Exhibit (m)(2)
12B-1 PLAN SERVICES AGREEMENT FOR THE
SERVICE CLASS SHARES OF MAINSTAY VP SERIES FUND, INC.
THIS AGREEMENT, made and entered into as of the 13th day of May, 2003, between
NYLIFE Distributors Inc. (the "Distributor") and New York Life Insurance and
Annuity Corporation (the "Company").
RECITALS
1. The Distributor is the distributor for the Service Class shares of
the Portfolios (the "Portfolios") of the MainStay VP Series Fund, Inc.
(the "Fund").
2. The Company is a life insurance company that uses Service Class shares
of one or more Portfolios as investment vehicles under certain variable
annuity and/or variable life insurance contracts ("Variable Contracts")
issued by the Company. The Portfolios may be among several investment
options offered under the Variable Contracts.
3. The Company and the Fund have entered into a Stock Sale Agreement, dated
June 4, 1993, as may be amended from time to time (the "Stock Sale
Agreement"), pursuant to which the Company, on behalf of certain of its
separate accounts (the "Separate Accounts"), purchases Service Class
shares of certain Portfolios.
4. Pursuant to Rule 12b-1 under the Investment Company Act of 1940 (the
"1940 Act"), the Fund has adopted a Distribution and Service Plan (the
"12b-1 Plan") with respect to the Service Class shares of the Portfolios
pursuant to which each Portfolio pays the Distributor, for services
rendered under the Plan, a distribution or service fee at the annualized
rate of 0.25% of the average daily net assets of the Portfolio's Service
Class shares ("12b-1 Fee").
5. The 12b-1 Plan authorizes the Distributor to retain the 12b-1 Fee or to
use the 12b-1 Fee to compensate financial institutions and
organizations, such as the Company, for servicing shareholder accounts
and for services in connection with any activities or expenses primarily
intended to result in the sale of the Service Class shares of the
Portfolios.
6. The Distributor wishes to retain the Company to furnish certain services
pursuant to the 12b-1 Plan and the Company is willing to furnish such
services or cause its affiliates to provide the same.
Accordingly, the following represents the collective intention and understanding
of the Distributor and the Company under this Agreement.
AGREEMENT
1. Services Provided
The Company agrees to provide, or cause its affiliates to provide, the
following 12b-1 Plan services in connection with the Service Class
shares attributable to the Variable Contracts ("Services"): training and
educating agents of the Company about the Fund; telephone and other
communication; the printing of Portfolio Prospectuses, Statements of
Additional Information, and reports for other than existing
shareholders; the preparation, printing, and distribution of sales
literature and advertising materials that mention the Portfolios;
teleservicing support in connection with the Portfolios; delivery and
responding to inquiries respecting Portfolio Prospectuses and/or
Statements of Additional Information, reports, notices, proxies and
proxy statements and other information respecting the Portfolios (but
not including services paid for by the Fund such as printing and
mailing); facilitation of the tabulation of Variable Contract owners'
votes in the event of a meeting of Fund shareholders; maintenance of
Variable Contract records reflecting Service Class shares purchased and
redeemed and Share balances, and conveyance of that information to the
Fund, its transfer agent, or the Distributor as may be reasonably
requested; provision of support services including providing information
about the Fund and its Portfolios and answering questions concerning the
Fund and its Portfolios, including questions respecting Variable
Contract owners' interests in one or more Portfolios; provision and
administration of Variable Contract features for the benefit of Variable
Contract owners participating in the Fund including fund transfers,
dollar cost averaging, asset allocation, portfolio rebalancing, earnings
sweep, and pre-authorized deposits and withdrawals; and provision of
other services as may be agreed upon from time to time.
2. Payment
In consideration of the Services, the Distributor agrees to pay to the
Company or a person designated by the Company a service fee at the rate
of 0.25% on an annualized basis of the average daily net assets of the
Service Class shares of the Portfolios held in Separate Accounts. The
payment under this paragraph shall be calculated and accrued daily by
the Distributor and will be paid monthly, with each monthly payment to
be made within thirty (30) days thereafter.
The Company may use a portion of the payments it receives hereunder to
pay commissions to broker-dealers. In connection therewith, the Company
represents to Distributor that it will serve in the capacity of
"paymaster" as defined in Sentry Insurance a Mutual Company, 1987 SEC
No-Act. LEXIS
2
2750 (pub. avail. Set. 6, 1987) and any subsequent applicable No-Action
Letters.
Unless otherwise agreed, payments of any amounts owed under this
Agreement shall be made by check and mailed to the following address of
the Company:
New York Life Insurance Company
00 Xxxxxxx Xxxxxx - Xxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxx Jaureguilorda
3. Effective Date and Term of Agreement
This Agreement shall not take effect until it has been approved by votes
of a majority of both (a) the Fund's Board of Directors and (b) those
Directors of the Fund who are not "interested persons" of the Fund (as
defined in the 0000 Xxx) and who have no direct or indirect financial
interest in the operation of this Plan or any agreements related to it
(the "Independent Directors"), cast in person at a meeting (or meetings)
called for the purpose of voting on this Agreement; and it shall
continue in effect for a period of more than one year from its effective
date only so long as such continuance is specifically approved at least
annually in the manner provided for approval of this Agreement herein.
4. Reports
The Company will furnish to the Distributor such information as the
Distributor may reasonably request, and will otherwise cooperate with
the Distributor in the preparation of reports to the Board of Directors
concerning this Agreement, as well as any other reports or filings that
may be required by law.
5. Termination
This Agreement may be terminated as to a Portfolio at any time, without
payment of any penalty, by vote of a majority of the Independent
Directors or by a vote of a majority of the outstanding voting
securities of Service Class shares on not less than 30 days' prior
written notice to both parties to the Agreement.
This Agreement may be terminated by either party, without payment of any
penalty, upon 30 days' prior written notice to the other party.
This Agreement will automatically terminate with respect to a Portfolio
in the event of its assignment (as such term is defined in the 0000 Xxx)
with respect to such Portfolio.
3
In addition, either party may terminate this Agreement immediately if at
any time it is determined by any federal or state regulatory authority
that compensation to be paid under this Agreement is no longer permitted
by, or becomes inconsistent with, any federal or state law.
6. Other Agreements
Nothing in this Agreement shall amend, modify or supersede any
contractual terms, obligations or covenants among or between any of the
Company, the Distributor, or the Fund previously or currently in effect,
including those contractual terms, obligations or covenants contained in
the Stock Sale Agreement.
4
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers signing below.
NYLIFE DISTRIBUTORS INC.
/s/ Xxxxxxx X. Xxxxxxx
By: __________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman and President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
/s/ Xxxxxx X. Rock
By: __________________________
Name: Xxxxxx X. Rock
Title: Senior Vice President
5
