12b-1 PLAN SERVICES AGREEMENT FOR THE
SERVICE CLASS SHARES OF MAINSTAY VP SERIES FUND, INC.
THIS AGREEMENT, made and entered into as of the ______day of May, 2003, between
NYLIFE Distributors, Inc. (the "Distributor") and New York Life Insurance and
Annuity Corporation (the "Company").
RECITALS
1. The Distributor is the distributor for the Service Class shares of the
Portfolios (the "Portfolios") of the MainStay VP = Series Fund, Inc.
(the "Fund").
2. The Company is a life insurance company that uses Service Class shares
of one or more Portfolios as investment vehicles under certain variable
annuity and/or variable life insurance contracts ("Variable Contracts")
issued by the Company. The Portfolios may be among several investment
options offered under the Variable Contracts.
3. The Company and the Fund have entered into a Stock Sale Agreement,
dated June 4, 1993, as may be amended from time to time (the "Stock
Sale Agreement"), pursuant to which the Company, on behalf of certain
of its separate accounts (the "Separate Accounts"), purchases Service
Class shares of certain Portfolios.
4. Pursuant to Rule 12b-1 under the Investment Company Act of 1940 (the
"1940 Act"), the Fund has adopted a Distribution and Service Plan (the
"12b-1 Plan") with respect to the Service Class shares of the
Portfolios pursuant to which each Portfolio pays the Distributor, for
services rendered under the Plan, a distribution or service fee at the
annualized rate of 0.25% of the average daily net assets of the
Portfolio's Service Class shares ("12b-1 Fee").
5. The 12b-1 Plan authorizes the Distributor to retain the 12b-1 Fee or to
use the 12b-1 Fee to compensate financial institutions and
organizations, such as the Company, for servicing shareholder accounts
and for services in connection with any activities or expenses
primarily intended to result in the sale of the Service Class shares of
the Portfolios.
6. The Distributor wishes to retain the Company to furnish certain
services pursuant to the 12b-1 Plan and the Company is willing to
furnish such services or cause its affiliates to provide the same.
Accordingly, the following represents the collective intention and understanding
of the Distributor and the Company under this Agreement.
AGREEMENT
1. Services Provided
The Company agrees to provide, or cause its affiliates to provide, the
following 12b-1 Plan services in connection with the Service Class
shares attributable to the Variable Contracts ("Services"): training
and educating agents of the Company about the Fund; telephone and other
communication; the printing of Portfolio Prospectuses, Statements of
Additional Information, and reports for other than existing
shareholders; the preparation, printing, and distribution of sales
literature and advertising materials that mention the Portfolios;
teleservicing support in connection with the Portfolios; delivery and
responding to inquiries respecting Portfolio Prospectuses and/or
Statements of Additional Information, reports, notices, proxies and
proxy statements and other information respecting the Portfolios (but
not including services paid for by the Fund such as printing and
mailing); facilitation of the tabulation of Variable Contract owners'
votes in the event of a meeting of Fund shareholders; maintenance of
Variable Contract records reflecting Service Class shares purchased and
redeemed and Share balances, and conveyance of that information to the
Fund, its transfer agent, or the Distributor as may be reasonably
requested; provision of support services including providing
information about the Fund and its Portfolios and answering questions
concerning the Fund and its Portfolios, including questions respecting
Variable Contract owners' interests in one or more Portfolios;
provision and administration of Variable Contract features for the
benefit of Variable Contract owners participating in the Fund including
fund transfers, dollar cost averaging, asset allocation, portfolio
rebalancing, earnings sweep, and pre-authorized deposits and
withdrawals; and provision of other services as may be agreed upon from
time to time.
2. Payment
In consideration of the Services, the Distributor agrees to pay to the
Company or a person designated by the Company a service fee at the rate
of ____% on an annualized basis of the average daily net assets of the
Service Class shares of the Portfolios held in Separate Accounts. The
payment under this paragraph shall be calculated and accrued daily by
the Distributor and will be paid monthly, with each monthly payment to
be made within thirty (30) days thereafter.
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The Company may use a portion of the payments it receives hereunder to
pay commissions to broker-dealers. In connection therewith, the Company
represents to Distributor that it will serve in the capacity of
"paymaster" as defined in Sentry Insurance a Mutual Company, SEC No -
Act. LEXIS 2750 (pub. avail. Sept. 6, 1987) and any subsequent
applicable No Action Letters.
Unless otherwise agreed, payments of any amounts owed under this
Agreement shall be made by check and mailed to the following address of
the Company:
New York Life Insurance Company
00 Xxxxxxx Xxxxxx - Xxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxx Jaureguilorda
3. Effective Date and Term of Agreement
This Agreement shall not take effect until it has been approved by
votes of a majority of both (a) the Fund's Board of Directors and (b)
those Directors of the Fund who are not "interested persons" of the
Fund (as defined in the 0000 Xxx) and who have no direct or indirect
financial interest in the operation of this Plan or any agreements
related to it (the "Independent Directors"), cast in person at a
meeting (or meetings) called for the purpose of voting on this
Agreement; and it shall continue in effect for a period of more than
one year from its effective date only so long as such continuance is
specifically approved at least annually in the manner provided for
approval of this Agreement herein.
4. Reports
The Company will furnish to the Distributor such information as the
Distributor may reasonably request, and will otherwise cooperate with
the Distributor in the preparation of reports to the Board of Directors
concerning this Agreement, as well as any other reports or filings that
may be required by law.
5. Termination
This Agreement may be terminated as to a Portfolio at any time, without
payment of any penalty, by vote of a majority of the Independent
Directors or by a vote of a majority of the outstanding voting
securities of Service Class shares on not less than 30 days' prior
written notice to both parties to the Agreement.
This Agreement may be terminated by either party, without payment of
any penalty, upon 30 days' prior written notice to the other party.
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This Agreement will automatically terminate with respect to a Portfolio
in the event of its assignment (as such term is defined in the 0000
Xxx) with respect to such Portfolio.
In addition, either party may terminate this Agreement immediately if
at any time it is determined by any federal or state regulatory
authority that compensation to be paid under this Agreement is no
longer permitted by, or becomes inconsistent with, any federal or state
law.
6. Other Agreements
Nothing in this Agreement shall amend, modify or supersede any
contractual terms, obligations or covenants among or between any of the
Company, the Distributor, or the Fund previously or currently in
effect, including those contractual terms, obligations or covenants
contained in the Stock Sale Agreement.
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers signing below.
NYLIFE DISTRIBUTORS, INC.
By:___________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman and President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By:___________________________
Name: Xxxxxx X. Rock
Title: Senior Vice President
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