Exhibit d(2)(g)
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT, made this 25th day of November, 2002, between
New York Life Investment Management LLC, a Delaware limited liability company
(the "Manager"), on behalf of The MainStay Funds (the "Trust"), and Fund Asset
Management, L.P., d/b/a Mercury Advisors, a Delaware limited partnership (the
"Subadviser").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end, management investment
company; and
WHEREAS, the Trust 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 Trust 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 an Amended and Restated Management
Agreement, dated August 1, 2002, with the Trust, on behalf of its series, which
amends and restates in its entirety the Management Agreement, dated October 21,
1997, as further amended on October 1, 1999 (collectively the "Management
Agreement"); and
WHEREAS, under the Management Agreement, the Manager has agreed to
provide certain investment advisory and related administrative services to each
series; and
WHEREAS, the Management Agreement permits the Manager to delegate
certain of its investment advisory duties under the Management Agreement to one
or more sub-advisers; and
WHEREAS, the Manager wishes to retain the Subadviser to furnish certain
investment advisory services to one or more of the series of the Trust, and the
Subadviser 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 Trust, the Manager,
and the Subadviser as follows:
1. Appointment. The Manager hereby appoints Fund Asset
Management, L.P., d/b/a Mercury Advisors to act as sub-adviser 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 Subadviser accepts such appointment
and agrees to furnish the services herein set forth for the compensation herein
provided.
In the event the Trust designates one or more series other than the
Series with respect to which the Trust and the Manager wish to retain the
Subadviser to render investment advisory services hereunder, they shall notify
the Subadviser in writing. If the Subadviser is willing to render such services,
it shall notify the Trust 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
Trust's Board of Trustees and the Manager, the Subadviser 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 Subadviser 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 Subadviser is hereby authorized to execute and
perform such services on behalf of the Series. The Subadviser will provide the
services under this Agreement in accordance with the Series' investment
objective or objectives, policies, and restrictions as stated in the Trust's
Registration Statement filed with the Securities and Exchange Commission (the
"Commission"), as amended, copies of which shall be sent to the Subadviser by
the Manager. The Subadviser further agrees as follows:
(a) The Subadviser 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 Subadviser 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 Trust's Board of
Trustees of which the Subadviser has been sent a copy, and the provisions of the
Registration Statement of the Trust under the Securities Act of 1933, as amended
(the "1933 Act"), and the 1940 Act, as supplemented or amended, of which the
Subadviser has received a copy.
(c) On occasions when the Subadviser 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 Subadviser or any of its affiliates,
the Subadviser 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 Subadviser in a manner
that is fair and equitable in the judgment of the Subadviser in the exercise of
its fiduciary obligations to the Trust and to such other clients, subject to
review by the Manager and the Board of Trustees.
(d) In connection with the purchase and sale of
securities for the Series, the Subadviser 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 Subadviser will arrange for the
2
automatic transmission of the confirmation of such trades to the Trust's
custodian and portfolio accounting agent.
(e) The Subadviser will monitor on a daily basis the
determination by the portfolio accounting agent for the Trust of the valuation
of portfolio securities and other investments of the Series. The Subadviser will
assist the custodian and portfolio accounting agent for the Trust in determining
or confirming, consistent with the procedures and policies stated in the
Registration Statement for the Trust, 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
Subadviser.
(f) The Subadviser will make available to the Trust and
the Manager, promptly upon request, all of the Series' investment records and
ledgers maintained by the Subadviser (which shall not include the records and
ledgers maintained by the custodian or portfolio accounting agent for the Trust)
as are necessary to assist the Trust 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 Subadviser 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 Trust are being conducted in a manner consistent
with applicable laws and regulations.
(g) The Subadviser will provide reports to the Trust's
Board of Trustees, 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 Trust's Board of Trustees with respect to the
Series such periodic and special reports as the Trustees and the Manager may
reasonably request.
(h) In rendering the services required under this
Agreement, the Subadviser 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 Subadviser may not, however,
retain as sub-adviser 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 Trust's Board of Trustees and by a
majority of Trustees 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
Trust, the Manager, or the Subadviser, or any such company that is retained as
sub-adviser, and also is approved by the vote of a majority of the outstanding
voting securities of the applicable Series of the Trust to the extent required
by the 1940 Act. The Subadviser shall be responsible for making reasonable
inquiries and for reasonably ensuring that any employee of the Subadviser, any
sub-adviser that the Subadviser has employed or with which it has associated
with respect to the Series, or any employee thereof has not, to the best of the
Subadviser's knowledge, in any material connection with the handling of Trust
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
3
(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 Subadviser 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 Subadviser'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 Trust, 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
Subadviser in the exercise of its fiduciary obligations to the Trust, by other
aspects of the portfolio execution services offered. Subject to such policies as
the Board of Trustees may determine, and consistent with Section 28(e) of the
Securities Exchange Act of 1934, as amended, the Subadviser 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 Subadviser 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 Subadviser'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 Trust's Procedures for Securities Transactions with
Affiliated Brokers pursuant to Rule 17e-1, the Subadviser is further authorized
to allocate the orders placed by it on behalf of the Series to the Subadviser 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 Subadviser, or an
affiliate of the Subadviser. Such allocation shall be in such amounts and
proportions as the Subadviser shall determine consistent with the above
standards, and the Subadviser will report on said allocation regularly to the
Board of Trustees of the Trust, indicating the broker-dealers to which such
allocations have been made and the basis therefor.
4. Disclosure about Subadviser. The Subadviser has reviewed the
post-effective amendment to the Registration Statement for the Trust filed with
the Commission that contains disclosure about the Subadviser, and represents and
warrants that, with respect to the disclosure about the Subadviser or
information relating, directly or indirectly, to the Subadviser, such
Registration Statement contains, as of the date hereof, no untrue statement of
any material fact
4
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 Subadviser 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 Subadviser is required to be
registered.
5. Expenses. During the term of this Agreement, the Subadviser
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 Trust shall be responsible for all the expenses of the Trust's
operations, including, but not limited to:
(a) the fees and expenses of Trustees who are not
interested persons of the Manager or of the Trust;
(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 Trustees of the Trust, 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 Trust'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 Trust;
(e) brokers' commissions and any issue or transfer taxes
chargeable to the Trust in connection with its securities transactions on behalf
of the Series;
(f) all taxes and business fees payable by the Trust or
the Series to federal, state or other governmental agencies;
(g) the fees of any trade association of which the Trust
may be a member;
(h) the cost of share certificates representing Series
Shares;
(i) the fees and expenses involved in registering and
maintaining registrations of the Trust and of its Shares with the Commission,
registering the Trust as a broker or dealer, and qualifying its Shares under
state securities laws, including the preparation and printing of the Trust'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 Trustees' meetings and
of preparing, printing and mailing reports to shareholders in the amount
necessary for distribution to the shareholders;
5
(k) litigation and indemnification expenses and other
extraordinary expenses not incurred in the ordinary course of the Trust'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 Subadviser a fee, payable monthly, as described on Schedule A.
7. Seed Money. The Manager agrees that the Subadviser shall not
be responsible for providing money for the initial capitalization of the Series.
8. Compliance.
(a) The Subadviser agrees that it shall immediately
notify the Manager and the Trust: (1) in the event that the Commission has
censured the Subadviser; 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 Subadviser further agrees to
notify the Manager and the Trust immediately of any material fact known to the
Subadviser respecting or relating to the Subadviser that is not contained in the
Registration Statement or prospectus for the Trust, or any amendment or
supplement thereto, or of any statement contained therein that becomes untrue in
any material respect.
(b) The Manager agrees that it shall immediately notify
the Subadviser: (1) in the event that the Commission has censured the Manager or
the Trust; 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 Subadviser copies
of each of the following documents and will deliver to it all future amendments
and supplements, if any:
(a) Declaration of Trust of the Trust, filed with the
Secretary of the Commonwealth of Massachusetts (such Declaration of Trust, as in
effect on the date hereof and as amended from time to time, is herein called the
"Amended and Restated Declaration of Trust");
(b) By-Laws of the Trust;
(c) Certified Resolutions of the Trustees of the Trust
authorizing the appointment of the Subadviser and approving the form of this
Agreement;
(d) Written Instrument to Establish and Designate
Separate Series of Shares;
6
(e) Registration Statement under the 1940 Act and the
Securities Act of 1933, as amended, on Form N-1A, as filed with the Commission
relating to the Series and the Series' Shares, and all amendments thereto;
(f) Notification of Registration of the Trust 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 Subadviser hereby agrees that all records that it
maintains for the Series are the property of the Trust, and further agrees to
surrender promptly to the Trust any of such records upon the Trust's or the
Manager's request; provided, however, that the Subadviser may, at its own
expense, make and retain a copy of such records. The Subadviser 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-1 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
Trust.
12. Representations Respecting Subadviser. The Manager and the
Trust agree that neither the Trust, the Manager, nor affiliated persons of the
Trust or the Manager shall, except with the prior permission of the Subadviser,
give any information or make any representations or statements in connection
with the sale of shares of the Series concerning the Subadviser or the Series
other than the information or representations contained in the Registration
Statement, Prospectus, or Statement of Additional Information for the Trust
shares, as they may be amended or supplemented from time to time, or in reports
or proxy statements for the Trust, or in sales literature or other promotional
material approved in advance by the Subadviser. 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 Subadviser for its approval and
the Subadviser 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 Subadviser shall not be
deemed to have approved of the contents of such sales literature or other
promotional material.
13. Control. Notwithstanding any other provision of the Agreement,
it is understood and agreed that the Trust 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 Subadviser.
14. Liability. Except as may otherwise be required by the 1940 Act
or the rules thereunder or other applicable law, the Trust and the Manager agree
that the Subadviser, any affiliated person of the Subadviser, and each person,
if any, who, within the meaning of Section 15 of the 1933 Act controls the
Subadviser, shall not be liable for, or subject to any damages,
7
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
Subadviser's duties, or by reason of reckless disregard of the Subadviser's
obligations and duties under this Agreement.
15. Indemnification.
(a) The Manager agrees to indemnify and hold harmless the
Subadviser, any affiliated person of the Subadviser, and each person, if any,
who, within the meaning of Section 15 of the 1933 Act controls ("controlling
person") the Subadviser (all of such persons being referred to as "Subadviser
Indemnified Persons") against any and all losses, claims, damages, liabilities,
or litigation (including legal and other expenses) to which a Subadviser
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 Trust, 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 Trust 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 Trust or to any
affiliated person of the Manager by a Subadviser Indemnified Person; provided,
however, that in no case shall the indemnity in favor of the Subadviser
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
Subadviser 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 Subadviser's
responsibilities as Subadviser of the Series, which (1) may be based upon any
misfeasance, malfeasance, or nonfeasance by the Subadviser, any of its employees
or representatives, or any affiliate of or any person acting on behalf of the
Subadviser, (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 Trust 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 Subadviser
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,
8
the Trust, or any affiliated person of the Manager or Trust by the Subadviser or
any affiliated person of the Subadviser; 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 Subadviser
Indemnified Person unless such Subadviser 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 Subadviser Indemnified Person (or after
such Subadviser 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 Subadviser
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 Subadviser
Indemnified Person, the Manager will be entitled to participate, at its own
expense, in the defense thereof or, after notice to the Subadviser Indemnified
Person, to assume the defense thereof, with counsel satisfactory to the
Subadviser 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 Subadviser Indemnified Person would result in a conflict of interests
and, therefore, would not, in the reasonable judgment of the Subadviser
Indemnified Person, adequately represent the interests of the Subadviser
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 Subadviser Indemnified Person, which counsel shall be satisfactory to the
Manager and to the Subadviser Indemnified Person. The Subadviser Indemnified
Person shall bear the fees and expenses of any additional counsel retained by
it, and the Manager shall not be liable to the Subadviser Indemnified Person
under this Agreement for any legal or other expenses subsequently incurred by
the Subadviser 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 Subadviser Indemnified Person if the compromise or settlement
results, or may result, in a finding of wrongdoing on the part of the Subadviser
Indemnified Person.
(d) The Subadviser 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 Subadviser 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 Subadviser of any such claim shall
not relieve the Subadviser 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 Subadviser 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 Subadviser assumes the defense of any such action and
the selection of counsel by the Subadviser to
9
represent both the Subadviser 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 Subadviser will, at its own expense, assume the
defense with counsel to the Subadviser and, also at its own expense, with
separate counsel to the Manager Indemnified Person, which counsel shall be
satisfactory to the Subadviser 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 Subadviser 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 Subadviser 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. 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 Trustees of the Trust, 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 Trustees 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. The Subadviser shall not provide any services for a
Series or receive any fees on account of such Series with respect to which this
Agreement is not approved as described in the preceding sentence. However, 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 Trust, 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 Subadviser and the Trust; (b) at any time
without payment of any penalty by the Trust, upon the vote of a majority of the
Trust's Board of Trustees or a majority of the outstanding voting securities of
each Series, upon sixty (60) days' written notice to the Manager and the
Subadviser; or (c) by the Subadviser at any time without penalty, upon sixty
(60) days' written notice to the Manager and the Trust. 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 Trust, free from
any claim or retention of rights in such record by the Subadviser; provided,
however, that the Subadviser 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 Trust 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,
10
11, 12, 14, 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 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 Trustees of the Trust,
including a majority of the Trustees of the Trust 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 or any
derivative thereof or logo associated with that name is the valuable property of
the Manager and/or its affiliates, and that the Subadviser 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 Trust and/or the Series. Upon
termination of the Management Agreement between the Trust and the Manager, the
Subadviser shall forthwith cease to use such name (or derivative or logo).
(b) It is understood that the names Mercury Advisors,
Fund Asset Management, Xxxxxxx Xxxxx, or any derivative thereof or logo
associated with those names, are the valuable property of the Subadviser and its
affiliates and that the Trust and/or the Series have the right to use such names
(or derivative or logo) in offering materials of the Trust with the approval of
the Subadviser and for so long as the Subadviser is a Subadviser to the Trust
and/or the Series. Upon termination of this Agreement, the Trust shall forthwith
cease to use such names (or derivative or logo).
19. Amended and Restated Declaration of Trust. A copy of the
Amended and Restated Declaration of Trust for the Trust is on file with the
Secretary of The Commonwealth of Massachusetts. The Amended and Restated
Declaration of Trust has been executed on behalf of the Trust by the Trustees of
the Trust in their capacity as Trustees of the Trust and not individually. The
obligations of this Agreement shall be binding upon the assets and property of
the Trust and shall not be binding upon any Trustee, officer, or shareholder of
the Trust individually.
20. Proxies. The Manager has provided the Subadviser 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 Trust. Absent
contrary instructions received in writing from the Trust, the Subadviser 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
Subadviser shall maintain records concerning how it has voted proxies on behalf
of the Trust, and these records shall be available to the Trust upon request.
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
11
prepaid, (1) to the Manager at NYLIM Center, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000, Attention: President; or (2) to the Subadviser at 000 Xxxxxxxx
Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx X. Xxxxx, Esq.
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
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
Subadviser as an agent of the Manager, or constituting the Manager as an agent
of the Subadviser.
12
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/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------- ---------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director and Associate Title: President and Chief Operating
General Counsel Officer
FUND ASSET MANAGEMENT, L.P.,
d/b/a MERCURY ADVISORS
Attest: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxx
------------------------------- ---------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxx X. Xxxx
Title: Director-Legal Advisory Title: Chief Operating Officer
13
SCHEDULE A
SERIES ANNUAL RATE*
Research Value Fund .425% up to $250 million;
.3825% from $250 million to $500 million; and
.340% in excess of $500 Million
* of the Series' average daily net assets
14
