MAINSTAY VP SERIES FUND, INC FOR PERIOD ENDED 12/31/08 MAINSTAY SERIES VP SERIES FUND, INC. AMENDED AND RESTATED MANAGEMENT AGREEMENT
EXHIBIT
77 Q1
MAINSTAY
VP SERIES FUND, INC
811-03833
FOR
PERIOD ENDED 12/31/08
MAINSTAY
SERIES VP SERIES FUND, INC.
AMENDED
AND RESTATED MANAGEMENT AGREEMENT
This
Amended and Restated Management Agreement is hereby made as of the 1st
day of
August, 2008 (the “Agreement”) between MainStay VP Series Fund, Inc. (the
“Company”), further amended from time to time, on behalf of its series as set
forth on Schedule A (each, a “Portfolio,” and collectively, the “Portfolios”)
and New York Life Investment Management LLC, a Delaware limited liability
company (“NYLIM” or the “Manager”).
W
I T N E
S S E T H:
WHEREAS,
the Company is an open-end management investment company registered under
the
Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS,
the shares of common stock of the Company (the “Shares”) are divided into
separate series, each of which is established by resolution of the Board
of
Directors of the Company (“Board”) and the Directors may from time to time
terminate such series or establish and terminate additional series; and
WHEREAS,
the Manager is engaged in rendering investment management services and is
registered as an investment adviser under the Investment Advisers Act of
1940,
as amended (the “Advisers Act”); and
WHEREAS,
the Company desires to retain the Manager to provide investment advisory
and
related administrative services to each of the Portfolios, and the Manager
is
willing to provide or procure such services on the terms and conditions
hereinafter set forth; and
WHEREAS,
the Company entered into an Amended and Restated Management Agreement dated
as
of May 1, 2008 (the “Prior Agreement”); and
WHEREAS,
the parties hereto now desire to amend and restate the Prior Agreement to
reflect the effective date of the Agreement and the revised fee schedule;
and
WHEREAS,
this Agreement restates, in its entirety, the Prior Agreement; and
WHEREAS,
the parties to this Agreement acknowledge that the Agreement is not intended
to
materially change the services provided under the Prior Agreement;
NOW,
THEREFORE, the parties agree as follows:
ARTICLE
I. APPOINTMENT
A.
Appointment. The Company hereby appoints NYLIM to act as Manager to the
Portfolios for the period and on the terms set forth in this Agreement. The
Manager accepts such appointment and agrees to provide the advisory and
administrative services herein described, for the compensation herein
provided.
ARTICLE
II. ADVISORY SERVICES
A. Advisory
Duties of Manager. Subject to the supervision of the Board, the
Manager shall manage all aspects of the advisory operations of each Portfolio
and the composition of the portfolio of each Portfolio, including the purchase,
retention and disposition of securities therein, in accordance with the
investment objectives, policies and restrictions of the Portfolio, as stated
in
the currently effective Prospectus (as hereinafter defined); in conformity
with
the Articles of Incorporation and By-Laws (each as hereinafter defined) of
the
Company; under the instructions and directions of the Directors of the Company;
and in accordance with the applicable provisions of the 1940 Act and the
rules
and regulations thereunder, the provisions of the Internal Revenue Code of
1986,
as amended (the “Code”), relating to regulated investment companies and all
rules and regulations thereunder, and all other applicable federal and state
laws and regulations. In connection with the services provided under
this Agreement, the Manager will use its best efforts to manage each Portfolio
so that it will qualify as a regulated investment company under Subchapter
M of
the Code and regulations issued thereunder, and will comply with the
diversification requirements of Section 817(h) of the Code and the regulations
issued thereunder, and any other rules and regulations applicable to investment
vehicles underlying variable annuity contracts or variable life insurance
policies. In managing each Portfolio in accordance with the
requirements set out in this Section, the Manager will be entitled to receive
and act upon advice of counsel for the Company or a Portfolio.
1. Portfolio
Management. The Manager will determine the securities and other
instruments to be purchased, sold or entered into by each Portfolio and place
orders with broker-dealers, foreign currency dealers, futures commission
merchants or others pursuant to the Manager’s determinations and all in
accordance with each Portfolio’s policies as set out in the Prospectus of the
Portfolio or as adopted by the Board and disclosed to the
Manager. The Manager will determine what portion of each Portfolio
will be invested in securities and other assets and what portion, if any,
should
be held uninvested in cash or cash equivalents. Each Portfolio will
have the benefit of the investment analysis and research, the review of current
economic conditions and trends and the consideration of long-range investment
policy generally available to the Manager’s investment advisory
clients.
2. Selection
of Brokers. Subject to the policies established by, and any direction
from, the Board, the Manager will be responsible for selecting the brokers
or
dealers that will execute the purchases and sales for a Portfolio. The Manager
will place orders pursuant to its determination with or through such persons,
brokers or dealers (including NYLIFE Securities Inc.) in conformity with
the
policy with respect to brokerage as set forth in the Company’s Registration
Statement or as the Board may direct from time to time. It is
recognized that, in providing the Portfolios with investment supervision
or the
placing of orders for Portfolio transactions, the Manager will give primary
consideration to securing the most favorable price and efficient
execution. Consistent with this policy, the Manager may consider the
financial responsibility, research and investment information and other services
provided by brokers or dealers who may effect or be a party to any such
transaction or other transactions to which other clients of the Manager may
be a
party. It is understood that neither the Portfolios, the Company nor
the Manager has adopted a formula for allocation of the Portfolios’ investment
transaction business. It is also understood that it is desirable for
the Portfolios that the Manager have access to supplemental investment and
market research and security and economic analyses provided by certain brokers
who may execute brokerage transactions at a higher cost to the Portfolios
than
may result when allocating brokerage to other brokers on the basis of seeking
the most favorable price and efficient execution. Therefore, the
Manager or any subadvisor is authorized to place orders for the purchase
and
sale of securities for the Portfolios with such certain brokers, subject
to
review by the Company’s Directors from time to time with respect to the extent
and continuation of this practice. It is understood that the services
provided by such brokers may be useful to the Manager or any subadvisor in
connection with its services to other clients.
Subject
to the foregoing, it is understood that the Manager will not be deemed to
have
acted unlawfully, or to have breached a fiduciary duty to the Company or
be in
breach of any obligation owing to the Company under this Agreement, or
otherwise, solely by reason of its having directed a securities transaction
on
behalf of a Portfolio to a broker-dealer in compliance with the provisions
of
Section 28(e) of the Securities Exchange Act of 1934, and the rules and
interpretations of the Securities and Exchange Commission (“SEC”) thereunder, or
as otherwise permitted from time to time by a Portfolio’s Prospectus.
On
occasions when the Manager deems the purchase or sale of a security to be
in the
best interest of the Portfolios as well as other clients, the Manager, to
the
extent permitted by applicable laws and regulations, may, but shall be under
no
obligation to, aggregate the securities to be so sold or purchased in order
to
obtain the most favorable price or lower brokerage commissions and efficient
execution. In such event, allocation of the securities so purchased
or sold, as well as expenses incurred in the transaction, will be made by
the
Manager in the manner it considers to be the most equitable and consistent
with
its fiduciary obligations to the Portfolios and to such other clients.
3. Delegation
of Investment Advisory Services. Subject to the prior approval of a
majority of the members of the Board, including a majority of the Board who
are
not “interested persons” and, to the extent required by applicable law, by the
shareholders of a Portfolio, the Manager may, through a subadvisory agreement
or
other arrangement, delegate to a subadvisor any of the duties enumerated
in this
Agreement, including the management of all or a portion of the assets being
managed. Subject to the prior approval of a majority of the members
of the Board, including a majority of the Board who are not “interested persons”
and, to the extent required by applicable law, by the shareholders of a
Portfolio, the Manager may adjust such duties, the portion of assets being
managed, and the fees to be paid by the Manager; provided, that in each case
the
Manager will continue to oversee the services provided by such company or
employees and any such delegation will not relieve the Manager of any of
its
obligations under this Agreement.
The
Company and Manager understand and agree that the Manager may manage a Portfolio
in a “manager-of-managers” style with either a single or multiple subadvisors,
which contemplates that the Manager will, among other things and pursuant
to an
Order issued by the SEC: (i) continually evaluate the
performance of each Subadvisor to a Portfolio, if applicable, through
quantitative and qualitative analysis and consultations with such Subadvisor;
(ii) periodically make recommendations to the Board as to whether the
contract with one or more Subadvisors should be renewed, modified, or
terminated; and (iii) periodically report to the Board regarding the
results of its evaluation and monitoring functions. The Company
recognizes that a Subadvisor’s services may be terminated or modified pursuant
to the “manager-of-managers” process, and that the Manager may appoint a new
Subadvisor for a Subadvisor that is so removed.
4. Instructions
to Custodian. The Manager or any subadvisor shall provide the
Company’s custodian on each business day with information relating to the
execution of all portfolio transactions pursuant to standing
instructions.
5. Valuation. The
Manager will provide assistance to the Board in valuing the securities and
other
instruments held by each Portfolio, to the extent reasonably required by
such
valuation policies and procedures as may be adopted by each
Portfolio.
B. Books
and
Records. The Manager further agrees to preserve for the periods
prescribed by Rule 31a-2 as promulgated by the SEC under the 1940 Act any
such
records as are required to be maintained by the Manager. The Manager
shall render to the Company’s Directors such periodic and special reports as the
Directors may reasonably request.
C. Advisory
Services Not Exclusive. The Manager’s services to the Company and
each Portfolio pursuant to this Agreement are not exclusive and it is understood
that the Manager may render investment advice, management and services to
other
persons (including other investment companies) and engage in other activities,
so long as its services under this Agreement are not impaired by such other
activities. It is understood and agreed that officers or directors of
the Manager are not prohibited from engaging in any other business activity
or
from rendering services to any other person, or from serving as partners,
officers, trustees or directors of any other firm, trust or corporation,
including other investment companies. Whenever a Portfolio and one or
more other accounts or investment companies advised by the Manager have
available funds for investment, investments suitable and appropriate for
each
will be allocated in accordance with procedures believed by the Manager to
be
equitable to each entity over time. Similarly, opportunities to sell
securities will be allocated in a manner believed by the Manager to be equitable
to each entity over time. The Company and each Portfolio recognize
that in some cases this procedure may adversely affect the size of the position
that may be acquired or disposed of for a Portfolio.
ARTICLE
III. ADMINISTRATIVE SERVICES
A. Administrative
Duties of Manager. The Manager
shall: (i) furnish the Portfolios with office facilities;
(ii) be responsible for the financial and accounting records required to be
maintained by the Portfolios (excluding those being maintained by the
Portfolios’ custodian and transfer agent except as to which the Manager has
supervisory functions) and other than those being maintained by the Portfolios’
subadvisor, if any; and (iii) furnish the Portfolios with board materials,
ordinary clerical, bookkeeping and recordkeeping services at such office
facilities, and such other services as the parties may agree. The
Manager will also monitor each Portfolio’s compliance with its investment and
tax guidelines and other compliance policies.
1. Instructions
to
Custodian. The Manager or any sub-administrator shall provide
the Company’s custodian on each business day with information relating to the
execution of all portfolio transactions pursuant to standing
instructions.
2. Books
and
Records. The Manager shall keep the Portfolios’ books and records
required to be maintained by it. The Manager agrees that all records
which it maintains for the Portfolios are the property of the Portfolios,
and it
will surrender promptly to the Portfolios any of such records upon the
Portfolios’ request. Moreover, the Manager shall maintain all books
and records with respect to the Portfolios’ securities transactions required by
sub-paragraphs (b)(5), (6), (9) and (10) and paragraph (f) of Rule 31a-1
under
the 1940 Act and any other books and records required to be maintained by it
under the 1940 Act and the rules thereunder. The Manager shall render
to the Company’s Directors such periodic and special reports as the Directors
may reasonably request.
3. Administrative
Services Not Exclusive. The Manager’s services to the Company and
each Portfolio pursuant to this Agreement are not exclusive and it is understood
that the Manager may render administrative services to other persons and
to
engage in other activities, so long as its services under this Agreement
are not
impaired by such other activities. It is understood and agreed that
officers or directors of the Manager may serve as officers or Directors of
the
Company, and that officers or Directors of the Company may serve as officers
or
directors of the Manager to the extent permitted by law; and that the officers
and directors of the Manager are not prohibited from engaging in any other
business activity or from rendering services to any other person, or from
serving as partners, officers, trustees or directors of any other firm, trust
or
corporation, including other investment companies.
4. Delegation
of Administration Services. With respect to any or all series of the
Company, including the Portfolios, the Manager may enter into one or more
contracts “Sub-Administration Contract”) with a sub-administrator in which the
Manager delegates to such sub-administrator any or all its duties specified
in
this Agreement, provided that the Sub-Administration Contract meets all
applicable requirements of the 1940 Act and rules thereunder, as
applicable. The Manager will at all times maintain responsibility for
providing the administration services, and will supervise any
sub-administrator.
5. Valuation. The
Manager will provide assistance to the Board in valuing the securities and
other
instruments held by each Portfolio, to the extent reasonably required by
such
valuation policies and procedures as may be adopted by each
Portfolio.
ARTICLE
IV. EXPENSES
A. Expenses
Borne by Manager.
1. In
connection with the services rendered by the Manager under this Agreement,
the
Manager will bear all of the following expenses:
(i) The
salaries and expenses of all personnel of the Company and the Manager, except
the fees and expenses of Directors who are not interested persons of the
Manager
or of the Company, and the salary (or a portion thereof) of the Company’s Chief
Compliance Officer that the Board approves for payment by the Portfolios;
and
(ii) All
expenses incurred by the Manager in connection with managing the investment
operations of the Portfolios other than those assumed by the Company, Portfolio
or Administrator of the Portfolio or the Company or other third party under
a
separate agreement.
2. The
Manager will not be required to pay expenses of any activity which is primarily
intended to result in sales of Shares if and to the extent
that: (i) such expenses are required to be borne by a principal
underwriter that acts as the distributor of the Portfolio's Shares pursuant
to
an underwriting agreement that provides that the underwriter will assume
some or
all of such expenses; or (ii) the Company on behalf of the Portfolio will
have adopted a plan in conformity with Rule 12b-1 under the 1940 Act providing
that the Portfolio (or some other party) will assume some or all of such
expenses. The Manager will pay such sales expenses only to the extent
they are not required to be paid by the principal underwriter pursuant to
the
underwriting agreement or are not permitted to be paid by a Portfolio (or
some
other party) pursuant to such a plan.
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A.
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Expenses
Borne by the Company/Portfolio.
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1. Each
Portfolio assumes and will pay its expenses, including but not limited to
those
described below (where any such category applies to more than one series
of the
Company, the Portfolio shall be liable only for its allocable portion of
the
expenses):
(i) The
fees
of any investment adviser or expenses otherwise incurred by the Company in
connection with the management of the investment and reinvestment of the
assets
of the Portfolios;
(ii) Brokers’
commissions and any issue or transfer taxes chargeable to the Company in
connection with its securities transactions on behalf of the
Portfolios;
(iii) Litigation
and indemnification expenses and other extraordinary expenses not incurred
in
the ordinary course of the Company’s business;
(iv) The
fees
and expenses of Directors who are not interested persons of the Manager of
any
investment adviser, and the salary (or a portion thereof) of the Company’s Chief
Compliance Officer that the Board approves for payment by the
Portfolios;
(v) The
fees
and expenses of the Portfolios’ Custodian which relate
to: (a) the custodial function and the recordkeeping connected
therewith; (b) the preparation and maintenance of the general required
accounting records of the Portfolios not being maintained by the Manager;
(c) the pricing of the Portfolio’s Shares, including the cost of any
pricing service or services which may be retained pursuant to the authorization
of the Directors of the Company; and (d) for both mail and wire orders, the
cashiering function in connection with the issuance and redemption of the
Portfolios’ Shares;
(vi) The
fees
and expenses of the Portfolios’ transfer and dividend disbursing agent, which
may be a custodian of the Portfolios, which relate to the maintenance of
each
shareholder account;
(vii) The
charges and expenses of legal counsel (including an allocable portion of
the
cost of maintaining an internal legal department (provided pursuant to a
separate legal services agreement) and compliance department) and independent
accountants for the Company;
(viii) All
taxes
and business fees payable by the Portfolios to federal, state or other
governmental agencies;
(ix) The
fees
of any trade association of which the Company may be a member;
(x) The
cost
of share certificates representing the Portfolios’ shares;
(xi) The
cost
of fidelity, Directors and officers and errors and omissions
insurance;
(xii) Allocable
communications expenses with respect to investor services and all expenses
of
shareholders’ and Directors meetings and of preparing, printing and mailing
prospectuses, proxies and other reports to shareholders in the amount necessary
for distribution to the shareholders;
(xiii) The
fees
and expenses involved in registering and maintaining registrations of the
Company and of its Shares with the SEC, registering the Company 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;
(xiv) The
Company hereby agrees to reimburse the Manager for the organization expenses
of,
and the expenses incurred in connection with, the initial offering of any
new
share classes of a Portfolio or the initial offering of a new series of the
Company.
ARTICLE
V. COMPENSATION
A. Compensation. For
the services provided and the facilities furnished pursuant to this Agreement,
the Company will pay to the Manager as full compensation therefor a fee at
the
annual rate for each Portfolio as set forth on Schedule A. This fee
will be computed daily and will be paid to the Manager monthly. This
fee will be chargeable only to the applicable Portfolio, and no other series
of
the Company shall be liable for the fee due and payable
hereunder. The Portfolios shall not be liable for any expense of any
other series of the Company.
The
Manager may from time to time agree not to impose all or a portion of its
fee
otherwise payable under this Agreement and/or undertake to pay or reimburse
a
Portfolio for all or a portion of its expenses not otherwise required to
be paid
by or reimbursed by the Manager. Unless otherwise agreed, any fee
reduction or undertaking may be discontinued or modified by the Manager at
any
time. For the month and year in which this Agreement becomes
effective or terminates, there will be an appropriate pro ration of any fee
based on the number of days that the Agreement is in effect during such month
and year, respectively.
ARTICLE
VI. ADDITIONAL OBLIGATIONS OF THE PORTFOLIOS/COMPANY
A. Documents. The
Company has delivered to the Manager copies of each of the following documents
and will deliver to it all future amendments and supplements, if
any:
1. 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, is herein called the “Articles of Incorporation”);
2. 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”);
3. Certified
Resolutions of the Directors of the Company authorizing the appointment of
the
Manager and approving the form of this Agreement;
4. Registration
Statement under the 1940 Act and the Securities Act of 1933, as amended,
on Form
N-1A (the “Registration Statement”), as filed with the SEC, relating to the
Portfolios and the Portfolios’ Shares and all amendments thereto;
5. Notification
of Registration of the Company under the 1940 Act on Form N-8A as filed with
the
SEC and all amendments thereto; and
6. The
form
of Prospectus and Statement of Additional Information of the Company pursuant
to
which the Portfolios’ shares are offered for sale to the public (such Prospectus
and Statement of Additional Information, as currently in effect and as amended
or supplemented from time to time, being herein called collectively the
“Prospectus”).
B. Company
Materials. During the term of this Agreement, the Company agrees to
furnish the Manager at its principal office all prospectuses, proxy statements,
reports to shareholders, sales literature or other material prepared for
distribution to shareholders of the Portfolios or to the public, which refer
to
the Manager in any way, prior to use thereof and, not to use such material
if
the Manager reasonably objects in writing within five (5) business days (or
such
other time as may be mutually agreed) after receipt thereof. In the
event of termination of this Agreement, the Company will continue to furnish
to
the Manager copies of any of the above-mentioned materials that refer in
any way
to the Manager. The Company shall furnish or otherwise make available
to the Manager such other information relating to the business affairs of
the
Portfolios as the Manager at any time, or from time to time, reasonably requests
in order to discharge its obligations hereunder.
S:\OGC\MainStay
VP Series Fund\Form N-SAR\2008\Exhibit 77Q-1- 12-31-08 MSVP AMENDED
AND RESTATED
MANAGEMENT AGMT FOR 13 PORTFOLIOS.doc
ARTICLE
VII. LIMITATION OF LIABILITY OF MANAGER
A. Limitation
of Liability of Manager.
1. As
an
inducement to the Manager undertaking to provide services to the Company
and
each Portfolio pursuant to this Agreement, the Company and each Portfolio
agrees
that the Manager will not be liable under this Agreement for any error of
judgment or mistake of law or for any loss suffered by the Company or a
Portfolio in connection with the matters to which this Agreement relates,
provided that nothing in this Agreement will be deemed to protect or purport
to
protect the Manager against any liability to the Company, a Portfolio or
its
shareholders to which the Manager 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.
2. The
rights of exculpation provided under this Section are not to be construed
so as
to provide for exculpation of any person described in this Section for any
liability (including liability under U.S. federal securities laws that, under
certain circumstances, impose liability even on persons that act in good
faith)
to the extent (but only to the extent) that exculpation would be in violation
of
applicable law, but will be construed so as to effectuate the applicable
provisions of this Section to the maximum extent permitted by applicable
law.
ARTICLE
IX. MISCELLANEOUS
A. Manager
Personnel. The Manager shall authorize and permit any of its
directors, officers and employees who may be elected or appointed as Directors
or officers of the Company to serve in the capacities in which they are elected
or appointed. Services to be furnished by the Manager under this
Agreement may be furnished through the medium of any of such directors,
officers, or employees. The Manager shall make its directors,
officers and employees available to attend Company Board meetings as may
be
reasonably requested by the Board from time to time. The Manager
shall prepare and provide such reports on the Portfolios and their operations
as
may be reasonably requested by the board from time to time. The
Manager shall implement Board-approved proxy voting policies and procedures,
and
shall respond to corporate actions taken by issuers of the Portfolio’s portfolio
holdings consistent with its fiduciary duty to the Portfolios.
B. Duration
and Termination. This Agreement shall continue in effect with respect
to the Portfolios for a period of more than two (2) years from the date hereof
following shareholder approval, as necessary, and thereafter only so long
as
such continuance is specifically approved at least annually with respect
to the
Portfolios in conformity with the requirements of the 1940 Act and the Rules
thereunder and any applicable SEC or SEC staff guidance or
interpretation. This Agreement shall continue in effect with respect
to the Portfolios for a period of more than one (1) year from the date hereof
in
circumstances when shareholder approval is not required, and thereafter only
so
long as such continuance is specifically approved at least annually with
respect
to the Portfolios in conformity with the requirements of the 1940 Act and
the
Rules thereunder and any applicable SEC or SEC staff guidance or
interpretation. However, this Agreement may be terminated with
respect to the Portfolios at any time, without the payment of any penalty,
by
the Directors of the Company or by vote of a majority of the outstanding
voting
securities (as defined in the 1940 Act) of the Portfolios, or by the Manager
at
any time, without the payment of any penalty, on not more than sixty (60)
days’
nor less than thirty (30) days’ written notice to the other
party. This Agreement shall terminate automatically in the event of
its assignment (as defined in the 1940 Act).
C. Additional
Series. In the event the Company establishes one or more Portfolios
after the effective date of this Agreement, such Portfolios will become
Portfolios under this Agreement upon approval of this Agreement by the Board
with respect to the Portfolios and the execution of an amended Schedule A
reflecting the Portfolios.
D. Independent
Contractor. Except as otherwise provided herein or authorized by the
Board from time to time, the Manager shall for all purposes herein be deemed
to
be an independent contractor and shall have no authority to act for or represent
the Portfolios or the Company in any way or otherwise be deemed an agent
of the
Portfolios or the Company.
E. Amendment. This
Agreement may be amended in writing by mutual consent, but the consent of
the
Portfolios, if required, must be obtained in conformity with the requirements
of
the 1940 Act and the Rules thereunder.
F. 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: Secretary; or (2) to the Company at ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: President.
G. Governing
Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
H. Use
of
Name. The Portfolios may use any name including the word MainStay
only for so long as this Agreement or any other agreement between the Managers
or any other affiliate of New York Life Insurance Company and the Company
or any
extension, renewal or amendment thereof remains in effect, including any
similar
agreement with any organization which shall have succeeded to the Manager’s
business as investment adviser and/or administrator. At such time as
such an agreement shall no longer be in effect, each Portfolio will (to the
extent that it lawfully can) cease to use such name or any other name indicating
that it is advised by or otherwise connected with the Manager or any
organization that shall have so succeeded to its respective
business.
I. Captions
and Headings. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
J. Severability. 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.
K. Interpretation
of Law. As used in this Agreement, terms shall have the same
meaning as such terms have in the 1940 Act. Where the effect of a
requirement of the federal securities laws reflected in any provision of
this
Agreement is made less restrictive by a rule, regulation or order of the
SEC,
whether of special or general application, such provision shall be deemed
to
incorporate the effect of such rule, regulation or order.
*
* *
IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
by their officers designated below as of the 1st
day of
August, 2008. This Agreement may be signed in counterparts.
NEW
YORK
LIFE INVESTMENT MANAGEMENT LLC
Attest:
By:
Name:
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Title:
Executive Vice President
MAINSTAY
VP SERIES FUND, INC.
Attest:
By:
Name:
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Title:
President
S:\OGC\MainStay
VP Series Fund\Form N-SAR\2008\Exhibit 77Q-1- 12-31-08 MSVP AMENDED
AND RESTATED
MANAGEMENT AGMT FOR 13 PORTFOLIOS.doc
SCHEDULE
A
(Effective
as of August 1, 2008 through August 1, 2009)
For
all
services rendered by the Manager hereunder, the below named Portfolios of
the
Company shall pay the Manager and the Manager agrees to accept as full
compensation for all services rendered hereunder, at annual fee equal to
the
following:
|
Portfolio
|
Annual
Rate*
|
|
Bond
Portfolio
|
0.500%
up to $500 million;
0.475%
from $500 million to $1 billion; and
0.450%
in excess of $1 billion
|
|
Capital
Appreciation Portfolio
|
0.610%
up to $1 billion;
0.500%
in excess of $1 billion
|
|
Cash
Management Portfolio
|
0.450%
up to $500 million;
0.400%
from $500 million to $1
billion; and
0.350%
in excess of $1
billion
|
|
Common
Stock Portfolio
|
0.550%
up to $500 million;
0.525%
from $500 million to $1 billion; and
0.500%
in excess of $1 billion
|
|
Convertible
Portfolio
|
0.600%
up to $1 billion; and
0.500%
in excess of $1 billion.
|
|
Developing
Growth Portfolio
|
0.800%
up to $200 million;
0.750%
from $200 million to $500 million; 0.725% from $500 million to
$1 billion; and 0.700% in excess of $1 billion
|
|
Government
Portfolio
|
0.500%
up to $500 million;
0.475%
from $500 million to $1 billion; and
0.450%
in excess of $1 billion
|
|
High
Yield Corporate Bond Portfolio
|
0.570%
up to$1 billion;
0.550%
from $1 billion to $5 billion; and 0.525% in excess of $5 billion
|
|
ICAP
Select Equity Portfolio
|
0.800%
up to $250 million;
0.750%
from $250 million to $1 billion; and 0.740% in excess of $1 billion
|
|
International
Equity Portfolio
|
0.890%
up to $500 million; and
0.850%
in excess of $500 million
|
|
Large
Cap Growth Portfolio
|
0.750%
up to $500 million;
0.725%
from $500 million to $1 billion; and 0.700% in excess of $1 billion
|
|
S&P
500 Index Portfolio
|
0.300%
up to $1 billion;
0.275%
from $1 billion to $2 billion;
0.265%
from $2 billion to $3 billion; and 0.250% on assets over $3 billion
|
|
Total
Return Portfolio
|
0.570%
up to $1 billion; and
0.550%
in excess of $1 billion
|
(Effective
as of May 1, 2008 through May 1, 2010
as
approved by the Portfolios’ shareholders on March 17, 2008)
For
all
services rendered by the Manager hereunder, the below named Portfolios of
the
Company shall pay the Manager and the Manager agrees to accept as full
compensation for all services rendered hereunder, at annual fee equal to
the
following:
|
Portfolio
|
Annual
Rate*
|
|
Balanced
Portfolio
|
0.75%
up to
$1 billion; and
0.70%
in excess of
$1
billion
|
|
Conservative
Allocation
|
0.00%
|
|
Floating
Rate Portfolio
|
0.60%
|
|
Growth
Allocation Portfolio
|
0.00%
|
|
Mid
Cap Core Portfolio
|
0.85%
up to $1 billion; and
0.80%
in excess of $1 billion
|
|
Mid
Cap Growth Portfolio
|
0.75%
up to $500 million; and
0.70%
in excess of $500 million
|
|
Mid
Cap Value Portfolio
|
0.70%
up to $500 million; and
0.65%
in excess of $500 million
|
|
Moderate
Allocation Portfolio
|
0.00%
|
|
Moderate
Growth Allocation Portfolio
|
0.00%
|
|
Small
Cap Growth Portfolio
|
0.90%
up to $1 billion; and
0.85%
in excess of $1 billion
|
|
·
|
Of
each
Portfolio’s average daily net assets.
|
::ODMA\PCDOCS\OGCDOCS\225713\1
MAINSTAY
VP SERIES FUND, INC.
AMENDED
AND RESTATED SUBADVISORY AGREEMENT
This
Amended and Restated Subadvisory Agreement, made as of the 1st
day of
August, 2008 (the “Agreement”), between New York Life Investment Management LLC,
a Delaware limited liability company (the “Manager”) and MacKay ▇▇▇▇▇▇▇ LLC, a
Delaware limited liability company (the “Subadvisor”).
WHEREAS,
MainStay VP Series Fund, 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 entered into the Amended and Restated Management Agreement dated
August 1, 2008 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 MacKay ▇▇▇▇▇▇▇ 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 Title 18, United States 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.
(i)
The Subadvisor is authorized to retain legal counsel and financial advisors
and
to negotiate and execute documentation relating to investments in the Allocated
Assets or Series, at the expense of the Allocated Assets or Series. Such
documentation may relate to investments to be made or sold, currently held
or
previously held. The authority shall include, without limitation:
(i) documentation relating to private placements and bank debt;
(ii) waivers, consents, amendments or other modifications relating to
investments; and (iii) purchase agreements, sales agreements, commitment
letters, pricing letters, registration rights agreements, indemnities and
contributions, escrow agreements and other investment related
agreements. Manager represents that the Allocated Assets or Series
can settle such private placements.
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 caps 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 (including an allocable portion
of the
cost of maintaining internal legal (provided pursuant to a separate legal
services agreement) and compliance department) 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 1940 Act) 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 1940 Act) 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 1940 Act) 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 name MainStay VP Series Fund or any derivative
thereof
or logo associated with that name is the valuable property of the Manager
and/or
its affiliates, and that the Subadvisor has the right to use such name (or
derivative or logo) 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 name (or derivative or logo).
(b)
It is understood that the name MacKay ▇▇▇▇▇▇▇ LLC or any derivative thereof
or
logo associated with that name, are 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
MacKay ▇▇▇▇▇▇▇ 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 16 of this Agreement, this Agreement
may
only be assigned by any party with the prior written consent of the other
parties;
(d)
If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall
not
be affected thereby, and to this extent, the provisions of this Agreement
shall
be deemed to be severable;
(e)
Nothing herein shall be construed as constituting the 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
August, 2008. This Agreement may be signed in counterparts.
NEW
YORK
LIFE INVESTMENT MANAGEMENT LLC
Attest:
By:____________________________
Name:
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Title:
Executive Vice President
MACKAY
▇▇▇▇▇▇▇ LLC
Attest:
By:
Name:
Name:
Title:
Title:
::ODMA\PCDOCS\OGCDOCS\225713\1
SCHEDULE
A
(As
of
August 1, 2008)
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:
|
PORTFOLIO
NAME
|
ANNUAL
RATE
|
|
Capital
Appreciation Portfolio
|
0.305%
up to $1 billion; and
0.250%
in excess of $1 billion
|
|
Cash
Management Portfolio
|
0.225%
up to $500 million;
0.200%
from $500 million up to $1 billion; and
0.175%
in excess of $1 billion
|
|
Convertible
Portfolio
|
0.300%
up to $1 billion; and
0.250%
in excess of $1 billion
|
|
Government
Portfolio
|
0.250%
up to $500 million;
0.2375%
from $500 million up to $1 billion; and
0.225%
in excess of $1 billion
|
|
High
Yield Corporate Bond Portfolio
|
0.285%
up to $1 billion;
0.275%
from $1 billion up to $5 billion; and
0.2625%
in excess of $5 billion
|
|
International
Equity Portfolio
|
0.445%
up to $500 million; and
0.425%
in excess of $500 million
|
|
Mid
Cap Growth Portfolio
|
0.375%
up to $500 million; and
0.350%
in excess of $500 million
|
|
Mid
Cap Value Portfolio
|
0.350%
up to $500 million; and
0.325%
in excess of $500 million
|
|
Small
Cap Growth Portfolio
|
0.450%
up to $1 billion; and
0.425%
in excess of $1 billion
|
|
Total
Return Portfolio
|
0.285%
up to $1 billion; and
0.275%
in excess of $1 billion
|
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.
|
::ODMA\PCDOCS\OGCDOCS\225713\1
MAINSTAY
VP SERIES FUND, INC.
AMENDED
AND RESTATED SUBADVISORY AGREEMENT
This
Amended and Restated Subadvisory Agreement, made as of the 1st
day of
August, 2008 (the “Agreement”), between New York Life Investment Management LLC,
a Delaware limited liability company (the “Manager”) and Institutional Capital
LLC, a Delaware limited liability company (the “Subadvisor”).
WHEREAS,
MainStay VP Series Fund, 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 entered into the Amended and Restated Management Agreement dated
August 1, 2008 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 Institutional Capital 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 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 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
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 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 Title 18, United States 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.
(i)
The Subadvisor is authorized to retain legal counsel and financial advisors
and
to negotiate and execute documentation relating to investments in the Allocated
Assets or Series, at the expense of the Allocated Assets or Series. Such
documentation may relate to investments to be made or sold, currently held
or
previously held. The authority shall include, without limitation:
(i) documentation relating to private placements and bank debt;
(ii) waivers, consents, amendments or other modifications relating to
investments; and (iii) purchase agreements, sales agreements, commitment
letters, pricing letters, registration rights agreements, indemnities and
contributions, escrow agreements and other investment related
agreements. Manager represents that the Allocated Assets or Series
can settle such private placements.
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 caps 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, 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 (including an allocable portion
of the
cost of maintaining internal legal (provided pursuant to a separate legal
services agreement) and compliance department) 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 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.
15.
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.
16.
Duration and Termination. This Agreement shall become effective on the date
first indicated above. Unless terminated as provided herein, the Agreement
shall
remain in full force and effect for 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 or by the vote
of a majority of the outstanding voting securities (as defined in the 1940
Act)
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 1940 Act) 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 1940 Act) 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,
15, and
18 of this Agreement shall remain in effect, as well as any applicable provision
of this Section 16.
17.
Amendments. No provision of this Agreement may be changed, waived, discharged
or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination
is
sought, and no 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.
18.
Use of Name.
(a)
It is understood that the name MainStay, ICAP 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 Institutional Capital 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).
19.
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.
20.
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
Institutional Capital LLC, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: President.
21.
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 16 of this Agreement, this Agreement
may
only be assigned by any party with the prior written consent of the other
parties;
(d)
If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall
not
be affected thereby, and to this extent, the provisions of this Agreement
shall
be deemed to be severable;
(e)
Nothing herein shall be construed as constituting the 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
August, 2008. This Agreement may be signed in counterparts.
NEW
YORK
LIFE INVESTMENT MANAGEMENT LLC
Attest:
By:____________________________
Name:
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Title:
Executive Vice President
INSTITUTIONAL
CAPITAL LLC
Attest:
By:
Name:
Name:
Title:
Title:
::ODMA\PCDOCS\OGCDOCS\225916\1
SCHEDULE
A
(As
of
August 1, 2008)
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
|
|
ICAP
Select Equity Portfolio *
|
0.400%
up to $250 million;
0.375%
from $250 million to $1 billion; and
0.370%
in excess of $1 billion
|
The
portion of the fee based upon the average daily net assets of the respective
Fund shall be accrued daily at the rate of 1/365th
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, Institutional Capital LLC, as Subadvisor
for these Funds, has voluntarily agreed to waive or reimburse its fee
proportionately.
::ODMA\PCDOCS\OGCDOCS\228565\1
MAINSTAY
VP SERIES FUND, INC.
AMENDED
AND RESTATED SUBADVISORY AGREEMENT
This
Amended and Restated Subadvisory Agreement, made as of the 26th
day of
December, 2008 (the “Agreement”), between New York Life Investment Management
LLC, a Delaware limited liability company (the “Manager”) and ▇▇▇▇▇▇▇ Capital
Management, Inc., a Minnesota corporation (the “Subadvisor”) and subsidiary of
Nuveen Investments, Inc., a Delaware corporation.
WHEREAS,
MainStay VP Series Fund, 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 portfolios, each of which may
offer
a separate class of shares of beneficial interest, each portfolio having
its own
investment objective or objectives, policies and limitations; and
WHEREAS,
the Company currently offers shares in multiple portfolios, may offer shares
of
additional portfolios in the future, and intends to offer shares of additional
portfolios in the future; and
WHEREAS,
the Manager entered into the Amended and Restated Management Agreement dated
August 1, 2008 with the Company, on behalf of its portfolios, 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 portfolios 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; and
WHEREAS,
this Agreement amends and restates the Subadvisory Agreement between the
Manager
and the Subadvisor dated March 15, 2006;
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 ▇▇▇▇▇▇▇ Capital Management, Inc.
to act
as Subadvisor to the portfolios designated on Schedule A of this Agreement
(the
“Portfolio” or “Portfolios”) with respect to all or a portion of the assets of
the Portfolios 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 portfolios other than the Portfolios 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 portfolios shall become a Portfolio 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 Portfolios’ Allocated Assets and determine the
composition of the assets of the Portfolios’ 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 Portfolios’ Allocated Assets by
determining the securities and other investments that shall be purchased,
entered into, sold, closed or exchanged for the Portfolios, when these
transactions should be executed, and what portion of the Allocated Assets
of the
Portfolios 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 Portfolios. The Subadvisor
will provide the services under this Agreement in accordance with the
Portfolios’ 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 Portfolios need
to
be managed so as to permit the Portfolios 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 Portfolios 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 Portfolios or Company.
(d)
In connection with the purchase and sale of securities for the Portfolios,
the
Subadvisor will arrange for the transmission to the custodian and portfolio
accounting agent for the Portfolios, 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 Portfolios, as may be reasonably necessary to enable the
custodian and portfolio accounting agent to perform their administrative
and
recordkeeping responsibilities with respect to the Portfolios. With respect
to
portfolio securities to be purchased or sold through the Depository Trust
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 Portfolios 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 Portfolios’ 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 Portfolios and the
issuers and securities represented in the Portfolios’ Allocated Assets, and will
furnish the Company’s Board with respect to the Portfolios 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 Portfolios 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 Portfolios 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 Portfolios, 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 Title 18, United States 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 Portfolios’ 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 caps or fee
waivers for the Portfolios 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 Portfolios’ 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 Portfolios, 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 Portfolios 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 Portfolios 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 Portfolios 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 Portfolios
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 Portfolios, 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, 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 Portfolio which relate to: (i) the custodial
function and recordkeeping connected therewith; (ii) the maintenance of the
required accounting records of the Portfolios not being maintained by the
Manager; (iii) the pricing of the Portfolios’ 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 Portfolios’ 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
Portfolios;
(f)
all taxes and business fees payable by the Company or the Portfolios 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 Portfolios’ shares;
(i)
the fees and expenses involved in registering and maintaining registrations
of
the Company and of its Portfolios 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 Portfolios 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 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 Portfolio 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 Portfolio 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 Portfolios and
the
Portfolios’ 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 Portfolios.
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 Portfolios 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 Portfolios concerning the Subadvisor or the Portfolios
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 Portfolios and their 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 Portfolio 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 Portfolio, 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 Portfolios, 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
Portfolio, 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 director, 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 Portfolios, provided that such continuance is specifically
approved each year by: (a) the vote of a majority of the entire Board or by
the vote of a majority of the outstanding voting securities (as defined in
the
1940 Act) of the Portfolios; 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 1940 Act) 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 1940 Act) of a Portfolio shall
be
effective to continue this Agreement with respect to the Portfolios
notwithstanding: (i) that this Agreement has not been approved
by the holders of a majority of the outstanding shares of any other Portfolio;
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 Portfolio
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 Portfolio, 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 Portfolio 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 Portfolios; 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 name MainStay or any derivative thereof or logo
associated with that name is the valuable property of the Manager and/or
its
affiliates, and that the Subadvisor has the right to use such name (or
derivative or logo) only with the approval of the Manager and only so long
as
the Manager is Manager to the Company and/or the Portfolio. Upon termination
of
the Management Agreement between the Company and the Manager, the Subadvisor
shall forthwith cease to use such name (or derivative or logo).
(b)
It is understood that the name ▇▇▇▇▇▇▇ Capital Management, Inc. 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 Portfolio
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 Portfolio. 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
Portfolio 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 Portfolios. 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 Portfolios.
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
▇▇▇▇▇▇▇ Capital Management, Inc., 4720 IDS Tower, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 26th
day of
December, 2008. This Agreement may be signed in counterparts.
NEW
YORK
LIFE INVESTMENT MANAGEMENT LLC
Attest:
By:
_________________________
Name:
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Director
Title:
Executive Vice President
▇▇▇▇▇▇▇
CAPITAL MANAGEMENT, INC.
Attest:
By:
Name:
Name:
Title:
Title:
SCHEDULE
A
(As
of
December 26, 2008)
1.
Subadvisor shall provide services for the following portfolios of the
Company:
|
·
|
MainStay
VP Large Cap Growth Portfolio
|
2.
Subadvisor shall be paid:
0.40%
of
the average daily net asset value of all Subadvisor-serviced investment company
assets managed by the Manager, including portfolios of the Company, up to
$250
million;
0.35%
of
the average daily net asset value of all Subadvisor-serviced investment company
assets managed by the Manager, including portfolios of the Company, from
$250
million to $500 million;
0.30%
of
the average daily net asset value of all Subadvisor-serviced investment company
assets managed by the Manager, including portfolios of the Company, from
$500
million to $750 million;
0.25%
of
the average daily net asset value of all Subadvisor-serviced investment company
assets managed by the Manager, including portfolios of the Company, from
$750
million to $1 billion; and
0.20%
of
the average daily net asset value of all Subadvisor-serviced investment company
assets managed by the Manager, including portfolios of the Company, in excess
of
$1 billion.
A-
S:\OGC\MainStay
VP Series Fund\Form N-SAR\2008\Exhibit 77Q-1- 12-31-08 MSVP AMENDED
AND RESTATED
MANAGEMENT AGMT FOR 13 PORTFOLIOS.doc