EXHIBIT (M)(2)
12B-1 PLAN SERVICES AGREEMENT
FOR THE
SERVICE CLASS SHARES OF MAINSTAY VP SERIES FUND, INC.
THIS AGREEMENT, made and entered into as of the 22nd day of December, 2005,
between NYLIFE Distributors LLC (the "Distributor") and New York Life Insurance
and Annuity Corporation (the "Company").
RECITALS
1. The Distributor is the distributor for the Service Class shares of the
Portfolios (the "Portfolios") of the MainStay VP Series Fund, Inc.
(the "Fund").
2. The Company is a life insurance company that uses Service Class shares
of one or more Portfolios as investment vehicles under certain
variable annuity and/or variable life insurance contracts ("Variable
Contracts") issued by the Company. The Portfolios may be among several
investment options offered under the Variable Contracts.
3. The Company and the Fund have entered into a Fund Participation
Agreement, dated October 7, 2004, as may be amended from time to time,
which amended the Stock Sale Agreement, dated June 4, 1993, (the
"Stock Sale Agreement"), pursuant to which the Company, on behalf of
certain of its separate accounts (the "Separate Accounts"), purchases
Service Class shares of certain Portfolios.
4. Pursuant to Rule 12b-1 under the Investment Company Act of 1940 (the
"1940 Act"), the Fund has adopted a Distribution and Service Plan (the
"12b-1 Plan") with respect to the Service Class shares of the
Portfolios pursuant to which each Portfolio pays the Distributor, for
services rendered under the Plan, a distribution or service fee at the
annualized rate of 0.25% of the average daily net assets of the
Portfolio's Service Class shares ("12b-1 Fee").
5. The 12b-1 Plan authorizes the Distributor to retain the 12b-1 Fee or
to use the 12b-1 Fee to compensate financial institutions and
organizations, such as the Company, for servicing shareholder accounts
and for services in connection with any activities or expenses
primarily intended to result in the sale of the Service Class shares
of the Portfolios.
6. The Distributor wishes to retain the Company to furnish certain
services pursuant to the 12b-1 Plan and the Company is willing to
furnish such services or cause its affiliates to provide the same.
Accordingly, the following represents the collective intention and understanding
of the Distributor and the Company under this Agreement.
AGREEMENT
1. Services Provided
The Company agrees to provide, or cause its affiliates to provide, the
following 12b-1 Plan services in connection with the Service Class
shares attributable to the Variable Contracts ("Services"): training
and educating agents of the Company about the Fund; telephone and
other communication; the printing of Portfolio Prospectuses,
Statements of Additional Information, and reports for other than
existing shareholders; the preparation, printing, and distribution of
sales literature and advertising materials that mention the
Portfolios; teleservicing support in connection with the Portfolios;
delivery and responding to inquiries respecting Portfolio Prospectuses
and/or Statements of Additional Information, reports, notices, proxies
and proxy statements and other information respecting the Portfolios
(but not including services paid for by the Fund such as printing and
mailing); facilitation of the tabulation of Variable Contract owners'
votes in the event of a meeting of Fund shareholders; maintenance of
Variable Contract records reflecting Service Class shares purchased
and redeemed and Share balances, and conveyance of that information to
the Fund, its transfer agent, or the Distributor as may be reasonably
requested; provision of support services including providing
information about the Fund and its Portfolios and answering questions
concerning the Fund and its Portfolios, including questions respecting
Variable Contract owners' interests in one or more Portfolios;
provision and administration of Variable Contract features for the
benefit of Variable Contract owners participating in the Fund
including fund transfers, dollar cost averaging, asset allocation,
portfolio rebalancing, earnings sweep, and pre-authorized deposits and
withdrawals; and provision of other services as may be agreed upon
from time to time.
2. Payment
In consideration of the Services, the Distributor agrees to pay to the
Company or a person designated by the Company a service fee at the
rate of 0.25% on an annualized basis of the average daily net assets
of the Service Class shares of the Portfolios held in Separate
Accounts. The payment under this paragraph shall be calculated and
accrued daily by the Distributor and will be paid monthly, with each
monthly payment to be made within thirty (30) days thereafter.
The Company may use a portion of the payments it receives hereunder to
pay commissions to broker-dealers. In connection therewith, the
Company represents to Distributor that it will serve in the capacity
of "paymaster" as defined in Sentry Insurance a Mutual Company, 1987
SEC No-Act. LEXIS
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2750 (pub. avail. Sept. 6, 1987) and any subsequent applicable
No-Action Letters.
Unless otherwise agreed, payments of any amounts owed under this
Agreement shall be made by check and mailed to the following address
of the Company:
New York Life Insurance Company
Xxx Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx, Xx.
3. Effective Date and Term of Agreement
This Agreement shall not take effect until it has been approved by
votes of a majority of both (a) the Fund's Board of Directors and (b)
those Directors of the Fund who are not "interested persons" of the
Fund (as defined in the 0000 Xxx) and who have no direct or indirect
financial interest in the operation of this Plan or any agreements
related to it (the "Independent Directors"), cast in person at a
meeting (or meetings) called for the purpose of voting on this
Agreement; and it shall continue in effect for a period of more than
one year from its effective date only so long as such continuance is
specifically approved at least annually in the manner provided for
approval of this Agreement herein.
4. Reports
The Company will furnish to the Distributor such information as the
Distributor may reasonably request, and will otherwise cooperate with
the Distributor in the preparation of reports to the Board of
Directors concerning this Agreement, as well as any other reports or
filings that may be required by law.
5. Termination
This Agreement may be terminated as to a Portfolio at any time,
without payment of any penalty, by vote of a majority of the
Independent Directors or by a vote of a majority of the outstanding
voting securities of Service Class shares on not less than 30 days'
prior written notice to both parties to the Agreement.
This Agreement may be terminated by either party, without payment of
any penalty, upon 30 days' prior written notice to the other party.
This Agreement will automatically terminate with respect to a
Portfolio in the event of its assignment (as such term is defined in
the 0000 Xxx) with respect to such Portfolio.
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In addition, either party may terminate this Agreement immediately if
at any time it is determined by any federal or state regulatory
authority that compensation to be paid under this Agreement is no
longer permitted by, or becomes inconsistent with, any federal or
state law.
6. Other Agreements
Nothing in this Agreement shall amend, modify or supersede any
contractual terms, obligations or covenants among or between any of
the Company, the Distributor, or the Fund previously or currently in
effect, including those contractual terms, obligations or covenants
contained in the Stock Sale Agreement.
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IN WITNESS HEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers signing below.
NYLIFE DISTRIBUTORS LLC
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: /s/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
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