Exhibit (d)(8)
SUB-ADVISORY AGREEMENT
MAINSTAY VP SERIES FUND, INC.
SUB-ADVISORY AGREEMENT, made as of the 15th day of December, 2005 (the
"Agreement"), between New York Life Investment Management LLC, a Delaware
limited liability company (the "Manager"), on behalf of MainStay VP Series Fund,
Inc. (the "Fund"), and Xxxxxxx Capital Management, Inc., a Minnesota corporation
(the "Subadviser").
WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end, management investment company; and
WHEREAS, the Fund is authorized to issue separate series, each of which
may offer a separate class of shares, each series having its own investment
objective or objectives, policies, and limitations; and
WHEREAS, the Fund currently offers shares in multiple series, may offer
shares of additional series in the future, and intends to offer shares of
additional series in the future; and
WHEREAS, the Manager entered into a Management Agreement, dated 15th day
of May, 2001, with the Fund, on behalf of each Series of the Fund, which may be
amended from time to time (collectively the "Management Agreement"); and
WHEREAS, under the Management Agreement, the Manager has agreed to provide
certain investment advisory and related administrative services to the Fund; and
WHEREAS, the Management Agreement permits the Manager to delegate certain
of its investment advisory duties under the Management Agreement to one or more
subadvisers; and
WHEREAS, the Manager wishes to retain the Subadviser to furnish certain
investment advisory services to one or more of the series of the Fund, 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 Fund, the Manager,
and the Subadviser as follows:
Appointment. The Manager hereby appoints Xxxxxxx Capital Management, Inc.
to act as subadviser 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 Fund designates one or more series other than the Series
with respect to which the Fund 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 Fund and
Manager in writing, whereupon such series shall become a Series hereunder, and
be subject to this Agreement.
Portfolio Management Duties. Subject to the supervision of the Fund's
Board of Directors 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 Fund's Registration
Statement filed with the Securities and Exchange Commission (the "Commission"),
as amended, and all policies and procedures of the Fund, copies of which shall
be sent to the Subadviser by the Manager. The Subadviser further agrees as
follows:
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.
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 Fund's Board of Directors
of which the Subadviser has received a copy, and the provisions of the
Registration Statement of the Fund under the Securities Act of 1933, as amended
(the "1933 Act"), and the 1940 Act, as supplemented or amended, of which the
Subadviser has received a copy.
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 Fund and to
such other clients, subject to review by the Manager and the Board of Directors.
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 automatic
transmission of the confirmation of such trades to the Fund's custodian and
portfolio accounting agent.
The Subadviser will monitor on a daily basis the determination by the
portfolio accounting agent for the Fund of the valuation of portfolio securities
and other investments of the Series. The Subadviser will assist the custodian
and portfolio accounting agent for the Fund in determining or confirming,
consistent with the procedures and policies stated in the Registration Statement
for the Fund, the value of any portfolio securities or other assets of the
Series for which the custodian and portfolio accounting agent seek assistance
from, or which they identify for review by, the Subadviser.
The Subadviser will make available to the Fund 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 Fund) as are necessary to
assist the Fund and the Manager to comply with requirements of the 1940 Act and
the Investment Advisers Act of 1940, as amended (the "Advisers Act"), as well as
other applicable laws. The 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 Fund are being conducted in a manner consistent with applicable laws and
regulations.
The Subadviser will provide reports to the Fund's Board of Directors, for
consideration at meetings of the Board, on the investment program for the Series
and the issuers and securities represented in the Series' portfolio, and will
furnish the Fund's Board of Directors with respect to the Series such periodic
and special reports as the Directors and the Manager may reasonably request.
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 subadviser any company
that would be an "investment adviser," as that term is defined in the 1940 Act,
to the Series unless the contract with such company is approved by a majority of
the Fund's Board of Directors and by a majority of Directors who are not parties
to any agreement or contract with such company and who are not "interested
persons," as defined in the 1940 Act, of the Fund, the Manager, or the
Subadviser, or any such company that is retained as subadviser, and also is
approved by the vote of a majority of the outstanding voting securities of the
applicable Series of the Fund to the extent required by the 1940 Act. The
Subadviser shall be responsible for making reasonable inquiries and for
reasonably ensuring that any employee of the Subadviser, any subadviser 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 Fund assets:
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
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
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.
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
Fund, which include the following: price (including the applicable brokerage
commission or dollar spread); the size of the order; the nature of the market
for the security; the timing of the transaction; the reputation, experience and
financial stability of the broker-dealer involved; the quality of the service;
the difficulty of execution, and the execution capabilities and operational
facilities of the firm involved; and the firm's risk in positioning a block of
securities. Accordingly, the price to the Series in any transaction may be less
favorable than that available from another broker-dealer if the difference is
reasonably justified, in the judgment of the Subadviser in the exercise of its
fiduciary obligations to the Fund, by other aspects of the portfolio execution
services offered. Subject to such policies as the Board of Directors may
determine, and consistent with Section 28(e) of the Securities Exchange Act of
1934, as amended, the 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 Fund'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 Directors of the Fund, indicating the broker-dealers to which such
allocations have been made and the basis therefore.
Disclosure about Subadviser. The Subadviser has reviewed the
post-effective amendment to the Registration Statement for the Fund 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
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 agrees notify the Manager promptly of any material
changes in such information and to perform such review upon request, in
connection with updates to the Registration Statement. 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.
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
Fund shall be responsible for all the expenses of the Fund's operations,
including, but not limited to:
the fees and expenses of Directors who are not interested persons of the
Manager or of the Fund;
the fees and expenses of each Series which relate to (A) the custodial
function and the recordkeeping connected therewith, (B) the maintenance of the
required accounting records of the Series not being maintained by the Manager,
(C) the pricing of the Series' Shares, including the cost of any pricing service
or services that may be retained pursuant to the authorization of the Directors
of the Fund, and (D) for both mail and wire orders, the cashiering function in
connection with the issuance and redemption of the Series' Shares;
the fees and expenses of the Fund's transfer and dividend disbursing
agent, that may be the custodian, which relate to the maintenance of each
shareholder account;
the charges and expenses of legal counsel (including an allocable portion
of the cost of maintaining an internal legal and compliance department) and
independent accountants for the Fund;
brokers' commissions and any issue or transfer taxes chargeable to the
Fund in connection with its securities transactions on behalf of the Series;
all taxes and business fees payable by the Fund or the Series to federal,
state or other governmental agencies;
the fees of any trade association of which the Fund may be a member;
the cost of share certificates representing Series Shares;
the fees and expenses involved in registering and maintaining
registrations of the Fund and of its Shares with the Commission, registering the
Fund as a broker or dealer, and qualifying its Shares under state securities
laws, including the preparation and printing of the Fund's registration
statements and prospectuses for filing under federal and state securities laws
for such purposes;
allocable communications expenses with respect to investor services and
all expenses of shareholders' and Directors' meetings and of preparing, printing
and mailing reports to shareholders in the amount necessary for distribution to
the shareholders;
litigation and indemnification expenses and other extraordinary expenses
not incurred in the ordinary course of the Fund's business; and
any expenses assumed by the Series pursuant to a Plan of Distribution
adopted in conformity with Rule 12b-1 under the 1940 Act.
Compensation. For the services provided, the Manager will pay the
Subadviser a fee, payable monthly, as described on Schedule A.
Seed Money. The Manager agrees that the Subadviser shall not be
responsible for providing money for the initial capitalization of the Series.
Compliance.
The Subadviser agrees to assist the Manager and the Fund in complying with
the Fund's obligations under Rule 38a-1 under the 1940 Act, including but not
limited to: (a) periodically providing the Fund with information about, and
independent third-party reports on, the Subadviser's compliance program adopted
pursuant to Rule 206(4)-7 under the Advisers Act ("Subadviser's Compliance
Program"); (b) reporting any material deficiencies in the Subadviser's
Compliance Program to the Fund within a reasonable time; and (c) reporting any
material changes to the Subadviser's Compliance Program to the Fund within a
reasonable time. The Subadviser understands that the Board of Directors of the
Fund is required to approve the Subadviser's Compliance Program on at least an
annual basis, and acknowledges that this Agreement is conditioned upon the Board
of Directors approval of the Subadviser's Compliance Program.
The Subadviser agrees that it shall immediately notify the Manager and the
Fund: (1) in the event that the Commission, or by another regulatory body, has
censured or otherwise penalized the 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 Fund 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 Fund,
or any amendment or supplement thereto, or of any statement contained therein
that becomes untrue in any material respect.
The Manager agrees that it shall immediately notify the Subadviser: (1) in
the event that the Commission has censured the Manager or the Fund; placed
limitations upon either of their activities, functions, or operations; suspended
or revoked the Manager's registration as an investment adviser; or commenced
proceedings or an investigation that may result in any of these actions; or (2)
upon having a reasonable basis for believing that the Series has ceased to
qualify or might not qualify as a regulated investment company under Subchapter
M of the Internal Revenue Code.
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:
Articles of Incorporation of the Fund, filed with the State of Maryland
(such Articles of Incorporation, as in effect on the date hereof and as amended
from time to time, is herein called "Articles of Incorporation");
By-Laws of the Fund;
Certified Resolutions of the Directors of the Fund authorizing the
appointment of the Subadviser and approving the form of this Agreement;
Written Instrument to Establish and Designate Separate Series of Shares;
Registration Statement under the 1940 Act and the Securities Act of 1933,
as amended, on Form N-lA, as filed with the Commission relating to the Series
and the Series' Shares, and all amendments thereto;
Notification of Registration of the Fund under the 1940 Act on Form N-8A,
as filed with the Commission, and all amendments thereto; and
Prospectus and Statement of Additional Information of the Series.
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 Fund, and further agrees to surrender
promptly to the Fund any of such records upon the Fund's or the Manager's
request; provided, however, that the 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-l under the 1940 Act and to preserve the records
required by Rule 204-2 under the Advisers Act for the period specified in the
Rule.
Cooperation. Each party to this Agreement agrees to cooperate with each
other party and with all appropriate governmental authorities having the
requisite jurisdiction (including, but not limited to, the Commission) in
connection with any investigation or inquiry relating to this Agreement or the
Fund.
Representations Respecting Subadviser. The Manager and the Fund agree that
neither the Fund, the Manager, nor affiliated persons of the Fund or the Manager
shall, except with the prior permission of the 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 Fund shares, as they may be amended
or supplemented from time to time, or in reports or proxy statements for the
Fund, or in sales literature or other promotional material approved in advance
by the 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.
Confidentiality. The Subadviser will treat as proprietary and confidential
any information obtained in connection with its duties hereunder, including all
records and information pertaining to the Fund and its prior, present or
potential shareholders. The Subadviser will not use such information for any
purpose other than the performance of its responsibilities and duties hereunder.
Such information may not be disclosed except after prior notification to and
approval in writing by the Fund or if such disclosure is expressly required or
requested by applicable federal or state regulatory authorities.
Control. Notwithstanding any other provision of the Agreement, it is
understood and agreed that the Fund shall at all times retain the ultimate
responsibility for and control of all functions performed pursuant to this
Agreement, and reserves the right to direct, approve, or disapprove any action
hereunder taken on its behalf by the Subadviser.
Liability. Except as may otherwise be required by the 1940 Act or the
rules thereunder or other applicable law, the Fund and the Manager agree that
the 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, 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.
Indemnification.
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 Fund, which
(1) may be based upon any misfeasance, malfeasance, or nonfeasance by the
Manager, any of its employees or representatives or any affiliate of or any
person acting on behalf of the Manager, or (2) may be based upon any untrue
statement or alleged untrue statement of a material fact supplied by, or which
is the responsibility of, the Manager and contained in the Registration
Statement or Prospectus covering shares of the Fund or a Series, or any
amendment thereof or any supplement thereto, or the omission or alleged omission
to state therein a material fact known or which should have been known to the
Manager and was required to be stated therein or necessary to make the
statements therein not misleading, unless such statement or omission was made in
reliance upon information furnished to the
Manager or the Fund or to any affiliated person of the Manager by a 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.
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 Fund or a Series, or any
amendment or supplement thereto, or the omission or alleged omission to state
therein a material fact known or which should have been known to the 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, the Fund, or any affiliated person of
the Manager or Fund 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.
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, thereforee,
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.
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 represent both the Subadviser and the Manager Indemnified Person
would result in a conflict of interests and, thereforee, 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.
Duration and Termination. This Agreement shall become effective on the
date first indicated above. Unless terminated as provided herein, the Agreement
shall remain in full force and effect for an initial period of two (2) years
from the date first indicated above, and continue on an annual basis thereafter
with respect to the Series, provided that such continuance is specifically
approved each year by (a) the vote of a majority of the entire Board of
Directors of the Fund, or by the vote of a majority of the outstanding voting
securities (as defined in the 0000 Xxx) of the Series, and (b) the vote of a
majority of those Directors who are not parties to this Agreement or interested
persons (as such term is defined in the 0000 Xxx) of any such party to this
Agreement cast in person at a meeting called for the purpose of voting on such
approval.
Any approval of this Agreement by the holders of a majority of the outstanding
shares (as defined in the 0000 Xxx) of a Series shall be effective to continue
this Agreement with respect to the Series notwithstanding (i) that this
Agreement has not been approved by the holders of a majority of the outstanding
shares of any other Series or (ii) that this agreement has not been approved by
the vote of a majority of the outstanding shares of the Fund, unless such
approval shall be required by any other applicable law or otherwise.
Notwithstanding the foregoing, this Agreement may be terminated for each or any
Series hereunder: (a) by the Manager at any time without penalty, upon sixty
(60) days' written notice to the Subadviser and the Fund; (b) at any time
without payment of any penalty by the Fund, upon the vote of a majority of the
Fund's Board of Directors or a majority of the outstanding voting securities of
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 Fund. In the event of
termination for any reason, all records of each Series for which the Agreement
is terminated shall promptly be returned to the Manager or the Fund, free from
any claim or retention of rights in such record by the 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 Fund is assigned or
terminates for any other reason. In the event this Agreement is terminated or is
not approved in the manner described above, the Sections numbered 2(f), 10, 11,
12, 14, 15, and 18 of this Agreement shall remain in effect, as well as any
applicable provision of this Section 16.
Amendments. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought, and no amendment of this Agreement shall be effective
until approved by an affirmative vote of (i) the holders of a majority of the
outstanding voting securities of the Series, and (ii) the Directors of the Fund,
including a majority of the Directors of the Fund who are not interested persons
of any party to this Agreement, cast in person at a meeting called for the
purpose of voting on such approval, if such approval is required by applicable
law.
Use of Name.
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 Fund and/or the Series. Upon termination of the
Management Agreement between the Fund and the Manager, the Subadviser shall
forthwith cease to use such name (or derivative or logo).
It is understood that the names Xxxxxxx, Xxxxxxx Capital Management, or
any derivative thereof or logo associated with those names, are the valuable
property of the Subadviser and its affiliates and that the Fund and/or the
Series have the right to use such names (or derivative or logo) in offering
materials of the Fund with the approval of the Subadviser and for so long as the
Subadviser is a Subadviser to the Fund and/or the Series. Upon termination of
this Agreement, the Fund shall forthwith cease to use such names (or derivative
or logo).
Amended and Restated Articles of Incorporation. A copy of the Articles of
Incorporation for the Fund is on file with the Secretary of Maryland. The
Articles of Incorporation has been executed on behalf of the Fund by the
Directors of the Fund in their capacity as Directors of the Fund and not
individually. The obligations of this Interim Agreement shall be binding upon
the assets and property of the Fund and shall not be binding upon any Director,
officer, or shareholder of the Fund individually.
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 Fund. Absent contrary
instructions received in writing from the Fund, 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
Fund, and these records shall be available to the Fund upon request.
Notice. Any notice or other communication required to be given pursuant to
this Agreement shall be deemed duly given if delivered or mailed by registered
mail, postage prepaid, (1) to the Manager at NYLIM Center, 000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: President; or (2) to the
Subadviser at 4720 IDS Tower, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000.
Miscellaneous.
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.
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.
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.
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.
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.
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 Jerstrom By: /s/ Xxxxx X. Xxxxxxx
---------------------- ---------------------
Name: Xxxx Jerstrom Name: Xxxxx X. Xxxxxxx
Title: Second Vice President Title: President
XXXXXXX CAPITAL MANAGEMENT, INC.
Attest: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
---------------------- ---------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Managing Director Title: Chief Executive Officer
SCHEDULE A
1. Subadviser shall provide services for the following series of the Fund:
- MainStay VP Growth Portfolio
2. Subadviser shall be paid:
First $250 MM = 40 bps
Next $250 MM = 35 bps
Next $250 MM = 30 bps
Next $250 MM = 25 bps
Over $1 billion = 20 bps
The Sub-Advisory Fee will be computed daily and paid monthly, calculated
on the basis of the aggregate average daily net asset value of all
Xxxxxxx-serviced assets in all investment companies managed by NYLIM,
including the MainStay Large Cap Fund, during the preceding month.
