursuant to this Agreement
shall be deemed duly given if delivered or mailed by registered mail, postage
prepaid, (1) to the Manager at NYLIM Center, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President; or (2) to the Subadvisor at Madison
Square Investors LLC, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: President.
22. 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 1940 Act;
(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 17 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 Subadvisor as an agent of the
Manager, or constituting the Manager as an agent of the Subadvisor.
* * *
IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
by their officers designated below as of the 1st day
of January, 2009. This Agreement may be signed in
counterparts.
NEW YORK
LIFE INVESTMENT MANAGEMENT LLC
Attest:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ By:_/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇
▇. ▇▇▇▇▇
Title: Director Title: Executive
Vice President
MADISON
SQUARE INVESTORS LLC
Attest: /s/
▇▇▇▇▇▇
▇▇▇▇ By: /s/
▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇ Name: ▇▇▇▇
▇▇▇▇▇▇
Title: 2nd Vice
President Title: Chief
Executive Officer
SCHEDULE
A
(As of
January 1, 2009)
As
compensation for services provided by Subadvisor the Manager will pay the
Subadvisor and Subadvisor agrees to accept as full compensation for all services
rendered hereunder, at an annual subadvisory fee equal to the
following:
|
FUND
|
ANNUAL
RATE
|
|
Conservative
Allocation Fund
|
0.050%
|
|
Growth
Allocation Fund
|
0.050%
|
|
Growth
Equity Fund *
|
0.350%
up to $500 million; and
0.3375%
in excess of $500 million
|
|
Income
Manager Fund *
|
0.325%
up to $1 billion; and
0.3125%
in excess of $1 billion †
|
|
Moderate
Allocation Fund
|
0.050%
|
|
Moderate
Growth Allocation Fund
|
0.050%
|
|
S&P
500 Index Fund *
|
0.125%
up to $1 billion;
0.1125%
from $1 billion to $2 billion;
0.1075%
from $2 billion to $3 billion; and
0.100%
in excess of $3 billion
|
|
130/30
Core Fund *
|
0.500%
|
|
130/30
Growth Fund *
|
0.500%
|
|
130/30
International Fund *
|
0.550%
|
|
Retirement
2010 Fund
|
0.050%
|
|
Retirement
2020 Fund
|
0.050%
|
|
Retirement
2030 Fund
|
0.050%
|
|
Retirement
2040 Fund
|
0.050%
|
|
Retirement
2050 Fund
|
0.050%
|
The
portion of the fee based upon the average daily net assets of the respective
Fund shall be accrued daily at the rate of 1/(number of days in calendar year)
of the annual rate applied to the daily net assets of the Fund.
|
|
Payment
will be made to the Subadvisor on a monthly
basis.
|
* For
certain Funds listed above, NYLIM has agreed to waive a portion of each Fund’s
management fee or reimburse the expenses of the appropriate class of the Fund so
that the class’ total ordinary operating expenses do not exceed certain
amounts. These waivers or expense limitations may be changed with
Board approval. To the extent NYLIM has agreed to waive its
management fee or reimburse expenses, Madison Square Investors LLC, as
Subadvisor for these Funds, has voluntarily agreed to waive or reimburse its fee
proportionately.
† On
the portion of the Fund’s assets that are being subadvised by Madison Square
Investors LLC.