PARTICIPATION AGREEMENT
AMONG
MFS VARIABLE INSURANCE TRUST,
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
AND
MASSACHUSETTS FINANCIAL SERVICES COMPANY
THIS AGREEMENT, made and entered into this 30th day of April 2003, by
and among MFS VARIABLE INSURANCE TRUST, a Massachusetts business trust (the
"Trust"), NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION, a Delaware
corporation (the "Company") on its own behalf and on behalf of each of the
segregated asset accounts of the Company set forth in Schedule A hereto, as may
be amended from time to time (each an "Account," and, collectively, the
"Accounts"), and MASSACHUSETTS FINANCIAL SERVICES COMPANY, a Delaware
corporation ("MFS").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and its shares are registered or will be registered under the Securities Act of
1933, as amended (the "1933 Act");
WHEREAS, shares of beneficial interest of the Trust are divided into
several series of shares, each representing the interests in a particular
managed pool of securities and other assets;
WHEREAS, certain series of shares of the Trust are divided into two
separate share classes, an Initial Class and a Service Class, and the Trust on
behalf of the Service Class has adopted a Rule 12b-1 plan under the 1940 Act
pursuant to which the Service Class pays a distribution fee;
WHEREAS, the series of shares of the Trust (each, a "Portfolio," and,
collectively, the "Portfolios") and the classes of shares of those Portfolios
(the "Shares") offered by the Trust to the Company and the Accounts are set
forth on Schedule A attached hereto;
WHEREAS, MFS is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and any applicable state securities
law, and is the Trust's investment adviser;
WHEREAS, the Company will issue certain variable annuity and/or
variable life insurance contracts (individually, the "Policy" and, collectively,
the "Policies") which, if required by applicable law, will be registered under
the 1933 Act;
WHEREAS, the Accounts are duly organized, validly existing segregated
asset accounts, established by resolution of the Board of Directors of the
Company, to set aside and invest assets attributable to the aforesaid variable
annuity and/or variable life insurance contracts that are allocated to the
Accounts (the Policies and the Accounts covered by this Agreement, and each
corresponding Portfolio covered by this Agreement in which the Accounts invest,
is specified in Schedule A attached hereto as may be modified from time to
time);
WHEREAS, the Company has registered or will register the Accounts as
unit investment trusts under the 1940 Act (unless exempt therefrom);
WHEREAS, MFS Fund Distributors, Inc. (the "Underwriter") is registered
as a broker-dealer with the Securities and Exchange Commission (the "SEC") under
the Securities Exchange Act of 1934, as amended (hereinafter the "1934 Act"),
and is a member in good standing of the National Association of Securities
Dealers, Inc. (the "NASD");
WHEREAS, NY Life Distributors Inc. ("NY Life Distributors"), the
underwriter for the individual variable annuity and the variable life policies,
is registered as a broker-dealer with the SEC under the 1934 Act and is a member
in good standing of the NASD; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase the Shares in one or more of the
Portfolios as specified in Schedule A attached hereto (the "Shares") on behalf
of the Accounts to fund the Policies, and the Trust intends to sell such Shares
to the Accounts at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Trust,
MFS, and the Company agree as follows:
ARTICLE I. SALE OF TRUST SHARES
1.1. The Trust agrees to sell to the Company those full and
fractional Shares which the Accounts order (based on orders placed by
Policy owners prior to the close of regular trading on the New York
Stock Exchange, Inc. (the "NYSE") on that Business Day, as defined
below) and which are available for purchase by such Accounts, executing
such orders on a daily basis at the net asset value next computed after
receipt by the Trust or its designee of the order for the Shares. For
purposes of this Section 1.1, the Company shall be the designee of the
Trust for receipt of such orders from Policy owners and receipt by such
designee shall constitute receipt by the Trust; provided that the Trust
receives notice of such orders by 10:00 a.m. New York time on the next
following Business Day or such later time as permitted by Section 1.9
hereof. "Business Day" shall mean any day on which the New York Stock
Exchange, Inc. (the "NYSE") is open for trading and on which the Trust
calculates its net asset value pursuant to the rules of the SEC.
1.2. The Trust agrees to make the Shares available indefinitely for
purchase at the applicable net asset value per share by the Company and
the Accounts on those days on which the Trust calculates its net asset
value pursuant to rules of the SEC and the Trust shall calculate such
net asset value on each day which the NYSE is open for trading.
Notwithstanding the foregoing, the Board of Trustees of the Trust (the
"Board") may refuse to sell any Shares to the Company and the Accounts,
or suspend or terminate the offering of the Shares if such action is
required by law or by regulatory authorities having jurisdiction or is,
in the sole discretion of the Board acting in good faith and in light
of its fiduciary duties under federal and any applicable state laws,
necessary in the best interest of the Shareholders of such Portfolio.
1.3. The Trust and MFS agree that the Shares will be sold only to
insurance companies which have entered into participation agreements
with the Trust and MFS (the "Participating Insurance Companies") and
their separate accounts, qualified pension and retirement plans and MFS
or its eligible affiliates. The Trust and MFS will not sell Trust
shares to any insurance company or separate account unless an agreement
containing provisions substantially the same as Articles III
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and VII of this Agreement is in effect to govern such sales. The
Company will not resell the Shares except to the Trust or its agents.
1.4. The Trust agrees to redeem for cash, on the Company's request,
any full or fractional Shares held by the Accounts (based on orders
placed by Policy owners prior to the close of regular trading on the
NYSE on that Business Day), executing such requests on a daily basis at
the net asset value next computed after receipt by the Trust or its
designee of the request for redemption. For purposes of this Section
1.4, the Company shall be the designee of the Trust for receipt of
requests for redemption from Policy owners and receipt by such designee
shall constitute receipt by the Trust; provided that the Trust receives
notice of such request for redemption by 10:00 a.m. New York time on
the next following Business Day or such later time as permitted by
Section 1.9 hereof.
1.5. Each purchase, redemption and exchange order placed by the
Company shall be placed separately for each Portfolio and shall not be
netted with respect to any Portfolio. However, with respect to payment
of the purchase price by the Company and of redemption proceeds by the
Trust, the Company and the Trust shall net purchase and redemption
orders with respect to each Portfolio and shall transmit one net
payment for all of the Portfolios in accordance with Section 1.6
hereof.
1.6. In the event of net purchases, the Company shall pay for the
Shares by 2:00 p.m. New York time on the next Business Day after an
order to purchase the Shares is made in accordance with the provisions
of Section 1.1. hereof. In the event of net redemptions, the Trust
shall pay the redemption proceeds by 2:00 p.m. New York time on the
next Business Day after an order to redeem the shares is made in
accordance with the provisions of Section 1.4. hereof. All such
payments shall be in federal funds transmitted by wire.
1.7. Issuance and transfer of the Shares will be by book entry
only. Stock certificates will not be issued to the Company or the
Accounts. The Shares ordered from the Trust will be recorded in an
appropriate title for the Accounts or the appropriate subaccounts of
the Accounts.
1.8. The Trust shall furnish same day notice (by wire or telephone
followed by written confirmation) to the Company of any dividends or
capital gain distributions payable on the Shares. The Company hereby
elects to receive all such dividends and distributions as are payable
on a Portfolio's Shares in additional Shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all
such dividends and capital gain distributions in cash. The Trust shall
notify the Company of the number of Shares so issued as payment of such
dividends and distributions.
1.9. The Trust or its custodian shall make the net asset value per
share for each Portfolio available to the Company on each Business Day
as soon as reasonably practical after the net asset value per share is
calculated and shall use its best efforts to make such net asset value
per share available by 6:30 p.m. New York time. In the event that the
Trust is unable to meet the 6:30 p.m. time stated herein, it shall
provide additional time for the Company to place orders for the
purchase and redemption of Shares. Such additional time shall be equal
to the additional time which the Trust takes to make the net asset
value available to the Company. If the Trust provides materially
incorrect share net asset value information, the Trust shall make an
adjustment to the number of shares purchased or redeemed for the
Accounts to reflect the correct net asset value per share. Any material
error in the calculation or reporting of net asset value per share,
dividend or capital gains information shall be reported promptly upon
discovery to the Company.
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ARTICLE II. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. The Company represents and warrants that the Policies are or
will be registered under the 1933 Act or are exempt from or not subject
to registration thereunder, and that the Policies will be issued, sold,
and distributed in compliance in all material respects with all
applicable state and federal laws, including without limitation the
1933 Act, the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the 1940 Act. The Company further represents and warrants
that it is an insurance company duly organized and in good standing
under applicable law and that it has legally and validly established
each Account as a segregated asset account under applicable law and has
registered or, prior to any issuance or sale of the Policies, will
register the Accounts as unit investment trusts in accordance with the
provisions of the 1940 Act (unless exempt therefrom) to serve as
segregated investment accounts for the Policies, and that it will
maintain such registration for so long as any Policies are outstanding.
The Company shall amend the registration statements under the 1933 Act
for the Policies and the registration statements under the 1940 Act for
the Accounts from time to time as required in order to effect the
continuous offering of the Policies or as may otherwise be required by
applicable law. The Company shall register and qualify the Policies for
sales in accordance with the securities laws of the various states only
if and to the extent deemed necessary by the Company.
2.2. The Company represents and warrants that the Policies are
currently and at the time of issuance will be treated as life
insurance, endowment or annuity contract under applicable provisions of
the Internal Revenue Code of 1986, as amended (the "Code"), that it
will maintain such treatment and that it will notify the Trust or MFS
immediately upon having a reasonable basis for believing that the
Policies have ceased to be so treated or that they might not be so
treated in the future; provided, however, that the Company makes no
representation or undertaking regarding any Policy to the extent such
representation or undertaking is dependent on compliance by an
investment vehicle in which the Company or an Account may invest with
the requirements of Subchapter M or Section 817(h) of the Code, the
regulations thereunder, or any successor provision.
2.3. The Company represents and warrants that NY Life Distributors,
the underwriter for the individual variable annuity and the variable
life policies, is a member in good standing of the NASD and is a
registered broker-dealer with the SEC. The Company represents and
warrants that the Company and NY Life Distributors will sell and
distribute such policies in accordance in all material respects with
all applicable state and federal securities laws, including without
limitation the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.4. The Trust and MFS represent and warrant that the Shares sold
pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with the laws of The
Commonwealth of Massachusetts and all applicable federal and state
securities laws and that the Trust is and shall remain registered under
the 1940 Act. The Trust and MFS will use their best efforts to comply
with state insurance laws and regulations that the Company brings to
the attention of the Trust and MFS; provided, however, that the Company
identifies and describes the specific provisions to be complied with.
The Trust shall amend the registration statement for its Shares under
the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Shares. The Trust shall register
and qualify the Shares for sale in accordance with the laws of the
various states only if and to the extent deemed necessary by the Trust.
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2.5. MFS represents and warrants that the Underwriter is a member
in good standing of the NASD and is registered as a broker-dealer with
the SEC. The Trust and MFS represent that the Trust and the Underwriter
will sell and distribute the Shares in accordance in all material
respects with all applicable state and federal securities laws,
including without limitation the 1933 Act, the 1934 Act, and the 0000
Xxx.
2.6. The Trust represents that it is lawfully organized and validly
existing under the laws of The Commonwealth of Massachusetts and that
it does and will comply in all material respects with the 1940 Act and
any applicable regulations thereunder.
2.7. MFS represents and warrants that it is and shall remain duly
registered under all applicable federal securities laws and that it
shall perform its obligations for the Trust in compliance in all
material respects with any applicable federal securities laws and with
the securities laws of The Commonwealth of Massachusetts. MFS
represents and warrants that it is not subject to state securities laws
other than the securities laws of The Commonwealth of Massachusetts and
that it is exempt from registration as an investment adviser under the
securities laws of The Commonwealth of Massachusetts.
2.8. No less frequently than annually, the Company shall submit to
the Board such reports, material or data as the Board may reasonably
request so that it may carry out fully the obligations imposed upon it
by the conditions contained in the exemptive application pursuant to
which the SEC has granted exemptive relief to permit mixed and shared
funding (the "Mixed and Shared Funding Exemptive Order").
ARTICLE III. PROSPECTUS AND PROXY STATEMENTS; VOTING
3.1. At least annually, the Trust or its designee shall provide the
Company, free of charge, with as many copies of the current prospectus
(describing only the Portfolios listed in Schedule A hereto) for the
Shares (and supplements thereto) as the Company may reasonably request
for distribution to existing Policy owners whose Policies are funded by
such Shares. The Trust or its designee shall provide the Company, at
the Company's expense, with as many copies of the current prospectus
for the Shares (and supplements thereto) as the Company may reasonably
request for distribution to prospective purchasers of Policies. If
requested by the Company in lieu thereof, the Trust or its designee
shall provide such documentation (including a "camera ready" copy of
the new prospectus as set in type or, at the request of the Company, as
a diskette in the form sent to the financial printer) and other
assistance as is reasonably necessary in order for the parties hereto
once each year (or more frequently if the prospectus for the Shares is
supplemented or amended) to have the prospectus for the Policies and
the prospectus for the Shares printed together in one document; the
expenses of such printing to be apportioned between (a) the Company and
(b) the Trust or its designee in proportion to the number of pages of
the Policy and Shares' prospectuses, taking account of other relevant
factors affecting the expense of printing, such as covers, columns,
graphs and charts; the Trust or its designee to bear the cost of
printing the Shares' prospectus portion of such document for
distribution to owners of existing Policies funded by the Shares and
the Company to bear the expenses of printing the portion of such
document relating to the Accounts; provided, however, that the Company
shall bear all printing expenses of such combined documents where used
for distribution to prospective purchasers or to owners of existing
Policies not funded by the Shares. In the event that the Company
requests that the Trust or its designee provides the Trust's prospectus
in a "camera ready" or diskette format, the Trust shall be responsible
for providing the prospectus in the format in which it or MFS is
accustomed to
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formatting prospectuses and shall bear the expense of providing the
prospectus in such format (e.g., typesetting expenses), and the Company
shall bear the expense of adjusting or changing the format to conform
with any of its prospectuses.
3.2. The prospectus for the Shares shall state that the statement
of additional information for the Shares is available from the Trust or
its designee. The Trust or its designee, at its expense, shall print
and provide such statement of additional information (and supplements
thereto) to the Company (or a master of such statement suitable for
duplication by the Company) for distribution to any owner of a Policy
funded by the Shares. The Trust or its designee, at the Company's
expense, shall print and provide such statement (and supplements
thereto) to the Company (or a master of such statement suitable for
duplication by the Company) for distribution to a prospective purchaser
who requests such statement or to an owner of a Policy not funded by
the Shares.
3.3. The Trust or its designee shall provide the Company free of
charge copies, if and to the extent applicable to the Shares, of the
Trust's proxy materials, reports to Shareholders and other
communications to Shareholders in such quantity as the Company shall
reasonably require for distribution to Policy owners.
3.4. Notwithstanding the provisions of Sections 3.1, 3.2, and 3.3
above, or of Article V below, the Company shall pay the expense of
printing or providing documents to the extent such cost is considered a
distribution expense. Distribution expenses would include by way of
illustration, but are not limited to, the printing of the Shares'
prospectus or prospectuses for distribution to prospective purchasers
or to owners of existing Policies not funded by such Shares.
3.5. The Trust hereby notifies the Company that it may be
appropriate to include in the prospectus pursuant to which a Policy is
offered disclosure regarding the potential risks of mixed and shared
funding.
3.6. If and to the extent required by law, the Company shall:
(a) solicit voting instructions from Policy owners;
(b) vote the Shares in accordance with instructions
received from Policy owners; and
(c) vote the Shares for which no instructions have been
received in the same proportion as the Shares of such
Portfolio for which instructions have been received
from Policy owners;
so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass through voting privileges for variable
contract owners. The Company reserves the right to vote shares held in
any segregated asset account in its own right, to the extent permitted
by law. Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts holding Shares calculates
voting privileges in the manner required by the Mixed and Shared
Funding Exemptive Order, and the Trust shall provide reasonable
assistance as may be necessary to facilitate coordination between the
Company and the other Participating Insurance Companies in complying
with this requirement; provided, however, that the Company shall be
free to vote Portfolio shares attributable to any Account in any manner
permitted by applicable law, to the extent the Mixed and Shared Funding
Exemptive Order is superceded by SEC regulation or administrative
practice. The Trust and MFS will notify the Company of any changes of
interpretations or amendments to the Mixed and Shared Funding Exemptive
Order.
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ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to
the Trust or its designee, its prospectus relating to the Policies,
each piece of sales literature or other promotional material and any
registration statement, statement of additional information, periodic
report and proxy materials relating to the Policies in which the Trust,
MFS, any other investment adviser to the Trust, or any affiliate of MFS
are named, at least ten (10) Business Days prior to its use or such
shorter period as the parties hereto may agree from time to time. No
such material shall be used if the Trust, MFS, or their respective
designees reasonably objects to such use within ten (10) Business Days
after receipt of such material or such shorter period as the parties
hereto may agree from time to time.
4.2. The Company shall not give any information or make any
representations or statement on behalf of the Trust, MFS, any other
investment adviser to the Trust, or any affiliate of MFS or concerning
the Trust or any other such entity in connection with the sale of the
Policies other than the information or representations contained in the
registration statement, prospectus or statement of additional
information for the Shares, as such registration statement, prospectus
and statement of additional information may be amended or supplemented
from time to time, or in reports or proxy materials for the Trust, or
in sales literature or other promotional material approved by the
Trust, MFS or their respective designees, except with the permission of
the Trust, MFS or their respective designees. The Trust, MFS or their
respective designees each agrees to respond, or cause their respective
designees to respond, to any request for approval on a prompt and
timely basis. The Company shall adopt and implement procedures
reasonably designed to ensure that information concerning the Trust,
MFS or any of their affiliates which is intended for use only by
brokers or agents selling the Policies (i.e., information that is not
intended for distribution to Policy owners or prospective Policy
owners) is so used, and neither the Trust, MFS nor any of their
affiliates shall be liable for any losses, damages or expenses relating
to the improper use of such broker only materials, except as otherwise
provided herein.
4.3. The Trust or its designee shall furnish, or shall cause to be
furnished, to the Company or its designee, its prospectus relating to
the Portfolios, each piece of sales literature or other promotional
material and any registration statement, statement of additional
information, periodic report and proxy materials relating to the
Portfolios in which the Company and/or the Accounts is named, at least
ten (10) Business Days prior to its use or such shorter period as the
parties hereto may agree from time to time. No such material shall be
used if the Company or its designee reasonably objects to such use
within ten (10) Business Days after receipt of such material or such
shorter period as the parties hereto may agree from time to time.
4.4. The Trust and MFS shall not give, and agree that the
Underwriter shall not give, any information or make any representations
on behalf of the Company or concerning the Company, the Accounts, or
the Policies in connection with the sale of the Policies other than the
information or representations contained in a registration statement,
prospectus, or statement of additional information for the Policies, as
such registration statement, prospectus and statement of additional
information may be amended or supplemented from time to time, or in
reports for the Accounts, or in sales literature or other promotional
material approved by the Company or its designee, except with the
permission of the Company. The Company or its designee agrees to
respond, or cause its designee to respond, to any request for approval
on a prompt and timely basis. The Trust and MFS may not alter any
material so provided by the Company or its designee (including, without
limitation, presenting or delivering such material in a different
medium, e.g., electronic or internet)
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without the prior written consent of the Company. The parties hereto
agree that this Section 4.4. is neither intended to designate nor
otherwise imply that MFS is an underwriter or distributor of the
Policies.
4.5. The Company and the Trust (or their respective designees in
lieu of the Company or the Trust, as appropriate) will each provide to
the other at least one complete copy of all registration statements,
prospectuses, statements of additional information, reports, proxy
statements, sales literature or other promotional materials,
applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Policies, or to the
Trust or its Shares, prior to or contemporaneously with the filing of
such document with the SEC or other regulatory authorities. The Company
and the Trust shall also each promptly inform the other of the results
of any examination by the SEC (or other regulatory authorities) that
relates to the Policies, the Trust or its Shares, and the party that
was the subject of the examination shall provide the other party with a
copy of relevant portions of any "deficiency letter" or other
correspondence or written report regarding any such examination.
4.6. No party shall use any other party's names, logos, trademarks
or service marks, whether registered or unregistered, without the prior
written consent of such other party, or after written consent therefor
has been revoked, provided that separate consent is not required under
this Section 4.6 to the extent that consent to use a party's name,
logo, trademark or service xxxx in connection with a particular piece
of advertising or sales literature has previously been given by a party
under Sections 4.2 and 4.4 of this Agreement. The Company shall not use
in advertising, publicly or otherwise the name of the Trust, MFS or any
of their affiliates nor any trade name, trademark, trade device,
servicemark, symbol or any abbreviation, contraction or simulation
thereof of the Trust, MFS, or their affiliates without the prior
written consent of the Trust or MFS in each instance. The Trust and MFS
shall not use in advertising, publicly or otherwise the name of the
Company or any of its affiliates nor any trade name, trademark, trade
device, servicemark, symbol or any abbreviation, contraction or
simulation thereof of the Company or its affiliates without the prior
written consent of the Company in each instance.
4.7. The Trust and MFS will provide the Company with as much notice
as is reasonably practicable of any proxy solicitation for any
Portfolio, and of any material change in the Trust's registration
statement, particularly any change resulting in a change to the
registration statement or prospectus or statement of additional
information for any Account. The Trust and MFS will cooperate with the
Company so as to enable the Company to solicit proxies from Policy
owners or to make changes to its prospectus, statement of additional
information or registration statement, in an orderly manner. The Trust
and MFS will make reasonable efforts to attempt to have changes
affecting Policy prospectuses become effective simultaneously with the
annual updates for such prospectuses.
4.8. For purpose of this Article IV and Article VIII, the phrase
"sales literature or other promotional material" includes but is not
limited to advertisements (such as material published, or designed for
use in, a newspaper, magazine, or other periodical, radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures, or other public media), and sales literature (such as
brochures, circulars, reprints or excerpts or any other advertisement,
sales literature, or published articles), distributed or made generally
available to customers or the public, educational or training materials
or communications distributed or made generally available to some or
all agents or employees.
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ARTICLE V. FEES AND EXPENSES
5.1. The Trust shall pay no fee or other compensation to the
Company under this Agreement, and the Company shall pay no fee or other
compensation to the Trust, except that, to the extentthe Trust or any
Portfolio has adopted and implemented a plan pursuant to Rule 12b-1
under the 1940 Act to finance distribution and for Shareholder
servicing expenses, then, subject to obtaining any required exemptive
orders or regulatory approvals, the Trust may make payments to the
Company or to the underwriter for the Policies in accordance with such
plan. Each party, however, shall, in accordance with the allocation of
expenses specified in Articles III and V hereof, reimburse other
parties for expenses initially paid by one party but allocated to
another party. In addition, nothing herein shall prevent the parties
hereto from otherwise agreeing to perform, and arranging for
appropriate compensation for, other services relating to the Trust
and/or to the Accounts. Except as otherwise provided herein, each of
the parties hereto shall bear the expenses incident to its obligations
under the Agreement.
5.2. The Trust or its designee shall bear the expenses for the cost
of registration and qualification of the Shares under all applicable
federal and state laws, including preparation and filing of the Trust's
registration statement, and payment of filing fees and registration
fees; preparation and filing of the Trust's proxy materials and reports
to Shareholders; setting in type and printing its prospectus and
statement of additional information (to the extent provided by and as
determined in accordance with Article III above); setting in type and
printing the proxy materials and reports to Shareholders (to the extent
provided by and as determined in accordance with Article III above);
the preparation of all statements and notices required of the Trust by
any federal or state law with respect to its Shares; all taxes on the
issuance or transfer of the Shares; and the costs of distributing the
Trust's prospectuses and proxy materials to owners of Policies funded
by the Shares and any expenses permitted to be paid or assumed by the
Trust pursuant to a plan, if any, under Rule 12b-1 under the 1940 Act.
The Trust shall not bear any expenses of marketing the Policies.
5.3. The Company shall bear the expenses of distributing the
Shares' prospectus or prospectuses in connection with new sales of the
Policies and of distributing the Trust's Shareholder reports to Policy
owners. The Company shall bear all expenses associated with the
registration, qualification, and filing of the Policies under
applicable federal securities and state insurance laws; the cost of
preparing, printing and distributing the Policy prospectus and
statement of additional information; and the cost of preparing,
printing and distributing annual individual account statements for
Policy owners as required by state insurance laws.
ARTICLE VI. DIVERSIFICATION AND RELATED LIMITATIONS
6.1. The Trust and MFS represent and warrant that each Portfolio of
the Trust does and will meet the diversification requirements of
Section 817 (h)(1) of the Code and Treas. Reg. 1.817-5, relating to the
diversification requirements for variable annuity, endowment, or life
insurance contracts, as they may be amended from time to time (and any
revenue rulings, revenue procedures, notices, and other published
announcements of the Internal Revenue Service interpreting these
sections), as if those requirements applied directly to each such
Portfolio.
6.2. The Trust and MFS represent and warrant that each Portfolio
has elected to be qualified as a Regulated Investment Company under
Subchapter M of the Code and that it will maintain such qualification
(under Subchapter M or any successor or similar provision).
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ARTICLE VII. POTENTIAL MATERIAL CONFLICTS
7.1. The Trust agrees that the Board, constituted with a majority
of disinterested trustees, will monitor each Portfolio of the Trust for
the existence of any material irreconcilable conflict between the
interests of the variable annuity contract owners and the variable life
insurance policy owners of all separate accounts investing in the
Trust. The Board shall have the sole authority to determine if a
material irreconcilable conflict exists, and such determination shall
be binding on the Company only if approved in the form of a resolution
by a majority of the Board, or a majority of the disinterested trustees
of the Board. The Board will give prompt notice of any such
determination to the Company.
7.2. The Company agrees that it will be responsible for assisting
the Board in carrying out its responsibilities under the conditions set
forth in the Trust's exemptive application pursuant to which the SEC
has granted the Mixed and Shared Funding Exemptive Order by providing
the Board, as it may reasonably request, with all information
reasonably necessary for the Board to consider any issues raised and
agrees that it will be responsible for promptly reporting any potential
or existing material irreconcilable conflicts of which it is aware to
the Board including, but not limited to, an obligation by the Company
to inform the Board whenever contract owner voting instructions are
disregarded. If it is a Participating Insurance Company for which a
material irreconcilable conflict is relevant, the Company also agrees
that it will at its own cost remedy such conflict up to and including
(a) withdrawing the assets allocable to some or all of the Accounts
from the Trust or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another
Portfolio of the Trust, or submitting to a vote of all affected Policy
owners whether to withdraw assets from the Trust or any Portfolio and
reinvesting such assets in a different investment medium and, as
appropriate, segregating the assets attributable to any appropriate
group of Policy owners that votes in favor of such segregation, or
offering to any of the affected Policy owners the option of segregating
the assets attributable to their Policies, and (b) establishing a new
registered management investment company and segregating the assets
underlying the Policies, unless a majority of Policy owners materially
adversely affected by the conflict have voted to decline the offer to
establish a new registered management investment company.
7.3. A majority of the disinterested trustees of the Board shall
determine whether any proposed action by the Company adequately
remedies any material irreconcilable conflict. In the event that the
Board determines that any proposed action does not adequately remedy
any material irreconcilable conflict, the Company will withdraw from
investment in the Trust each of the Accounts designated by the
disinterested trustees and terminate this Agreement within six (6)
months after the Board informs the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination
shall be limited to the extent required to remedy any such material
irreconcilable conflict as determined by a majority of the
disinterested trustees of the Board.
7.4. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules promulgated thereunder with
respect to mixed or shared funding (as defined in the Mixed and Shared
Funding Exemptive Order) on terms and conditions materially different
from those contained in the Mixed and Shared Funding Exemptive Order,
then (a) the Trust and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with
Rule 6e-2 and 6e-3(T), as
- 10 -
amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable; and (b) Sections 3.5, 3.6, 7.1, 7.2, 7.3 and 7.4 of this
Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in
such Rule(s) as so amended or adopted.
ARTICLE VIII. INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify and hold harmless the Trust,
MFS, any affiliates of MFS, and each of their respective
directors/trustees, officers and each person, if any, who controls the
Trust or MFS within the meaning of Section 15 of the 1933 Act, and any
agents or employees of the foregoing (each an "Indemnified Party," or
collectively, the "Indemnified Parties" for purposes of this Section
8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Company) or expenses (including reasonable counsel fees) to which any
Indemnified Party may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Shares or the Policies
and:
(a) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in the registration statement, prospectus
or statement of additional information, periodic
reports, or proxy materials for the Policies or
contained in the Policies or sales literature or
other promotional material for the Policies (or any
amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading provided that
this agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or
such alleged statement or omission was made in
reasonable reliance upon and in conformity with
information furnished to the Company or its designee
by or on behalf of the Trust or MFS for use in the
registration statement, prospectus or statement of
additional information, periodic reports, or proxy
materials for the Policies or in the Policies or
sales literature or other promotional material (or
any amendment or supplement) or otherwise for use in
connection with the sale of the Policies or Shares;
or
(b) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus, statement of additional
information, periodic reports, or proxy materials or
sales literature or other promotional material of the
Trust not supplied by the Company or its designee, or
persons under its control and on which the Company
has reasonably relied) or wrongful conduct of the
Company or persons under its control, with respect to
the sale or distribution of the Policies or Shares;
or
(c) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the
registration statement, prospectus, statement of
additional information, periodic reports, or proxy
materials, or sales literature or other promotional
literature of the Trust, or any amendment thereof or
supplement thereto, or the omission or alleged
omission to state therein a material fact required
- 11 -
to be stated therein or necessary to make the
statement or statements therein not misleading, if
such statement or omission was made in reliance upon
and in conformity with information furnished to the
Trust by or on behalf of the Company; or
(d) arise out of or result from any material breach of
any representation and/or warranty made by the
Company in this Agreement or arise out of or result
from any other material breach of this Agreement by
the Company; or
(e) arise as a result of any failure by the Company to
provide the services and furnish the materials under
the terms of this Agreement;
as limited by and in accordance with the provisions of this Article
VIII.
8.2. INDEMNIFICATION BY THE TRUST
The Trust agrees to indemnify and hold harmless the Company
and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act,
and any agents or employees of the foregoing (each an "Indemnified
Party," or collectively, the "Indemnified Parties" for purposes of this
Section 8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Trust) or expenses (including reasonable counsel fees) to which any
Indemnified Party may become subject under any statute, at common law
or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to
the sale or acquisition of the Shares or the Policies and:
(a) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in the registration statement, prospectus,
statement of additional information, periodic
reports, or proxy materials or sales literature or
other promotional material of the Trust (or any
amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statement therein not misleading, provided that
this agreement to indemnify shall not -------- apply
as to any Indemnified Party if such statement or
omission or such alleged statement or omission was
made in reasonable reliance upon and in conformity
with information furnished to the Trust, MFS, the
Underwriter or their respective designees by or on
behalf of the Company for use in the registration
statement, prospectus or statement of additional
information, periodic reports, or proxy materials for
the Trust or in sales literature or other promotional
material for the Trust (or any amendment or
supplement) or otherwise for use in connection with
the sale of the Policies or Shares; or
(b) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus, statement of additional
information, periodic reports, or proxy materials or
sales literature or other promotional material for
the Policies not supplied by the Trust, MFS, the
Underwriter or any of their respective designees or
persons under their respective control and on which
any such entity has reasonably relied) or wrongful
conduct of
- 12 -
the Trust or persons under its control, with respect
to the sale or distribution of the Policies or
Shares; or
(c) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the
registration statement, prospectus, statement of
additional information, periodic reports, or proxy
materials, or sales literature or other promotional
literature of the Accounts or relating to the
Policies, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein
or necessary to make the statement or statements
therein not misleading, if such statement or omission
was made in reliance upon and in conformity with
information furnished to the Company by or on behalf
of the Trust, MFS or the Underwriter; or
(d) arise out of or result from any material breach of
any representation and/or warranty made by the Trust
in this Agreement (including a failure by any
Portfolios, whether unintentional or in good faith or
otherwise, to comply with the diversification
requirements specified in Article VI of this
Agreement) or arise out of or result from any other
material breach of this Agreement by the Trust; or
(e) arise out of or result from the materially incorrect
or untimely calculation or reporting of the daily net
asset value per share or dividend or capital gain
distribution rate; or
(f) arise as a result of any failure by the Trust to
provide the services and furnish the materials under
the terms of the Agreement;
as limited by and in accordance with the provisions of this Article
VIII.
8.3. In no event shall the Trust be liable under the
indemnification provisions contained in this Agreement to any
individual or entity, including without limitation, the Company, or any
Participating Insurance Company or any Policy holder, with respect to
any losses, claims, damages, liabilities or expenses that arise out of
or result from (i) a breach of any representation, warranty, and/or
covenant made by the Company hereunder or by any Participating
Insurance Company under an agreement containing substantially similar
representations, warranties and covenants; (ii) the failure by the
Company or any Participating Insurance Company to maintain its
segregated asset account (which invests in any Portfolio) as a legally
and validly established segregated asset account under applicable state
law and as a duly registered unit investment trust under the provisions
of the 1940 Act (unless exempt therefrom); or (iii) the failure by the
Company or any Participating Insurance Company to maintain its variable
annuity and/or variable life insurance contracts (with respect to which
any Portfolio serves as an underlying funding vehicle) as life
insurance, endowment or annuity contracts under applicable provisions
of the Code.
8.4. Neither the Company nor the Trust shall be liable under the
indemnification provisions contained in this Agreement with respect to
any losses, claims, damages, liabilities or expenses to which an
Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, willful misconduct, or gross
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations
and duties under this Agreement.
- 13 -
8.5. Promptly after receipt by an Indemnified Party under this
Section 8.5. of notice of commencement of any action, such Indemnified
Party will, if a claim in respect thereof is to be made against the
indemnifying party under this section, notify the indemnifying party of
the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any Indemnified Party otherwise than under this section. In
case any such action is brought against any Indemnified Party, and it
notified the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, assume the defense thereof, with counsel
satisfactory to such Indemnified Party. After notice from the
indemnifying party of its intention to assume the defense of an action,
the Indemnified Party shall bear the expenses of any additional counsel
obtained by it, and the indemnifying party shall not be liable to such
Indemnified Party under this section for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the
defense thereof other than reasonable costs of investigation.
8.6. Each party agrees promptly to notify the other parties of the
commencement of any litigation or proceeding against it or any of its
respective officers, directors, trustees, employees or 1933 Act control
persons in connection with the Agreement, the issuance or sale of the
Policies, the operation of the Accounts, or the sale or acquisition of
Shares.
8.7. A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this
Article VIII. The indemnification provisions contained in this Article
VIII shall survive any termination of this Agreement.
ARTICLE IX. APPLICABLE LAW
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth
of Massachusetts.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and
regulations as the SEC may grant and the terms hereof shall be
interpreted and construed in accordance therewith.
ARTICLE X. NOTICE OF FORMAL PROCEEDINGS
The Trust, MFS, and the Company agree that each such party shall
promptly notify the other parties to this Agreement, in writing, of the
institution of any formal proceedings brought against such party or its
designees by the NASD, the SEC, or any insurance department or any other
regulatory body regarding such party's duties under this Agreement or related to
the sale of the Policies, the operation of the Accounts, or the purchase of the
Shares.
ARTICLE XI. TERMINATION
11.1. This Agreement shall continue in full force and effect until
terminated with respect to the Accounts, or one, some, or all
Portfolios:
(a) at the option of any party upon sixty (60) days
advance written notice to the other parties; or
- 14 -
(b) at the option of the Company upon written notice to
the other parties to the extent that the Shares of
Portfolios are not reasonably available to meet the
requirements of the Policies or are not "appropriate
funding vehicles" for the Policies, as reasonably
determined by the Company. Without limiting the
generality of the foregoing, the Shares of a
Portfolio would not be "appropriate funding vehicles"
if, for example, such Shares did not meet the
diversification or other requirements referred to in
Article VI hereof; or if the Company would be
permitted to disregard Policy owner voting
instructions pursuant to Rule 6e-2 or 6e-3(T) under
the 1940 Act. Prompt notice of the election to
terminate for such cause and an explanation of such
cause shall be furnished to the Trust by the Company;
or
(c) at the option of the Trust or MFS upon written notice
to the other parties upon institution of formal
proceedings against the Company or NY Life
Distributors by the NASD, the SEC, or any insurance
department or any other regulatory body regarding the
Company's or NY Life Distributors' duties under this
Agreement or related to the sale of the Policies, the
operation of the Accounts, or the purchase of the
Shares; or
(d) at the option of the Company upon written notice to
the other parties upon institution of formal
proceedings against the Trust, the Underwriter or MFS
by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body
regarding the Trust's, the Underwriter's or MFS'
duties under this Agreement or related to the sale of
the Shares; or
(e) at the option of the Company, the Trust or MFS upon
written notice to the other parties, upon receipt of
any necessary regulatory approvals and/or the vote of
the Policy owners having an interest in the Accounts
(or any subaccounts) to substitute the shares of
another investment company for the corresponding
Portfolio Shares in accordance with the terms of the
Policies for which those Portfolio Shares had been
selected to serve as the underlying investment media.
The Company will give thirty (30) days' prior written
notice to the Trust of the Date of any proposed vote
or other action taken to replace the Shares; or
(f) termination by either the Trust or MFS by written
notice to the Company, if either one or both of the
Trust or MFS respectively, shall determine, in their
sole judgment exercised in good faith, that the
Company has suffered a material adverse change in its
business, operations, financial condition, or
prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(g) termination by the Company by written notice to the
Trust and MFS, if the Company shall determine, in its
sole judgment exercised in good faith, that the Trust
or MFS has suffered a material adverse change in this
business, operations, financial condition or
prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(h) at the option of any party to this Agreement, upon
another party's material breach of any provision of
this Agreement; or
- 15 -
(i) upon assignment of this Agreement, unless made with
the written consent of the parties hereto.
11.2. Termination of this Agreement pursuant to the foregoing
provisions shall be effective upon or following notice as required by
this Agreement. The notice shall specify the Portfolio or Portfolios,
Policies and, if applicable, the Accounts as to which the Agreement is
to be terminated.
11.3. It is understood and agreed that the right of any party hereto
to terminate this Agreement pursuant to Section 11.1(a) may be
exercised for cause or for no cause.
11.4. Notwithstanding any termination of this Agreement, the Trust
and MFS shall, at the option of the Company, continue to make available
additional shares of the Portfolios pursuant to the terms and
conditions of this Agreement, for all Policies in effect on the
effective date of termination of this Agreement (the "Existing
Policies"), except as otherwise provided under Article VII of this
Agreement. Specifically, without limitation, the owners of the Existing
Policies shall be permitted to transfer or reallocate investment under
the Policies, redeem investments in any Portfolio and/or invest in the
Trust upon the making of additional purchase payments under the
Existing Policies.
ARTICLE XII. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail, overnight courier or facsimile to the other party at the address
of such party set forth below or at such other address as such party may from
time to time specify in writing to the other party.
If to the Trust:
MFS VARIABLE INSURANCE TRUST
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Secretary
If to the Company:
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Rock, Senior Vice President
- 16 -
If to MFS:
MASSACHUSETTS FINANCIAL SERVICES COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, General Counsel
ARTICLE XIII. MISCELLANEOUS
13.1. Subject to the requirement of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Policies and all information reasonably
identified as confidential in writing by any other party hereto and,
except as permitted by this Agreement or as otherwise required by
applicable law or regulation, shall not disclose, disseminate or
utilize such names and addresses and other confidential information
without the express written consent of the affected party until such
time as it may come into the public domain.
13.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
13.3. This Agreement may be executed simultaneously in one or more
counterparts, each of which taken together shall constitute one and the
same instrument.
13.4. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of the Agreement shall not be affected thereby.
13.5. The Schedule attached hereto, as modified from time to time,
is incorporated herein by reference and is part of this Agreement.
13.6. Each party hereto shall cooperate with each other party in
connection with inquiries by appropriate governmental authorities
(including without limitation the SEC, the NASD, and state insurance
regulators) relating to this Agreement or the transactions contemplated
hereby.
13.7. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights,
remedies and obligations, at law or in equity, which the parties hereto
are entitled to under state and federal laws.
13.8. A copy of the Trust's Declaration of Trust is on file with the
Secretary of State of The Commonwealth of Massachusetts. The Company
acknowledges that the obligations of or arising out of this instrument
are not binding upon any of the Trust's trustees, officers, employees
or shareholders individually, but are binding solely upon the assets
and property of the Trust in accordance with its proportionate interest
hereunder. The Company further acknowledges that the assets and
liabilities of each Portfolio are separate and distinct and that the
obligations of or arising out of this instrument are binding solely
upon the assets or property of the Portfolio on whose behalf the Trust
has executed this instrument. The Company also agrees that the
obligations of each Portfolio hereunder shall be several and not joint,
in accordance with its proportionate interest hereunder, and the
Company agrees not to proceed against any Portfolio for the obligations
of another Portfolio.
- 17 -
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified above.
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By its authorized officer,
By: ___________________________________________
Title: ________________________________________
MFS VARIABLE INSURANCE TRUST,
ON BEHALF OF THE PORTFOLIOS
By its authorized officer and not individually,
_______________________________________________
Xxxxx X. Xxxxxxxxx, Xx.
Assistant Secretary
MASSACHUSETTS FINANCIAL SERVICES COMPANY
By its authorized officer,
_______________________________________________
Xxxxxxx X. Xxxxx
Senior Vice President
- 18 -
As of April 30, 2003
SCHEDULE A
ACCOUNTS, POLICIES AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
NAME OF SEPARATE
ACCOUNT AND DATE SHARE CLASS
ESTABLISHED BY BOARD OF POLICIES FUNDED (INITIAL OR PORTFOLIOS
DIRECTORS BY SEPARATE ACCOUNT SERVICE CLASS) APPLICABLE TO POLICIES
--------- ------------------- -------------- ----------------------
NYLIAC Variable Variable Universal Life #793-90 Initial MFS Research Series
Universal Life Survivorship VUL #797-150 MFS Investors Trust Series
Separate Account-I Survivorship VUL #302-150 MFS Utilities Series
(June 4, 1993) Variable Universal Life 2000 #799-90 MFS New Discovery Series
Variable Universal Life 2000 #302-90
Single Premium Variable Universal
Life #301-95
Single Premium Variable Universal Life
#302-95
Pinnacle Variable Universal Life #300-80 &
#300-82
Pinnacle Survivorship VUL #300-81 & #300-83
NYLIAC Corporate Corporate Sponsored VUL #796-40 Initial MFS Research Series
Sponsored Variable Corporate Executive Series VUL MFS Investors Trust Series
Universal Life #300-40 MFS Utilities Series
Separate Account-I Corporate Executive Series VUL II (CorpExec MFS New Discovery Series
(May 24, 1996) VUL) #300-40
NYLIAC Variable Annuity LifeStages Flexible Premium VA Initial MFS Research Series
Separate Account - I (The Original) #933-190 MFS Investors Trust Series
(October 15, 1992) MFS Utilities Series
NYLIAC Variable Annuity LifeStages Flexible Premium VA Initial MFS Research Series
Separate Account - II (The Original) #933-190 MFS Investors Trust Series
(October 15, 1992) MFS Utilities Series
- 19 -
NYLIAC Variable Annuity LifeStages VA #995-190 Initial - MFS Research Series
Separate Account - III MainStay Plus VA #999-190 (Supersedes prior to MFS Investors Trust Series
(November 30, 1994) 998-190) 6/2/2003 MFS Utilities Series
New LifeStatges Flexible Premium VA Service Class
#000-190 (New policies
LifeStages Premium Plus VA #200-195 issued on and
LifeStages Access VA #200-090 after
MainStay Access VA #200-190 6/2/2003)
MainStay Premium Plus VA #200-190
AmSouth Premium Plus VA #200-190
LifeStages Select VA #202-190
MainStay Select VA #202-190
LifeStages Essentials VA #202-192
MainStay Plus II VA #202-192
LifeStages Premium Plus II VA (#203-195)
MainStay Premium Plus II VA (#203-190)
Portfolios offered by the Trust to the Company
MFS(R) Research Series
MFS(R) Investors Trust Series (formerly Growth and Income Series)
MFS(R) Utilities Series
MFS(R) New Discovery Series
Effective June 2, 2003
MFS(R) Research Series (Service Class)
MFS(R) Investors Trust Series (Service Class)(formerly Growth and Income Series)
MFS(R) Utilities Series (Service Class)
- 20 -
