EXHIBIT (D)(8)
SUB-ADVISORY AGREEMENT
MAINSTAY VP SERIES FUND, INC.
SUB-ADVISORY AGREEMENT, made as of the 15th day of March, 2006 (the
"Agreement"), between New York Life Investment Management LLC, a Delaware
limited liability company (the "Manager"), on behalf of MainStay VP Series Fund,
Inc. (the "Fund"), and Xxxxxxx Capital Management, Inc., a Minnesota corporation
(the "Subadvisor").
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end, management investment
company; and
WHEREAS, the Fund is authorized to issue separate series, each of which
may offer a separate class of shares, each series having its own investment
objective or objectives, policies, and limitations; and
WHEREAS, the Fund 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 a Management Agreement, dated the
15th day of May, 2001, with the Fund, on behalf of each Series of the Fund,
which may be amended from time to time (collectively the "Management
Agreement"); and
WHEREAS, under the Management Agreement, the Manager has agreed to
provide certain investment advisory and related administrative services to the
Fund; 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 Fund, 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 Fund, the Manager,
and the Subadvisor as follows:
1. Appointment. The Manager hereby appoints Xxxxxxx Capital Management,
Inc. to act as Subadvisor to the series designated on Schedule A of this
Agreement (the "Series") for the periods and on the terms set forth in this
Agreement. The Subadvisor accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided.
In the event the Fund designates one or more series other than the
Series with respect to which the Fund and the Manager wish to retain the
Subadvisor to render investment advisory services hereunder, they shall notify
the Subadvisor in writing. If the Subadvisor is willing to render such
services, it shall notify the Fund and Manager in writing, whereupon such series
shall become a Series hereunder, and be subject to this Agreement.
2. Portfolio Management Duties. Subject to the supervision of the
Fund's Board of Directors and the Manager, the Subadvisor will provide a
continuous investment program for the Series' portfolio and determine the
composition of the assets of the Series' portfolio, including determination of
the purchase, retention, or sale of the securities, cash, and other investments
contained in the portfolio. The Subadvisor will provide investment research and
conduct a continuous program of evaluation, investment, sales, and reinvestment
of the Series' assets by determining the securities and other investments that
shall be purchased, entered into, sold, closed, or exchanged for the Series,
when these transactions should be executed, and what portion of the assets of
the Series should be held in the various securities and other investments in
which it may invest, and the 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 Fund's
Registration Statement filed with the Securities and Exchange Commission (the
"Commission"), as amended, and all policies and procedures of the Fund, copies
of which shall be sent to the Subadvisor by the Manager. The Subadvisor further
agrees as follows:
(a) The Subadvisor will take all steps necessary to manage the Series
so that it will qualify as a regulated investment company under Subchapter M of
the Internal Revenue Code.
(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 Fund's Board of Directors
of which the Subadvisor has received a copy, and the provisions of the
Registration Statement of the Fund under the Securities Act of 1933, as amended
(the "1933 Act"), and the 1940 Act, as supplemented or amended, of which the
Subadvisor has received a copy.
(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 is fair and
equitable in the judgment of the Subadvisor in the exercise of its fiduciary
obligations to the Fund and to such other clients, subject to review by the
Manager and the Board of Directors.
(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 Trust and
Clearing Corporation, the Subadvisor will arrange for the automatic
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transmission of the confirmation of such trades to the Fund's custodian and
portfolio accounting agent.
(e) The Subadvisor will monitor on a daily basis the determination by
the portfolio accounting agent for the Fund of the valuation of portfolio
securities and other investments of the Series. The Subadvisor will assist the
custodian and portfolio accounting agent for the Fund in determining or
confirming, consistent with the procedures and policies stated in the
Registration Statement for the Fund, the value of any portfolio securities or
other 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 Fund 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 Fund) as are
necessary to assist the Fund 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 Fund are being conducted in a manner consistent
with applicable laws and regulations.
(g) The Subadvisor will provide reports to the Fund's Board of
Directors, for consideration at meetings of the Board, on the investment program
for the Series and the issuers and securities represented in the Series'
portfolio, and will furnish the Fund's Board of Directors 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 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 Fund's Board of Directors 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 Fund, the Manager, or
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 Fund 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 Fund assets:
(i) been convicted, in the last ten (10) years, of any felony
or misdemeanor arising out of conduct involving embezzlement, fraudulent
conversion, or misappropriation of funds or securities, involving violations of
Sections 1341, 1342, or 1343 of Xxxxx 00, Xxxxxx Xxxxxx Code, or involving the
purchase or sale of any security; or
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(ii) been found by any state regulatory authority, within the
last ten (10) years, to have violated or to have acknowledged violation of any
provision of any state insurance law involving fraud, deceit, or knowing
misrepresentation; or
(iii) been found by any federal or state regulatory
authorities, within the last ten (10) years, to have violated or to have
acknowledged violation of any provision of federal or state securities laws
involving fraud, deceit, or knowing misrepresentation.
3. Broker-Dealer Selection. The Subadvisor is responsible for decisions
to buy and sell securities and other investments for the Series' portfolio, 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
Fund, 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 Fund, by other aspects of the portfolio execution
services offered. Subject to such policies as the Board of Directors may
determine, and consistent with Section 28(e) of the Securities Exchange Act of
1934, as amended, 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 with the Fund'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 Commission, to its affiliated
broker-dealer, or to such brokers and dealers who also provide research or
statistical material, or other services, to the Series, the 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 Directors of the Fund, indicating the broker-dealers to which such
allocations have been made and the basis therefor.
4. Disclosure about Subadvisor. The Subadvisor has reviewed the
post-effective amendment to the Registration Statement for the Fund filed with
the Commission 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 agrees to notify the Manager promptly
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of any material changes in such information and to perform such review upon
request, in connection with updates to the Registration Statement. The
Subadvisor further represents and warrants that it is a duly registered
investment adviser under the Advisers Act and a duly registered investment
adviser in all states in which the Subadvisor is required to be registered.
5. 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
Fund shall be responsible for all the expenses of the Fund'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 Fund;
(b) the fees and expenses of each Series which relate to (A) the
custodial function and the recordkeeping connected therewith, (B) the
maintenance of the required accounting records of the Series not being
maintained by the Manager, (C) 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 Fund, and (D) 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 Fund'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 an internal legal and compliance
department) and independent accountants for the Fund;
(e) brokers' commissions and any issue or transfer taxes chargeable
to the Fund in connection with its securities transactions on behalf of the
Series;
(f) all taxes and business fees payable by the Fund or the Series
to federal, state or other governmental agencies;
(g) the fees of any trade association of which the Fund 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 Fund and of its Shares with the Commission, registering the
Fund as a broker or dealer, and qualifying its Shares under state securities
laws, including the preparation and printing of the Fund'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;
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(k) litigation and indemnification expenses and other extraordinary
expenses not incurred in the ordinary course of the Fund'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.
6. Compensation. For the services provided, the Manager will pay the
Subadvisor a fee, payable monthly, as described on Schedule A.
7. Seed Money. The Manager agrees that the Subadvisor shall not be
responsible for providing money for the initial capitalization of the Series.
8. Compliance.
(a) The Subadvisor agrees to assist the Manager and the Fund in
complying with the Fund's obligations under Rule 38a-1 under the 1940 Act,
including but not limited to: (a) periodically providing the Fund with
information about, and independent third-party reports on, the Subadvisor's
compliance program adopted pursuant to Rule 206(4)-7 under the Advisers Act
("Subadvisor's Compliance Program"); (b) reporting any material deficiencies in
the Subadvisor's Compliance Program to the Fund within a reasonable time; and
(c) reporting any material changes to the Subadvisor's Compliance Program to the
Fund within a reasonable time. The Subadvisor understands that the Board of
Directors of the Fund 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 of Directors approval of the Subadvisor's Compliance Program.
(b) The Subadvisor agrees that it shall immediately notify the
Manager and the Fund: (1) in the event that the Commission, or by another
regulatory body, has censured or otherwise penalized 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 (2) upon having a
reasonable basis for believing that the Series has ceased to qualify or might
not qualify as a regulated investment company under Subchapter M of the Internal
Revenue Code. The Subadvisor further agrees to notify the Manager and the Fund
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 Fund, 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: (1) in the event that the Commission has censured the Manager or the
Fund; 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 (2) upon having a reasonable basis for believing that the
Series has ceased to qualify or might not qualify as a regulated investment
company under Subchapter M of the Internal Revenue Code.
9. 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:
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(a) Articles of Incorporation of the Fund, filed with 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 "Articles of Incorporation");
(b) By-Laws of the Fund;
(c) Certified Resolutions of the Directors of the Fund authorizing
the appointment of the Subadvisor and approving the form of this Agreement;
(d) Written Instrument to Establish and Designate Separate Series
of Shares;
(e) Registration Statement under the 1940 Act and the Securities
Act of 1933, as amended, on Form N-lA, as filed with the Commission relating to
the Series and the Series' shares, and all amendments thereto;
(f) Notification of Registration of the Fund under the 1940 Act on
Form N-8A, as filed with the Commission, and all amendments thereto; and
(g) Prospectus and Statement of Additional Information of the
Series.
10. 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 Fund, and further agrees to
surrender promptly to the Fund any of such records upon the Fund'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.
11. 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 Commission) in
connection with any investigation or inquiry relating to this Agreement or the
Fund.
12. Representations Respecting Subadvisor. The Manager and the Fund
agree that neither the Fund, the Manager, nor affiliated persons of the Fund 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 Fund shares, as they
may be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, 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) 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.
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13. 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 Fund 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 Fund or if such disclosure is expressly
required or requested by applicable federal or state regulatory authorities.
14. Control. Notwithstanding any other provision of the Agreement, it
is understood and agreed that the Fund 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.
15. Liability. Except as may otherwise be required by the 1940 Act or
the rules thereunder or other applicable law, the Fund 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.
16. 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 Fund, which
(1) may be based upon any misfeasance, malfeasance, or nonfeasance by the
Manager, any of its employees or representatives or any affiliate of or any
person acting on behalf of the Manager, or (2) may be based upon any untrue
statement or alleged untrue statement of a material fact supplied by, or which
is the responsibility of, the Manager and contained in the Registration
Statement or Prospectus covering shares of the Fund 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 or the Fund 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.
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(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 (1) may be based upon any misfeasance,
malfeasance, or nonfeasance by the Subadvisor, any of its employees or
representatives, or any affiliate of or any person acting on behalf of the
Subadvisor, (2) may be based upon a failure to comply with Section 2,
Paragraph(a) of this Agreement, or (3) may be based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus covering the shares of the Fund 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 Fund, or any affiliated person of
the Manager or Fund 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, 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 interests
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
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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 interests 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.
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, 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 Directors of the Fund, or by the vote of a majority of the outstanding
voting securities (as defined in the 0000 Xxx) 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 0000 Xxx) 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 0000 Xxx) 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 Fund,
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 Fund; (b) at any time
without payment of any penalty by the Fund, upon the vote of a majority of the
Fund's Board of Directors or a majority of the outstanding voting securities of
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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 Fund. 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 Fund, 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
Investment Management Agreement between the Adviser and the Fund 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), 10, 11,
12, 14, 15, and 18 of this Agreement shall remain in effect, as well as any
applicable provision of this Section 16.
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 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 Fund,
including a majority of the Directors of the Fund 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 Fund and/or the Series. Upon termination
of the Management Agreement between the Fund and the Manager, the Subadvisor
shall forthwith cease to use such name (or derivative or logo).
(b) It is understood that the names Xxxxxxx, Xxxxxxx Capital
Management, or any derivative thereof or logo associated with those names, are
the valuable property of the Subadvisor and its affiliates and that the Fund
and/or the Series have the right to use such names (or derivative or logo) in
offering materials of the Fund with the approval of the Subadvisor and for so
long as the Subadvisor is a Subadvisor to the Fund and/or the Series. Upon
termination of this Agreement, the Fund shall forthwith cease to use such names
(or derivative or logo).
20. Amended and Restated Articles of Incorporation. A copy of the
Articles of Incorporation for the Fund is on file with the Secretary of
Maryland. The Articles of Incorporation have been executed on behalf of the Fund
by the Directors of the Fund in their capacity as Directors of the Fund and not
individually. The obligations of this Agreement shall be binding upon the assets
and property of the Fund and shall not be binding upon any Director, officer, or
shareholder of the Fund individually.
21. Proxies. 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 Fund. Absent
contrary instructions received in writing from the Fund, the Subadvisor will
vote all proxies solicited by or with respect to the issuers of securities held
by the Series, in
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accordance with applicable fiduciary obligations. The Subadvisor shall maintain
records concerning how it has voted proxies on behalf of the Fund, and these
records shall be available to the Fund upon request.
22. 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, 000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: President; or (2) to the
Subadvisor at 4720 IDS Tower, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000.
23. 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
Commission 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 0000 Xxx.
(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 15 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.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first above written.
NEW YORK LIFE INVESTMENT
MANAGEMENT LLC
Attest: /s/ Xxxxxxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
--------------------------- ----------------------------
Name: Xxxxxxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President Title: President
XXXXXXX CAPITAL MANAGEMENT, INC.
Attest: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------- ----------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Managing Director Title: Chief Executive Officer
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SCHEDULE A
1. Subadvisor shall provide services for the following series of the Fund:
o MainStay VP Large Cap Growth Portfolio
2. Subadvisor shall be paid:
First $250 MM = 40 bps
Next $250 MM = 35 bps
Next $250 MM = 30 bps
Next $250 MM = 25 bps
Over $1 billion = 20 bps
The Sub-Advisory Fee will be computed daily and paid monthly, calculated on
the basis of the aggregate average daily net asset value of all
Xxxxxxx-serviced assets in all investment companies managed by NYLIM,
including the MainStay Large Cap Fund, a series of The MainStay Funds,
during the preceding month.
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