DEF 14A
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y13252ddef14a.txt
MAINSTAY VP SERIES FUND, INC.
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-12
MAINSTAY VP SERIES FUND, INC.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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2) Aggregate number of securities to which transaction applies: N/A
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pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined): N/A
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[ ] Fee paid with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
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paid previously. Identify the previous filing by registration statement
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MAINSTAY VP SERIES FUND, INC.
SPECIAL MEETING OF SHAREHOLDERS
OF THE MAINSTAY VP GROWTH PORTFOLIO
TO BE HELD DECEMBER 15, 2005
October 14, 2005
To Our Contract Owners:
Please take note that the SPECIAL MEETING OF SHAREHOLDERS ("Special Meeting") of
the MAINSTAY VP GROWTH PORTFOLIO (the "Portfolio"), a series of MainStay VP
Series Fund, Inc. (the "Fund"), will be held on December 15, 2005, beginning at
11:00 a.m. eastern time, at the offices of New York Life Investment Management
LLC ("NYLIM"), 169 Lackawanna Avenue, Parsippany, New Jersey 07054. As the owner
of a variable annuity contract or a variable life insurance contract (a
"Contract") issued by New York Life Insurance and Annuity Corporation
("NYLIAC"), you have the right to instruct NYLIAC that issued your Contract how
to vote certain shares of the Portfolio at the Special Meeting.
The Fund, a Maryland corporation, currently consists of 21 series. THE
ACCOMPANYING NOTICE OF SPECIAL MEETING AND PROXY STATEMENT RELATE SOLELY TO THE
MAINSTAY VP GROWTH PORTFOLIO, as specified in the Proxy Statement.
At the Special Meeting, and as described in the Proxy Statement accompanying
this letter, you will be asked to approve a new Sub-Advisory Agreement between
NYLIM and Winslow Capital Management, Inc. with respect to the Portfolio.
After careful consideration, the Board of Directors of the Fund has approved the
above-referenced proposal and recommends that shareholders vote "FOR" the
proposal.
Your vote is very important to us regardless of the number of shares that are
attributable to your Contract. Whether or not you plan to attend the Special
Meeting in person, please read the proxy statement and cast your vote promptly.
It is important that your vote be received by no later than the time of the
Special Meeting on December 15, 2005. You will receive a proxy card. There are
several ways to vote your shares, including mail, telephone and the Internet.
Please refer to the proxy card for more information on how to vote. If we do not
receive a response by one of these methods, you may receive a telephone call
from our proxy solicitor, Computershare Fund Services, Inc., reminding you to
vote. If you have any questions before you vote, please contact the Fund by
calling toll-free 1-800-598-2019. We will get you the answers that you need
promptly.
We appreciate your participation and prompt response in this matter and thank
you for your continued support.
Sincerely,
Gary E. Wendlandt
Chairman
Encl.
MAINSTAY VP SERIES FUND, INC.
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
OF THE MAINSTAY VP GROWTH PORTFOLIO
TO BE HELD DECEMBER 15, 2005
To the Contract Owners of the MainStay VP Growth Portfolio:
On behalf of the Board of Directors (the "Board" or the "Directors") of MainStay
VP Series Fund, Inc. (the "Fund"), you are cordially invited to attend a SPECIAL
MEETING OF SHAREHOLDERS (the "Special Meeting") of the MAINSTAY VP GROWTH
PORTFOLIO (the "Portfolio"). The Special Meeting will be held on December 15,
2005, at the offices of New York Life Investment Management LLC ("NYLIM"), 169
Lackawanna Avenue, Parsippany, New Jersey 07054, beginning at 11:00 a.m.,
eastern time.
At the Special Meeting, and as specified in greater detail in the Proxy
Statement accompanying this Notice, shareholders will be asked to consider and
approve the following proposal:
To approve a new Sub-Advisory Agreement between NYLIM and Winslow Capital
Management, Inc. ("Winslow") to appoint Winslow as the new sub-adviser to
the Portfolio.
In addition, shareholders will be asked to consider and approve such other
matters as may properly come before the Special Meeting.
Your attention is directed to the accompanying Proxy Statement for further
information regarding the Special Meeting and the proposal above. You may vote
at the Special Meeting if you are a contract owner of record of the Portfolio as
of the close of business on October 7, 2005 ("Record Date"). If you attend the
Special Meeting, you may vote the shares that are attributable to your contract
in person. Even if you do not attend the Special Meeting, you may vote by proxy
by mail, telephone or the Internet.
Your vote is very important to us. Whether or not you plan to attend the Special
Meeting in person, please vote the enclosed proxy. If you have any questions,
please contact the Fund for additional information by calling toll-free
1-800-598-2019.
By order of the Board of Directors,
Marguerite E. H. Morrison
Secretary
October 14, 2005
IMPORTANT NOTICE:
PLEASE VOTE USING THE ENCLOSED PROXY AS SOON AS POSSIBLE. YOUR VOTE IS
VERY IMPORTANT TO US NO MATTER HOW MANY SHARES ARE ATTRIBUTABLE TO
YOUR CONTRACT. YOU CAN HELP AVOID THE ADDITIONAL EXPENSE OF FURTHER
SOLICITATIONS BY PROMPTLY VOTING THE ENCLOSED PROXY.
INSTRUCTIONS FOR SIGNING PROXY CARDS
The following general rules for signing proxy cards may be of assistance to you
and may help avoid the time and expense involved in validating your vote if you
fail to sign your proxy card properly.
1. INDIVIDUAL ACCOUNTS: Sign your name exactly as it appears in the
registration on the proxy card.
2. JOINT ACCOUNTS: Both parties must sign: the names of the parties
signing should conform exactly to a names shown in the registration
on the proxy card.
3. ALL OTHER ACCOUNTS: The capacity of the individual signing the proxy
card should be indicated unless it is reflected in the form of
registration.
For example:
REGISTRATION VALID
------------ -----
CORPORATE ACCOUNTS
(1) ABC Corp....................................... ABC Corp. John.Doe, Treasurer
(2) ABC Corp....................................... John Doe
(3) ABC Corp. c/o John Doe......................... John Doe
(4) ABC Corp. Profit Sharing Plan.................. John Doe
PARTNERSHIP ACCOUNTS
(1) The XYZ Partnership............................ Jane B. Smith, Partner
(2) Smith and Jones, Limited Partnership........... Jane B. Smith, General Partner
TRUST ACCOUNTS
(1) ABC Trust...................................... Jane B. Doe, Trustee
(2) Jane B. Doe, Trustee u/t/d 12/28/78............ Jane B. Doe, Trustee u/t/d/ 12/28/78
CUSTODIAL OR ESTATE ACCOUNTS
(1) John B. Smith, Cust
f/b/o John B. Smith, Jr. UGMA/UTMA............. John B. Smith,.Custodian f/b/o/ John B.
Smith Jr., UGMA/UTMA
(2) Estate of John B. Smith........................ John B. Smith, Jr.,
Executor
Estate of John B. Smith
Please choose one of the following options to vote your shares:
- By mail, with the enclosed proxy card;
- By touch-tone telephone, with a toll-free call to the telephone
number that appears on your proxy card;
- Through the Internet, by using the Internet address located on you
proxy card and following the instructions on the site; or
- In person at the Special Meeting.
MAINSTAY VP SERIES FUND, INC.
MAINSTAY VP GROWTH PORTFOLIO
51 MADISON AVENUE
NEW YORK, NEW YORK 10010
PROXY STATEMENT
SPECIAL MEETING OF SHAREHOLDERS
OF THE MAINSTAY VP GROWTH PORTFOLIO
TO BE HELD DECEMBER 15, 2005
INTRODUCTION
This Proxy Statement is being furnished to the shareholders of the MainStay VP
Growth Portfolio (the "Portfolio"), a series of MainStay VP Series Fund, Inc.
(the "Fund"), in connection with the solicitation of proxies relating solely to
the Fund, by the Board of Directors of the Fund (the "Board" or the
"Directors"), for a special meeting of shareholders of the Fund (the "Special
Meeting") to be held at the offices of New York Life Investment Management LLC
("NYLIM"), 169 Lackawanna Avenue, Parsippany, New Jersey 07054, on December 15,
2004, beginning at 11:00 a.m. Eastern time. THE BOARD IS SOLICITING PROXIES FROM
SHAREHOLDERS WITH RESPECT TO THE PROPOSAL SET FORTH IN THE ACCOMPANYING NOTICE
(THE "PROPOSAL").
Only shareholders of record who owned shares of any class of the Portfolio at
the close of business on October 7, 2005 (the "Record Date") are entitled to
vote at the Special Meeting and at any adjournments or postponements thereof.
Although New York Life Insurance and Annuity Corporation ("NYLIAC") is the
record owner of the Portfolio's shares, as an owner of a of a variable annuity
contract or a variable life insurance contract ("Contract") issued by NYLIAC
("Contract Owner"), you have the right to instruct NYLIAC how to vote the shares
of the Portfolio that are attributable to your Contract at the Special Meeting.
Each Contract Owner is entitled to give voting instructions with respect to his
or her respective "portion" of shares of the Portfolio as of the Record Date.
The Board plans to distribute this Proxy Statement, the attached Notice of
Special Meeting and the enclosed proxy card on or about October 24, 2005 to all
shareholders of record of the Portfolio.
It is important for you to vote on the issues described in this Proxy Statement.
We recommend that you read this Proxy Statement in its entirety as the
explanations will help you to decide how to vote on the Proposal.
PROPOSAL
APPROVAL OF THE NEW SUB-ADVISORY AGREEMENT BETWEEN
NEW YORK LIFE INVESTMENT MANAGEMENT LLC AND
WINSLOW CAPITAL MANAGEMENT, INC.
At a Board meeting held on June 15, 2005, the Directors of the Fund, including a
majority of the Directors who are not interested persons of the Fund, NYLIM, the
Portfolio's manager, or Winslow Capital Management, Inc. ("Winslow"), as defined
in the Investment Company Act of 1940, as amended (the "1940 Act") (the
"Independent Directors"), approved, on behalf of the Portfolio, an interim
Sub-advisory Agreement between NYLIM and Winslow (the "Interim Sub-Advisory
Agreement"), which is currently in effect, and the proposed Sub-Advisory
Agreement between NYLIM and Winslow (the "New Sub-Advisory Agreement"), pursuant
to which Winslow will manage the assets of the Portfolio on an ongoing basis.
WHY AM I RECEIVING THIS PROXY STATEMENT?
Mutual fund companies are required to obtain shareholder approval for certain
types of changes affecting their funds. This Proxy Statement is being furnished
to you in connection with the solicitation of votes by the Directors of the Fund
with respect to the Portfolio.
You are receiving this Proxy Statement because you are the owner of a Contract,
and some or all of your Contract value is invested in the Portfolio. Although
NYLIAC is the record owner of the Portfolio's shares, as a Contract Owner, you
have the right to instruct NYLIAC how to vote the shares of the Portfolio that
are attributable to your Contract.
WHAT ARE SHAREHOLDERS BEING ASKED TO APPROVE?
THE BOARD RECOMMENDS THAT SHAREHOLDERS VOTE "FOR" THE NEW SUB-ADVISORY
AGREEMENT, WHICH PROVIDES THAT WINSLOW WILL SERVE AS THE NEW SUB-ADVISER TO THE
PORTFOLIO AND WILL MANAGE THE PORTFOLIO'S ASSETS ON AN ONGOING BASIS. As
discussed in greater detail below, NYLIM has proposed that Winslow serve as
sub-adviser to the Portfolio based, among other things, on the nature, quality
and extent of the services Winslow will provide to the Portfolio. The Board
believes it is in the best interests of the Portfolio and its shareholders to
retain Winslow's services.
WHY IS THE NEW SUB-ADVISORY AGREEMENT NECESSARY?
Eagle Asset Management, Inc. ("Eagle") had served as the sub-adviser to the
Portfolio pursuant to a Sub-Advisory Agreement dated April 1, 1998, as amended,
between NYLIM, on behalf of the Portfolio, and Eagle ("Former Sub-Advisory
Agreement"). At a meeting held on June 15, 2005, the Board approved NYLIM's
recommendation to replace Eagle and terminated the Former Sub-Advisory
Agreement, effective upon at least sixty (60) days' written notice to Eagle.
Accordingly, the Board approved the New Sub-Advisory Agreement between NYLIM and
Winslow to appoint Winslow as the new sub-adviser to the Portfolio.
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To ensure the uninterrupted receipt by the Portfolio of sub-advisory services
during the period between the termination of Eagle (which occurred on or about
August 15, 2005) (the "Eagle Termination Date") and the Special Meeting, the
Board of Directors also approved an interim sub-advisory agreement between NYLIM
and Winslow (the "Interim Sub-Advisory Agreement") pursuant to Rule 15a-4 under
the 1940 Act, which became effective as of the Eagle Termination Date and
will remain in effect for 150 days or until Contract Owners approve the New
Sub-Advisory Agreement. Rule 15a-4 permitted Winslow to provide sub-advisory
services to the Portfolio under the Interim Sub-Advisory Agreement without
shareholder approval, subject to certain conditions, including the following:
- Winslow's compensation during the interim period is no
greater than that paid under the Former Sub-Advisory
Agreement; and
- the Board, including the Independent Directors, approved
the Interim Sub-Advisory Agreement.
During the term of the Interim Sub-Advisory Agreement, for the services
provided, NYLIM has agreed to pay to Winslow a fee, payable monthly, based on
the average daily net assets of the Portfolio as follows: 0.40% of the average
daily net asset value of all Winslow-serviced assets in all investment companies
managed by NYLIM, including the Portfolio, up to $250 million; 0.35% of the
average daily net asset value of all Winslow-serviced assets in all investment
companies managed by NYLIM, including the Portfolio, from $250 million to $500
million; 0.30% of the average daily net asset value of all Winslow-serviced
assets in all investment companies managed by NYLIM, including the Portfolio,
from $500 million to $750 million; 0.25% of the average daily net asset value of
all Winslow-serviced assets in all investment companies managed by NYLIM,
including the Portfolio, from $750 million to $1 billion; and .20% of the
average daily net asset value of all Winslow-serviced assets in all investment
companies managed by NYLIM, including the Portfolio, in excess of $1 billion.
NYLIM will bear the sole responsibility for the payment of the sub-advisory fee
to Winslow.
WHAT DID THE BOARD CONSIDER IN APPROVING THE NEW SUB-ADVISORY AGREEMENT?
At a meeting held on June 15, 2005, the Board considered the approval of the New
Sub-Advisory Agreement with respect to the Portfolio. In reaching its decision
to approve the New Sub-Advisory Agreement, the Independent Directors, who were
advised by independent legal counsel, and the Board as a whole considered the
following factors and reached the conclusions described below.
The Board considered NYLIM's explanation of its rationale for proposing that
Winslow replace Eagle as sub-adviser to the Portfolio. The Board noted that the
performance for the Portfolio had been sub-par in recent years under Eagle's
management. The Board also took into consideration information provided by NYLIM
on Winslow's performance in managing the FMI Winslow Growth Fund - whose
investment objective was similar to that of the Portfolio - noting that it
compared favorably to the peer funds. In addition, the Board considered that the
new sub-advisory relationship would provide an opportunity for the Portfolio to
continue to be managed in a manner consistent with its existing investment
style. The Board further considered the experience level and tenure of the
Winslow portfolio management team. The Board concluded that these factors
supported NYLIM's recommendation that Winslow serve as the Portfolio's
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new sub-adviser.
The Board also considered the proposed sub-advisory fee rate payable by NYLIM to
Winslow under the New Sub-Advisory Agreement. The Board noted that the
sub-advisory fee arrangement between NYLIM and Winslow included breakpoints
based on the aggregation of assets of all NYLIM-managed investment companies
sub-advised by Winslow. The Board considered that, due to this aggregation
feature and the asset levels of the other NYLIM-managed investment companies
sub-advised by Winslow, the Winslow sub-advisory fee with respect to the
Portfolio already would be subject to a breakpoint discount. The Board
considered that NYLIM proposed to share equally any benefits it achieves from
the aggregate breakpoints in the Winslow sub-advisory fee schedule with the
Portfolio by waiving a portion of its management fees. The Board also compared
Winslow's proposed sub-advisory fee rate with the sub-advisory fee rates
applicable to other similar funds in the NYLIM Fund Complex. Based on these
considerations, the Board concluded that Winslow's proposed sub-advisory fee
rates under the New Sub-Advisory Agreement were reasonable in comparison to
other sub-advisory fee rates.
The Board received and considered information regarding the nature and extent of
services provided to the Portfolio by Eagle under the Former Sub-Advisory
Agreement and those that would be provided to the Portfolio by Winslow under the
New Sub-Advisory Agreement, noting that the nature and extent of services under
the Former Sub-Advisory Agreement and the New Sub-Advisory Agreement were
substantially similar. The Board also requested and considered information
regarding the nature and extent of services provided by Winslow to another
mutual fund managed by NYLIM under an existing sub-advisory agreement, and
NYLIM's representation that those services would be provided to the Portfolio by
Winslow under the New Sub-Advisory Agreement. The Board concluded that the
Portfolio was likely to benefit from the nature and extent of services to be
provided to the Portfolio by Winslow under the New Sub-Advisory Agreement.
With respect to the quality of services to be provided under the New
Sub-Advisory Agreement, the Board considered, among other things, the background
and experience of Winslow's senior management and the expertise of, and amount
of attention expected to be given to the Portfolio by, investment analysts and
both junior and senior investment personnel of Winslow. The Board noted that
Winslow manages approximately $800 million in total assets under management, of
which approximately $200 million is institutional large cap growth assets. The
Board also reviewed the qualifications, background and responsibilities of the
team members primarily responsible for day-to-day portfolio management services
for the Portfolio. The Board concluded that it was satisfied with the quality of
the investment sub-advisory services anticipated to be provided to the Portfolio
by Winslow, and that there was a reasonable basis on which to conclude that the
quality of investment sub-advisory services to be provided by Winslow under the
New Sub-Advisory Agreement should equal or exceed the quality of investment
sub-advisory services provided by Eagle under the Former Sub-Advisory Agreement.
The Board received and considered information about the Portfolio's historical
performance and noted that the Portfolio's performance, over the one- and
three-year periods, trailed its peer group average. In addition, the Board
received and considered information about the performance of the MainStay Large
Cap Growth Fund (formerly the FMI Winslow Growth Fund). The Board noted that,
for the three- and five-year periods ending March 31, 2005, the
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MainStay Large Cap Growth Fund and its predecessor outperformed both the
Portfolio and the Russell 1000 Growth Index and ranked in the top quartile of
the Lipper variable product large cap growth category. While aware that past
performance is not necessarily indicative of future results, the Board concluded
that the historical performance of the registered investment companies and
institutional accounts advised by Winslow compared favorably in relation to
similar portfolios, and that it was reasonable to believe that Winslow would
provide satisfactory performance in the future.
Because the engagement of Winslow is new, there is no historical profitability
with regard to its arrangements with the Portfolio. The Board considered that
any projection of profitability would be uncertain, given that such a projection
would depend on many assumptions which are, by their nature, speculative.
Accordingly, the Board did not consider Winslow's anticipated profitability in
determining whether to approve the New Sub-Advisory Agreement.
The Board received and considered information about the potential of both NYLIM
and Winslow to experience economies of scale as the Portfolio grows in size. The
Board noted that NYLIM's advisory fee rate and Winslow's proposed sub-advisory
fee rate contain breakpoints and, accordingly, each reflects the potential to
share economies of scale. Even though the asset levels at which breakpoints were
provided in the sub-advisory fee rate did not directly correspond to the asset
levels at which breakpoints were provided in the advisory fee rate, the Board
concluded that the breakpoint structure and levels established the potential for
the sharing of economies of scale among NYLIM, Winslow and the Portfolio as the
Portfolio grows.
The Board considered potential "fall-out" or ancillary benefits anticipated to
be received by Winslow as a result of Winslow's relationship with the Portfolio.
Such benefits are expected to include benefits attributable to the Portfolio's
relationship with Winslow (such as soft-dollar credits, which are credits
obtained with portfolio brokerage commissions that are used to purchase research
products and services from brokers) and benefits potentially derived from an
increase in Winslow's business as a result of Winslow's relationship with the
Portfolio (such as the ability to market to other prospective clients). The
Board concluded that the ancillary benefits that Winslow could be expected to
receive with regard to providing investment advisory and other services to the
Portfolio, such as those noted above, were not unreasonable.
Considering all of these factors, the Board approved the selection of Winslow as
sub-adviser and concluded that the sub-advisory fees to be paid to Winslow were
reasonable.
WHAT ARE THE TERMS OF THE NEW SUB-ADVISORY AGREEMENT?
The material terms of the New Sub-Advisory Agreement are substantially similar
to the Former Sub-Advisory Agreement, except for: (i) sub-advisory fees; (ii)
the effective and termination dates; (iii) the identity of the Portfolio's
sub-adviser; and (iv) certain other nonmaterial changes. The form of the New
Sub-Advisory Agreement is included as Exhibit A to this Proxy Statement and the
description of terms in this section is qualified in its entirety by reference
to Exhibit A.
There will be no change in the duties of NYLIM as a result of approval of the
New Sub-Advisory Agreement. Pursuant to the New Sub-Advisory Agreement, Winslow
will serve as the sub-adviser to the Portfolio and will manage the Portfolio,
select its investments and place all orders for purchases and sales of
securities, subject to the general supervision of the Board and
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NYLIM and in accordance with the Portfolio's investment objectives, policies and
restrictions. More specifically, Winslow will perform the following services:
provide a continuous investment program for the Portfolio, subject to the
supervision of the Board and NYLIM, and in accordance with the Portfolio's
investment objectives, policies, and restrictions;
provide investment research and conduct a continuous program of
evaluation, investment, sales, and reinvestment of the Portfolio's assets
by determining the securities and other investments that shall be
purchased, entered into, sold, closed, or exchanged for the Portfolio,
when these transactions should be executed, and what portion of the assets
of the Portfolio should be held in the various securities and other
investments in which it may invest;
maintain all books and records with respect to the Portfolio's securities
transactions required to be maintained by it under the 1940 Act and the
rules thereunder;
deliver to NYLIM and the Directors such periodic and special reports as
NYLIM or the Directors may reasonably request;
monitor, on a daily basis, the determination by the portfolio accounting
agent for the Portfolio of the valuation of portfolio securities; and
provide the Portfolio's custodian, on each business day, with information
relating to the execution of all portfolio transactions pursuant to
standing instructions.
In consideration for its services, Winslow will be entitled to receive an annual
fee based on the average daily net assets of the Portfolio as follows: 0.40% of
the average daily net asset value of all Winslow-serviced assets in all
investment companies managed by NYLIM, including the Portfolio, up to $250
million; 0.35% of the average daily net asset value of all Winslow-serviced
assets in all investment companies managed by NYLIM, including the Portfolio,
from $250 million to $500 million; 0.30% of the average daily net asset value of
all Winslow-serviced assets in all investment companies managed by NYLIM,
including the Portfolio, from $500 million to $750 million; 0.25% of the average
daily net asset value of all Winslow-serviced assets in all investment companies
managed by NYLIM, including the Portfolio, from $750 million to $1 billion; and
.20% of the average daily net asset value of all Winslow-serviced assets in all
investment companies managed by NYLIM, including the Portfolio, in excess of $1
billion.
Under the Former Sub-Advisory Agreement, Eagle received an annual fee based on
the average daily net assets of the Portfolio of 0.40% on assets up to $200
million and 0.30% on assets above $200 million. Eagle received $604,461 in
sub-advisory fees for the fiscal year ended December 31, 2004. If the New
Sub-Advisory Agreement were in effect during the previous fiscal year ended
December 31, 2004, Winslow's sub-advisory fees would have been identical to
those of Eagle because Winslow did not sub-advise any other NYLIM-managed
investment companies. As a result, a breakpoint in the Winslow sub-advisory fee
schedule would not have been achieved.
Since the end of the last fiscal year, however, Winslow has come to manage more
than $250 million in net assets of NYLIM-managed investment companies. This
means that, due to the breakpoint at $250 million in Winslow's fee schedule,
Winslow currently would receive less in sub-advisory fees than Eagle would have,
all other factors being equal. NYLIM, recognizing that its fee schedule does not
include a corresponding breakpoint (meaning that the Portfolio at current net
asset levels would not benefit from the breakpoint in Winslow's fee, absent a
fee waiver on NYLIM's part), has committed to the Board of Directors of the Fund
to share equally any reduction in the sub-advisory fee to the extent that the
net management fee to NYLIM exceeds 0.10%.
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For example, for the month of June 2005, the Portfolio paid NYLIM a management
fee of 0.50% of the Portfolio's average daily net assets and NYLIM paid Eagle a
sub-advisory fee of 0.40% of the Portfolio's average daily net assets. Due to
the aggregation feature of the New Sub-Advisory Agreement, if Winslow had been
the investment sub-adviser of the Portfolio, the Portfolio would have achieved a
breakpoint in the Winslow sub-advisory fee schedule. As a result, NYLIM would
have paid Winslow a sub-advisory fee of 0.38% of the Portfolio's average daily
net assets compared to 0.40% paid to Eagle. Since the net management fee to
NYLIM would have exceeded 0.10%, NYLIM would have retained an additional 0.01%
in net management fees and would have waived 0.01% of its management fee charged
to the Portfolio.
If approved by shareholders, the New Sub-Advisory Agreement will become
effective on or about December 15, 2005 and, unless sooner terminated, will
continue for an initial term ending in two years. Thereafter, the New
Sub-Advisory Agreement will continue for successive one-year terms, provided
that such continuation is specifically approved at least annually by a vote of a
majority of the Directors, or by the vote of a majority of the outstanding
shares of the Portfolio, and, in either case, by a majority of the Independent
Directors, by vote cast in person at a meeting called for such purpose. The New
Sub-Advisory Agreement will terminate automatically in the event of its
assignment (as defined in the 1940 Act) or the assignment or termination of the
Investment Advisory Agreement, which is discussed below.
The New Sub-Advisory Agreement provides that Winslow will not be liable to
NYLIM, the Fund or any shareholder of the Fund for any act or omission in the
course of, or connected with, its services under the New Sub-Advisory Agreement
or for any losses that may be sustained in the purchase, holding or sale of any
security, except a loss resulting from willful misfeasance, bad faith, or gross
negligence, by Winslow in the performance of its duties under the New
Sub-Advisory Agreement, or reckless disregard of its obligations or duties under
the New Sub-Advisory Agreement.
HOW CAN YOU VOTE YOUR SHARES?
Please choose one of the following options to vote your shares:
- By mail, with the enclosed proxy card;
- By touch-tone telephone, with a toll-free call to the telephone
number that appears on your proxy card;
- Through the Internet, by using the Internet address located on you
proxy card and following the instructions on the site; or
- In person at the Special Meeting.
CURRENT INVESTMENT ADVISORY AGREEMENT
Pursuant to an Investment Advisory Agreement dated May 15, 2001, as amended,
between the Portfolio and NYLIM (the "Investment Advisory Agreement"), NYLIM
serves as investment manager to the Portfolio. NYLIM and its predecessor have
managed the Portfolio since its
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inception. NYLIM is located at 169 Lackawanna Avenue, Parsippany, New Jersey
07054. NYLIM commenced operations in April 2000, and is an
independently-managed, wholly-owned indirect subsidiary of New York Life
Insurance Company, 51 Madison Avenue, New York, New York 10010. As of August
31, 2005, NYLIM and its affiliates managed over $196 billion in assets.
In conformity with the stated policies of the Fund and pursuant to the
Investment Advisory Agreement, NYLIM administers the Portfolio's business
affairs and manages the investment operations of the Portfolio and the
composition of the Portfolio's portfolio, subject to the supervision of the
Board. NYLIM provides offices, conducts clerical, recordkeeping, and bookkeeping
services, and maintains most of the financial and accounting records required
for the Portfolio.
The Investment Advisory Agreement was last approved by shareholders on April 1,
1998 and most recently renewed by the Board at a meeting held on December 2-3,
2004. It will continue in effect from year to year only if such continuance is
approved at least annually by the Board or by vote of a majority of the
outstanding shares of the Portfolio (as defined in the 1940 Act) and, in either
case, by a majority of the Independent Directors, by vote cast in person at a
meeting called for such purpose. The Investment Advisory Agreement may be
terminated as to the Portfolio at any time on 60 days' written notice without
penalty by the Directors, by vote of a majority of the outstanding shares of the
Portfolio, or by NYLIM. The Investment Advisory Agreement also terminates
automatically in the event of an assignment (as defined in the 1940 Act).
Under the Investment Advisory Agreement, NYLIM may make the day-to-day
investment decisions for the Portfolio or delegate any or all of its duties and
responsibilities to one or more sub-advisers, at its own expense. Regardless of
whether it employs a sub-adviser, NYLIM continuously reviews, supervises and
administers the Portfolio's investment program.
The Investment Advisory Agreement provides that NYLIM shall not be liable to the
Fund for any error of judgment by NYLIM or for any loss sustained by the
Portfolio in connection with the matters to which the Investment Advisory
Agreement relates, except a loss resulting from NYLIM's willful misfeasance, bad
faith or gross negligence in the performance of its duties or reckless disregard
of its obligations and duties under the Management Agreement. As consideration
for its services, NYLIM receives an annual fee, based on the Portfolio's average
daily net assets, of 0.50% on assets up to $200 million and 0.40% on all assets
above $200 million. For the fiscal year ended December 31, 2004, the Portfolio
paid investment advisory fees to NYLIM equal to $755,577 (this figure includes
the sub-advisory fee).
INFORMATION ABOUT WINSLOW
NYLIM has proposed that Winslow, 4720 IDS Tower, 80 South Eighth Street,
Minneapolis, Minnesota, serve as the sub-adviser to the Portfolio. Under the
supervision of NYLIM, Winslow is responsible for making the specific decisions
about buying, selling and holding securities; selecting and negotiating with
brokers and brokerage firms; and maintaining accurate records for the Portfolio.
For these services, Winslow is and would be paid a monthly fee by NYLIM, not the
Portfolio.
Winslow has been an investment adviser since 1992, and as of September 30, 2005
managed
8
approximately $700 million in assets. The investment team of Winslow is
jointly and primarily responsible for the day-to-day management of the
Portfolio. Winslow is controlled by Clark J. Winslow. Justin Kelly and Bart
Wear, the other members of the portfolio management team, own substantial
interests in the firm.
Exhibit B to this Proxy Statement sets forth the directors and principal
executive officer(s) of Winslow. It also contains certain information with
respect to the other registered investment companies advised by Winslow that
have investment objectives similar to the Portfolio.
No Directors or officers of the Fund are employees, officers, directors or
shareholders of Winslow.
BROKERAGE COMMISSIONS ON PORTFOLIO TRANSACTIONS
In effecting purchases and sales of portfolio securities for the account of the
Portfolio, Winslow seeks the best execution of the Portfolio's orders. In the
course of achieving best execution, Winslow may place such orders with brokers
and dealers who provide market, statistical and other research information to
it. Winslow is authorized, under certain circumstances, when placing portfolio
transactions for equity securities to pay a brokerage commission (to the extent
applicable) in excess of that which another broker might charge for executing
the same transaction on account of the receipt of market, statistical and other
research information.
NYLIFE Securities Inc., an affiliate of NYLIM, may act as broker for the
Portfolio. NYLIFE Securities is a wholly-owned subsidiary of NYLIFE LLC, which
is a wholly-owned subsidiary of NYLIAC, the indirect parent of NYLIM. NYLIFE
Securities is therefore an "Affiliated Broker" as that term is defined in
Schedule 14A under the Securities Exchange Act of 1934, as amended. There were
no brokerage commissions paid by the Portfolio to the Affiliated Broker or any
other affiliated broker for the most recently completed fiscal year.
BOARD RECOMMENDATION
THE DIRECTORS RECOMMEND THAT SHAREHOLDERS OF THE PORTFOLIO
VOTE "FOR" THE APPROVAL OF THE NEW SUB-ADVISORY AGREEMENT.
VOTING INFORMATION
VOTING OF PROXIES. If you attend the Special Meeting you may vote in person. If
you do not plan to attend the Special Meeting, please cast your vote by
completing, signing, and returning the enclosed proxy card by mail in the
envelope provided. You may also vote your shares through telephone touch-tone
voting or Internet voting. These options require you to input a control number,
which is located on each proxy card. Subsequent to inputting these numbers, you
will be prompted to provide your vote on the proposal. You will have an
opportunity to review your vote and make any necessary changes before submitting
your vote and terminating your telephone call or Internet connection.
Timely and properly completed and submitted proxies will be voted as instructed
by Contract Owners. A Contract Owner who executes and returns a proxy may revoke
the proxy at any time prior to the date the proxy is to be exercised by (i)
delivering to the Fund written notice of the
9
revocation, (ii) delivering to the Fund a proxy with a later date, or (iii)
voting in person at the Special Meeting.
In the event a Contract Owner signs and returns the proxy but does not indicate
his or her vote as to the Proposal, such proxy will be voted FOR the Proposal.
VOTES NECESSARY TO APPROVE THE PROPOSAL. Approval of the Proposal requires an
affirmative vote of a majority of the outstanding shares of the Portfolio. The
1940 Act defines the term "majority of the outstanding shares" to mean the
lesser of: (i) 67% or more of the shares of the Portfolio present at the Special
Meeting if the holders of more than 50% of the outstanding shares of the
Portfolio are present; or (ii) more than 50% of the outstanding shares of the
Portfolio. NYLIAC, as the holder of record of all shares of the Portfolio, is
required to "pass through" to its Contract Owners the right to vote shares of
the Portfolio. The Fund expects that NYLIAC will vote 100% of the shares of the
Portfolio held by its respective separate accounts. NYLIAC will vote shares of
the Portfolio for which no instructions have been received in the same
proportion as they vote shares for which they have received instructions.
Abstentions will have the effect of a negative vote on the Proposal. Unmarked
voting instructions from Contract Owners will be voted in favor of the Proposal.
The Fund may adjourn the Meeting to the extent permitted by law, if necessary to
permit NYLIAC to obtain additional voting instructions from Contract Owners.
All outstanding shares of the Portfolio are owned of record, in the aggregate,
by VUL Separate Account I, LifeStages Flexible Variable Annuity Separate Account
I, LifeStages Flexible Variable Annuity Separate Account II, LifeStages Flexible
Variable Annuity Separate Account III, LifeStages Flexible Variable Annuity
Separate Account IV and CSVUL Separate Account I. As of the Record Date, there
were 11,529,626.546 shares of the Portfolio outstanding. Contract Owners, as of
the Record Date, are entitled to one vote for each full share held and
fractional votes for fractional shares held through their Contract. As of the
Record Date, the chart below reflects the total number of shares outstanding,
the number of shares of beneficial interest and their percentage of the total
outstanding shares of the Portfolio owned by each shareholder.
MAINSTAY VP GROWTH PORTFOLIO
----------------------------
INITIAL CLASS
SHARES %
------------- -------
VUL Separate Account I ............................................ 1,489,030.373 15.4
LifeStages Flexible Variable Annuity Separate Account I ........... 444,166.834 4.6
LifeStages Flexible Variable Annuity Separate Account II .......... 647,192.143 6.7
LifeStages Flexible Variable Annuity Separate Account III ......... 7,071,239.738 73
CSVUL Separate Account I .......................................... 32,956.470 0.3
Total Outstanding ............................................ 9,684,585.558 100
SERVICE CLASS
SHARES %
------------- -------
LifeStages Flexible Variable Annuity Separate Account III ......... 1,596,652.153 86.5
LifeStages Flexible Variable Annuity Separate Account IV .......... 248,388.835 13.5
Total Outstanding ............................................ 1,845,040.988 100
ADJOURNMENTS. The persons named as proxies may propose one or more adjournments
of the Special Meeting in accordance with applicable law, to permit further
solicitation of votes. The persons named as proxies will vote in favor of
adjournment with respect to those proxies which have been voted in favor of the
Proposal and will vote against any such adjournment with respect to those
proxies which have been voted against the Proposal.
PAYMENT OF SOLICITATION EXPENSES. The cost of the Special Meeting, including
costs of solicitation of proxies and voting instructions, will be borne by the
Portfolio and are estimated to be between $35,000 and $50,000. Shareholders of
the Portfolio may incur additional expenses as a result of this proxy
solicitation. Proxies will be solicited via regular mail and also may be
solicited via telephone by personnel of NYLIM, the Fund, their respective
affiliates, or, in
10
NYLIM's discretion, a commercial firm retained for this purpose.
OTHER MATTERS TO COME BEFORE THE SPECIAL MEETING. The Portfolio does not know of
any matters to be presented at the Special Meeting other than that described in
this Proxy Statement. If any other matters come before the Special Meeting,
including any proposal to adjourn the Special Meeting to permit the continued
solicitation of proxies in favor of the Proposal, it is the Portfolio's
intention that proxies not containing specific restrictions to the contrary will
be voted on such matters in accordance with the judgment of the persons named in
the enclosed proxy.
FUTURE SHAREHOLDER PROPOSALS. A Contract Owner may request inclusion in the
Fund's proxy statement for shareholder meetings certain proposals for action
which the Contract Owner intends to introduce at such meeting. Any Contract
Owner proposals must be presented a reasonable time before the proxy materials
for the next meeting are sent to Contract Owners. The submission of a proposal
does not guarantee its inclusion in the proxy statement and is subject to
limitations under the federal securities laws. The Fund is not required to hold
regular meetings of shareholders, and in order to minimize its costs, does not
intend to hold meetings of the shareholders unless so required by applicable
law, regulation, regulatory policy, or unless otherwise deemed advisable by the
Board or the Fund's management. Therefore, it is not practicable to specify a
date by which proposals must be received in order to be incorporated in an
upcoming proxy statement for a meeting of shareholders. Contract Owners wishing
to submit proposals for inclusion in a proxy statement for a subsequent
shareholder meeting should send his or her written proposals to the Secretary of
the Fund, 169 Lackawanna Avenue, Parsippany, New Jersey 07054.
OTHER INFORMATION
DISTRIBUTOR. NYLIFE Distributors, Inc. located at 169 Lackawanna Avenue,
Parsippany, New Jersey 07054, serves as the distributor (the "Distributor") of
the Fund for the Service Class shares of the Portfolio pursuant to a
Distribution and Service Agreement. The Distributor is a wholly-owned subsidiary
of NYLIM. The Distributor is not obligated to sell any specific amount of the
Service Class shares, and receives no compensation from the Fund or the
Portfolio under the Distribution and Service Agreement.
ADMINISTRATOR. Under a Master Administration Agreement dated December 15, 1996,
as amended, between the Fund and NYLIM, NYLIM provides administrative services
and functions comprised of, but not limited to, certain recordkeeping, reporting
and processing services for the Fund. As consideration for its services,
NYLIM receives an annual fee of 0.20% of the Portfolio's average daily net
assets. For the fiscal year ended December 31, 2004, the Portfolio paid
administration fees to NYLIM equal to $302,231.
INDEPENDENT AUDITORS. PricewaterhouseCoopers LLP ("PWC"), 1177 Avenue of the
Americas, New York, New York 10036, has been selected as independent auditors of
the Fund. PWC is responsible for auditing the annual financial statements of the
Portfolio. Representatives of PWC are not expected to be present at the Special
Meeting, but have been given the opportunity to make a statement if they so
desire and will be available should any matter arise requiring their presence.
SHAREHOLDER REPORTS. The Fund will furnish, without charge, to any Contract
Owner, upon
11
request, a printed version of the Portfolio's most recent annual report (and the
most recent semi-annual report succeeding the annual report). Such requests may
be directed to the Fund by writing New York Life Insurance and Annuity
Corporation, attn: Mainstay VP Series Fund, Inc. (MainStay VP Growth Portfolio),
51 Madison Avenue, Room 452, New York, New York 10010, or by calling toll-free
1-800-598-2019. The financial statements included in the Portfolio's most recent
annual report (and the most recent semi-annual report succeeding the annual
report) are incorporated by reference in this Proxy Statement.
BENEFICIAL SHARE OWNERSHIP OF DIRECTORS AND OFFICERS. As of October 7, 2005, the
Directors and officers of the Fund, as a group, beneficially owned less than 1%
of the outstanding shares of each class of the Portfolio.
BENEFICIAL SHARE OWNERSHIP OF SHAREHOLDERS. As of October 7, 2005, the
shareholders identified below were known by the Portfolio to beneficially own 5%
or more of the outstanding interest of a class of the Portfolio:
TITLE OF NAME AND ADDRESS* AMOUNT OF PERCENT OF
CLASS OF BENEFICIAL OWNER BENEFICIAL OWNERSHIP CLASS
------------- ----------------------- -------------------- ----------
Initial Class VUL Separate Account I 1,489,030.373 15.4%
------------- ----------------------- -------------------- ----------
LifeStages Flexible
Variable Annuity
Separate Account II 647,192.143 6.7%
------------- ----------------------- -------------------- ----------
LifeStages Flexible
Variable Annuity
Separate Account III 7,071,239.738 73%
------------- ----------------------- -------------------- ----------
Service Class LifeStages Flexible
Variable Annuity
Separate Account III 1,596,652.153 86.5%
------------- ----------------------- -------------------- ----------
LifeStages Flexible
Variable Annuity
Separate Account IV 248,388.835 13.5%
------------- ----------------------- -------------------- ----------
* The address for each separate account is 169 Lackawanna Avenue, Parsippany,
NJ 07054.
12
EXHIBIT A
FORM OF SUB-ADVISORY AGREEMENT
MAINSTAY VP SERIES FUND, INC.
SUB-ADVISORY AGREEMENT, made as of the [ ] day of [ ], 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 Winslow 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:
1. Appointment. The Manager hereby appoints Winslow 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.
A-1
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.
2. 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:
(a) The Subadviser will take all steps necessary to manage the
Series so that it will qualify as a regulated investment company under
Subchapter M of the Internal Revenue Code.
(b) The Subadviser will conform with the 1940 Act and all rules
and regulations thereunder, all other applicable federal and state laws and
regulations, any applicable procedures adopted by the 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.
(c) On occasions when the Subadviser deems the purchase or sale of
a security to be in the best interest of the Series as well as of other
investment advisory clients of the Subadviser or any of its affiliates, the
Subadviser may, to the extent permitted by applicable laws and regulations, but
shall not be obligated to, aggregate the securities to be so sold or purchased
with those of its other clients where such aggregation is not inconsistent with
the policies set forth in the Registration Statement. In such event, allocation
of the securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Subadviser in a manner that is fair and
equitable in the judgment of the Subadviser in the exercise of its fiduciary
obligations to the Fund and to such other clients, subject to review by the
Manager and the Board of Directors.
(d) In connection with the purchase and sale of securities for the
Series, the Subadviser will arrange for the transmission to the custodian and
portfolio accounting agent for the Series, on a daily basis, such confirmation,
trade tickets, and other documents and
A-2
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.
(e) 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.
(f) 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.
(g) 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.
(h) In rendering the services required under this Agreement, the
Subadviser may, from time to time, employ or associate with itself such person
or persons as it believes necessary to assist it in carrying out its obligations
under this Agreement. The Subadviser may not, however, retain as 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:
A-3
(i) been convicted, in the last ten (10) years, of any
felony or misdemeanor arising out of conduct involving embezzlement, fraudulent
conversion, or misappropriation of funds or securities, involving violations of
Sections 1341, 1342, or 1343 of Title 18, United States Code, or involving the
purchase or sale of any security; or
(ii) been found by any state regulatory authority, within the
last ten (10) years, to have violated or to have acknowledged violation of any
provision of any state insurance law involving fraud, deceit, or knowing
misrepresentation; or
(iii) been found by any federal or state regulatory
authorities, within the last ten (10) years, to have violated or to have
acknowledged violation of any provision of federal or state securities laws
involving fraud, deceit, or knowing misrepresentation.
3. Broker-Dealer Selection. The Subadviser is responsible for decisions
to buy and sell securities and other investments for the Series' portfolio, for
broker-dealer selection, and for negotiation of brokerage commission rates. The
Subadviser's primary consideration in effecting a security transaction will be
to obtain the best execution for the Series, taking into account the factors
specified in the Prospectus and/or Statement of Additional Information for the
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 therefor.
A-4
4. 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.
5. Expenses. During the term of this Agreement, the Subadviser will pay
all expenses incurred by it and its staff and for their activities in connection
with its portfolio management duties under this Agreement. The Manager or the
Fund shall be responsible for all the expenses of the Fund's operations,
including, but not limited to:
(a) the fees and expenses of Directors who are not interested
persons of the Manager or of the Fund;
(b) the fees and expenses of each Series which relate to (A) the
custodial function and the recordkeeping connected therewith, (B) the
maintenance of the required accounting records of the Series not being
maintained by the Manager, (C) the pricing of the Series' Shares, including the
cost of any pricing service or services that may be retained pursuant to the
authorization of the 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;
(c) 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;
(d) the charges and expenses of legal counsel (including an
allocable portion of the cost of maintaining an internal legal and compliance
department) and independent accountants for the Fund;
(e) brokers' commissions and any issue or transfer taxes
chargeable to the Fund in connection with its securities transactions on behalf
of the Series;
(f) all taxes and business fees payable by the Fund or the Series
to federal, state or other governmental agencies;
(g) the fees of any trade association of which the Fund may be a
member;
(h) the cost of share certificates representing Series Shares;
(i) the fees and expenses involved in registering and maintaining
registrations of the 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
A-5
Fund's registration statements and prospectuses for filing under federal and
state securities laws for such purposes;
(j) allocable communications expenses with respect to investor
services and all expenses of shareholders' and Directors' meetings and of
preparing, printing and mailing reports to shareholders in the amount necessary
for distribution to the shareholders;
(k) litigation and indemnification expenses and other
extraordinary expenses not incurred in the ordinary course of the Fund's
business; and
(l) any expenses assumed by the Series pursuant to a Plan of
Distribution adopted in conformity with Rule 12b-1 under the 1940 Act.
6. Compensation. For the services provided, the Manager will pay the
Subadviser a fee, payable monthly, as described on Schedule A.
7. Seed Money. The Manager agrees that the Subadviser shall not be
responsible for providing money for the initial capitalization of the Series.
8. Compliance.
(a) The Subadviser agrees 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.
(b) 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.
(c) 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
A-6
registration as an investment adviser; or commenced proceedings or an
investigation that may result in any of these actions; or (2) upon having a
reasonable basis for believing that the Series has ceased to qualify or might
not qualify as a regulated investment company under Subchapter M of the Internal
Revenue Code.
9. Documents. The Manager has delivered to the Subadviser copies of
each of the following documents and will deliver to it all future amendments and
supplements, if any:
(a) 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");
(b) By-Laws of the Fund;
(c) Certified Resolutions of the Directors of the Fund authorizing
the appointment of the Subadviser and approving the form of this Agreement;
(d) Written Instrument to Establish and Designate Separate Series
of Shares;
(e) 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;
(f) Notification of Registration of the Fund under the 1940 Act on
Form N-8A, as filed with the Commission, and all amendments thereto; and
(g) Prospectus and Statement of Additional Information of the
Series.
10. Books and Records. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Subadviser hereby agrees that all records that it
maintains for the Series are the property of the 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-1 under the 1940 Act and to
preserve the records required by Rule 204-2 under the Advisers Act for the
period specified in the Rule.
11. Cooperation. Each party to this Agreement agrees to cooperate with
each other party and with all appropriate governmental authorities having the
requisite jurisdiction (including, but not limited to, the Commission) in
connection with any investigation or inquiry relating to this Agreement or the
Fund.
12. 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
A-7
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.
13. 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.
14. 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.
15. 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.
16. Indemnification.
(a) The Manager agrees to indemnify and hold harmless the
Subadviser, any affiliated person of the Subadviser, and each person, if any,
who, within the meaning of Section 15 of the 1933 Act controls ("controlling
person") the Subadviser (all of such persons being referred to as "Subadviser
Indemnified Persons") against any and all losses, claims, damages, liabilities,
or litigation (including legal and other expenses) to which a Subadviser
Indemnified Person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, the Internal Revenue Code, under any other statute, at common law
or otherwise, arising out of the Manager's responsibilities to the 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
A-8
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.
(b) Notwithstanding Section 14 of this Agreement, the Subadviser
agrees to indemnify and hold harmless the Manager, any affiliated person of the
Manager, and each person, if any, who, within the meaning of Section 15 of the
1933 Act, controls ("controlling person") the Manager (all of such persons being
referred to as "Manager Indemnified Persons") against any and all losses,
claims, damages, liabilities, or litigation (including legal and other expenses)
to which a Manager Indemnified Person may become subject under the 1933 Act,
1940 Act, the Advisers Act, the Internal Revenue Code, under any other statute,
at common law or otherwise, arising out of the Subadviser's responsibilities as
Subadviser of the Series, which (1) may be based upon any misfeasance,
malfeasance, or nonfeasance by the Subadviser, any of its employees or
representatives, or any affiliate of or any person acting on behalf of the
Subadviser, (2) may be based upon a failure to comply with Section 2,
Paragraph(a) of this Agreement, or (3) may be based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus covering the shares of the 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.
(c) The Manager shall not be liable under Paragraph (a) of this
Section 15 with respect to any claim made against a Subadviser Indemnified
Person unless such Subadviser Indemnified Person shall have notified the Manager
in writing within a reasonable time after the summons, notice, or other first
legal process or notice giving information of the nature of the claim shall have
been served upon such Subadviser Indemnified Person (or after such Subadviser
Indemnified Person shall have received notice of such service on any designated
agent), but failure to notify the Manager of any such claim shall not relieve
the Manager from any liability that it may have to the Subadviser Indemnified
Person against whom such action is brought otherwise than on account of this
Section 15. In case any such action is brought against the Subadviser
Indemnified Person, the Manager will be entitled to participate, at its own
expense, in the defense thereof or, after notice to the Subadviser Indemnified
Person, to assume the defense thereof, with counsel satisfactory to the
Subadviser Indemnified Person. If the Manager assumes the defense of any such
action and the selection of counsel by the Manager to represent both the Manager
and the Subadviser Indemnified Person would result in a conflict of interests
and,
A-9
therefore, would not, in the reasonable judgment of the Subadviser Indemnified
Person, adequately represent the interests of the Subadviser Indemnified Person,
the Manager will, at its own expense, assume the defense with counsel to the
Manager and, also at its own expense, with separate counsel to the Subadviser
Indemnified Person, which counsel shall be satisfactory to the Manager and to
the Subadviser Indemnified Person. The Subadviser Indemnified Person shall bear
the fees and expenses of any additional counsel retained by it, and the Manager
shall not be liable to the Subadviser Indemnified Person under this Agreement
for any legal or other expenses subsequently incurred by the Subadviser
Indemnified Person independently in connection with the defense thereof other
than reasonable costs of investigation. The Manager shall not have the right to
compromise on or settle the litigation without the prior written consent of the
Subadviser Indemnified Person if the compromise or settlement results, or may
result, in a finding of wrongdoing on the part of the Subadviser Indemnified
Person.
(d) The Subadviser shall not be liable under Paragraph (b) of this
Section 15 with respect to any claim made against a Manager Indemnified Person
unless such Manager Indemnified Person shall have notified the Subadviser in
writing within a reasonable time after the summons, notice, or other first legal
process or notice giving information of the nature of the claim shall have been
served upon such Manager Indemnified Person (or after such Manager Indemnified
Person shall have received notice of such service on any designated agent), but
failure to notify the Subadviser of any such claim shall not relieve the
Subadviser from any liability that it may have to the Manager Indemnified Person
against whom such action is brought otherwise than on account of this Section
15. In case any such action is brought against the Manager Indemnified Person,
the Subadviser will be entitled to participate, at its own expense, in the
defense thereof or, after notice to the Manager Indemnified Person, to assume
the defense thereof, with counsel satisfactory to the Manager Indemnified
Person. If the Subadviser assumes the defense of any such action and the
selection of counsel by the Subadviser to represent both the Subadviser and the
Manager Indemnified Person would result in a conflict of interests and,
therefore, would not, in the reasonable judgment of the Manager Indemnified
Person, adequately represent the interests of the Manager Indemnified Person,
the Subadviser will, at its own expense, assume the defense with counsel to the
Subadviser and, also at its own expense, with separate counsel to the Manager
Indemnified Person, which counsel shall be satisfactory to the Subadviser and to
the Manager Indemnified Person. The Manager Indemnified Person shall bear the
fees and expenses of any additional counsel retained by it, and the Subadviser
shall not be liable to the Manager Indemnified Person under this Agreement for
any legal or other expenses subsequently incurred by the Manager Indemnified
Person independently in connection with the defense thereof other than
reasonable costs of investigation. The Subadviser shall not have the right to
compromise on or settle the litigation without the prior written consent of the
Manager Indemnified Person if the compromise or settlement results, or may
result, in a finding of wrongdoing on the part of the Manager Indemnified
Person.
17. 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 1940
A-10
Act) 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 1940 Act) of any such party to this Agreement cast in person at a meeting
called for the purpose of voting on such approval. Manager's recommendation to
the Board of Directors of the Fund regarding continuance of this Agreement,
during the initial three years of this Agreement, will be based on criteria and
conditions set forth in the Fund Transition Agreement executed by the Manager
and the Subadviser as of January 11, 2005. The Subadviser shall not provide any
services for a Series or receive any fees on account of such Series with respect
to which this Agreement is not approved as described in the preceding sentence.
However, any approval of this Agreement by the holders of a majority of the
outstanding shares (as defined in the 1940 Act) 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.
18. 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.
19. Use of Name.
(a) It is understood that the name MainStay or any derivative
thereof or logo associated with that name is the valuable property of the
Manager and/or its affiliates, and that the Subadviser has the right to use such
name (or derivative or logo) only with the approval of the Manager and only so
long as the Manager is Manager to the Fund and/or the Series. Upon
A-11
termination of the Management Agreement between the Fund and the Manager, the
Subadviser shall forthwith cease to use such name (or derivative or logo).
(b) It is understood that the names Winslow, Winslow 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).
20. Amended and Restated Articles of Incorporation. A copy of the
Amended and Restated Articles of Incorporation for the Fund is on file with the
Secretary of The Commonwealth of Massachusetts. The Amended and Restated
Declaration of Trust has been executed on behalf of the Trust by the Trustees of
the Trust in their capacity as Trustees of the Trust and not individually. The
obligations of this Agreement shall be binding upon the assets and property of
the Trust and shall not be binding upon any Trustee, officer, or shareholder of
the Trust individually.
21. Proxies. The Manager has provided the Subadviser a copy of the
Manager's Proxy Voting Policy, setting forth the policy that proxies be voted
for the exclusive benefit, and in the best interests, of the Trust. Absent
contrary instructions received in writing from the Trust, the Subadviser will
vote all proxies solicited by or with respect to the issuers of securities held
by the Series, in accordance with applicable fiduciary obligations. The
Subadviser shall maintain records concerning how it has voted proxies on behalf
of the Trust, and these records shall be available to the Trust upon request.
22. 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, 169
Lackawanna Avenue, Parsippany, New Jersey 07054, Attention: President; or (2) to
the Subadviser at 4720 IDS Tower, 80 South Eighth Street, Minneapolis, Minnesota
55402.
23. Miscellaneous.
(a) This Agreement shall be governed by the laws of the State of
New York, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Advisers Act or rules or orders of the
Commission thereunder. The term "affiliate" or "affiliated person" as used in
this Agreement shall mean "affiliated person" as defined in Section 2(a)(3) of
the 1940 Act.
(b) The captions of this Agreement are included for convenience
only and in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect.
(c) To the extent permitted under Section 15 of this Agreement,
this Agreement may only be assigned by any party with the prior written consent
of the other parties.
A-12
(d) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby, and to this extent, the provisions of
this Agreement shall be deemed to be severable.
(e) Nothing herein shall be construed as constituting the
Subadviser as an agent of the Manager, or constituting the Manager as an agent
of the Subadviser.
A-13
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: _________________________ By: ____________________________
Name: Anna Jerstrom Name: Brian Murdock
Title: Second Vice President Title: President
WINSLOW CAPITAL MANAGEMENT, INC.
Attest: __________________________ By: ____________________________
Name: Jean A. Baillon Name: Clark J. Winslow
Title: Managing Director Title: Chief Executive Officer
A-14
SCHEDULE A
1. Subadviser shall provide services for the following series of the Fund:
- MainStay VP Growth Portfolio
2. Subadviser shall be paid:
0.40% of the average daily net asset value of all Subadviser-serviced
investment company assets managed by the Manager, including series of the
Fund, up to $250 million;
0.35% of the average daily net asset value of all Subadviser-serviced
investment company assets managed by the Manager, including series of the
Fund, from $250 million to $500 million;
0.30% of the average daily net asset value of all Subadviser-serviced
investment company assets managed by the Manager, including series of the
Fund, from $500 million to $750 million;
0.25% of the average daily net asset value of all Subadviser-serviced
investment company assets managed by the Manager, including series of the
Fund, from $750 million to $1 billion; and
0.20% of the average daily net asset value of all Subadviser-serviced
investment company assets managed by the Manager, including series of the
Fund, in excess of $1 billion.
A-15
EXHIBIT B
ADDITIONAL INFORMATION ABOUT WINSLOW
The name and title of the directors and principal executive officer(s) of
Winslow are shown below. The address of the directors and principal executive
officer(s) of Winslow is 4720 IDS Tower, 80 South Eighth Street, Minneapolis,
Minnesota -----.
NAME TITLE
---- -----
Clark J. Winslow Chief Executive Officer
Justin H. Kelly Managing Director
R. Bart Wear Managing Director
Jean A. Baillon Managing Director
NET ASSETS FEE RATE (AS A % OF AVERAGE DAILY
FUND AS OF SEPTEMBER 30, 2005 NET ASSETS)
---- ------------------------ ----------------------------------
MainStay Large-Cap
Growth Fund $294 million 0.40% of the average daily net asset value of all
Winslow-serviced investment company assets
managed by NYLIM, including series of the Fund,
up to $250 million;
0.35% of the average daily net asset value of all
Winslow-serviced investment company assets
managed by NYLIM, including series of the
Fund, from $250 million to $500 million;
0.30% of the average daily net asset value of all
Winslow-serviced investment company assets
managed by NYLIM, including series of the
Fund, from $500 million to $750 million;
0.25% of the average daily net asset value of all
Winslow-serviced investment company assets
managed by NYLIM, including series of the
Fund, from $750 million to $1 billion; and
0.20% of the average daily net asset value of all
Winslow-serviced investment company assets
managed by NYLIM, including series of the
Fund, in excess of $1 billion.
B-1
EVERY SHAREHOLDER'S VOTE IS IMPORTANT
YOUR PROXY VOTE IS IMPORTANT!
AND NOW YOU CAN VOTE YOUR PROXY ON THE
PHONE OR THE INTERNET.
IT SAVES MONEY! TELEPHONE AND INTERNET
VOTING SAVES POSTAGE COSTS. SAVINGS
WHICH CAN HELP MINIMIZE EXPENSES.
IT SAVES TIME! TELEPHONE AND INTERNET
VOTING IS INSTANTANEOUS - 24 HOURS A
DAY.
IT'S EASY! JUST FOLLOW THESE SIMPLE
STEPS:
1. READ YOUR PROXY STATEMENT AND HAVE IT
AT HAND.
2. CALL TOLL-FREE 1-866-241-6192, OR GO
TO WEBSITE:
HTTPS://VOTE.PROXY-DIRECT.COM
3. FOLLOW THE RECORDED OR ON-SCREEN
DIRECTIONS.
4. DO NOT MAIL YOUR PROXY CARD WHEN YOU
VOTE BY PHONE, OR INTERNET.
Please detach at perforation before mailing.
PROXY MAINSTAY VP SERIES FUND, INC. PROXY
FOR THE SPECIAL MEETING OF SHAREHOLDERS OF THE MAINSTAY VP GROWTH PORTFOLIO
TO BE HELD ON DECEMBER 15, 2005
The undersigned contract owner of the Mainstay VP Growth Portfolio (the
"Portfolio"), a series of Mainstay VP Series Fund, Inc. (the "Fund"), hereby
constitutes and appoints Robert A. Anselmi, Jeffrey J. Gaboury and Marguerite E.
H. Morrison, or any one of them, as proxy of the undersigned, with full power of
substitution, to vote all shares of the Portfolio held in his or her name on the
books of the Portfolio and which he or she is entitled to vote at the Special
Meeting of shareholders of the Portfolio, to be held at the offices of New York
Life Investment Management LLC, 169 Lackawanna Avenue, Parsippany, New Jersey
07054 on December 15, 2005, beginning at 11:00 a.m. Eastern time, and at any
adjournments or postponements of the Special Meeting, with all the powers that
the undersigned would possess if personally present, as designated on the
reverse hereof. The undersigned hereby revokes any prior proxy, and ratifies and
confirms all that the proxies, or any one of them, may lawfully do. The
undersigned acknowledges receipt of the Notice of the Special Meeting of
shareholders of the Portfolio and the Proxy Statement dated October 14, 2005.
The undersigned hereby instructs the said proxies to vote in accordance with the
instructions provided below with respect to the Proposal. The undersigned
understands that if he or she does not provide an instruction, that the proxies
will vote his or her shares in favor of the Proposal. The proxies will also vote
on any other matter that may arise at the Special Meeting according to their
best judgment.
VOTE VIA THE TELEPHONE: 1-866-241-6192
VOTE VIA THE INTERNET: HTTPS://VOTE.PROXY-DIRECT.COM
999 9999 9999 999
NOTE: Please sign exactly as your name appears on
the account. When shares are held by joint
tenants, both should sign. When signing as
attorney, executor, administrator, trustee or
guardian, please provide full title as such. If a
corporation, please sign in full corporate name by
president or other authorized officer and if a
partnership, please sign in full partnership name
by authorized person.
----------------------------------------------------
Signature
----------------------------------------------------
Signature (if held jointly)
----------------------------------------------------
Date NYL_15803
EVERY SHAREHOLDER'S VOTE IS IMPORTANT
PLEASE SIGN, DATE AND RETURN YOUR
PROXY TODAY
Please detach at perforation before mailing.
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS OF THE FUND, WHICH UNANIMOUSLY
RECOMMENDS THAT YOU VOTE "FOR" THE PROPOSAL THIS PROXY, WHEN PROPERLY EXECUTED,
WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE CONTRACT OWNER. IF NO
SPECIFICATION IS MADE, THIS PROXY WILL BE VOTED IN FAVOR OF THE PROPOSAL.
Unless a contrary direction is indicated, the shares represented by this proxy
will be voted FOR approval of the Proposal; if specific instructions are
indicated, this proxy will be voted in accordance with such instructions.
PLEASE MARK VOTES AS IN THIS EXAMPLE: [X]
FOR AGAINST ABSTAIN
1. To approve a new Sub-Advisory Agreement between New York [ ] [ ] [ ]
Life Investment Management LLC and Winslow Capital Management, Inc.
("Winslow") to appoint Winslow as the sub-adviser to the Portfolio.
Your proxy is important whether or not you plan to attend the Special Meeting in
person. You may revoke this proxy at any time and the giving of it will not
affect your right to attend the Special Meeting and vote in person.
NYL_15803