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 23 day of February, 2005,
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 Fund Participation
Agreement, dated November [ ], 2004, as may be amended from time to
time, which amended the Stock Sale Agreement, dated June 4, 1993,
(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 the Distributor that it will serve in the
capacity of "paymaster" as defined in Sentry Insurance a Mutual
Company, 1987 SEC No-Act. LEXIS
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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.
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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.
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IN WITNESS HEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers signing below.
NYLIFE DISTRIBUTORS INC.
By: ___________________________
Name: Xxxxxxxxxxx Xxxxx
Title: Chairman and President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: ___________________________
Name: Xxxxxx X. Rock
Title: Senior Vice President
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