[EX-99.CERT]
Exhibit (a)(1)
CODE OF ETHICS FOR PRINCIPAL EXECUTIVE AND
SENIOR FINANCIAL OFFICERS
MAINSTAY VP SERIES FUND, INC.
Approved by the Board of Directors
of MainStay VP Series Fund, Inc.
as of November 11, 2003
Pursuant to the Sarbanes-Oxley Act of 2002
I. INTRODUCTION AND APPLICATION
MainStay VP Series Fund, Inc. ("Company") recognizes the importance of high
ethical standards in the conduct of its business and requires this Code of
Ethics ("Code") be observed by its principal executive officers (each, a
"Covered Officer") (defined below). In accordance with the Sarbanes-Oxley Act of
2002 (the "Act") and the rules promulgated thereunder by the U.S. Securities and
Exchange Commission ("SEC") the Company is required to file reports pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended ("1934
Act"), and must disclose whether it has adopted a code of ethics applicable to
the principal executive officers. The Company's Board of Directors ("Board"),
including a majority of its Independent Directors (defined below), has approved
this Code as compliant with the requirements of the Act and related SEC rules.
All recipients of the Code are directed to read it carefully, retain it for
future reference, and abide by the rules and policies set forth herein. Any
questions concerning the applicability or interpretation of such rules and
policies, and compliance therewith, should be directed to the relevant
Compliance Officer (defined below).
II. PURPOSE
This Code has been adopted by the Board in accordance with the Act and the rules
promulgated by the SEC in order to deter wrongdoing and promote:
- honest and ethical conduct, including the ethical handling of
actual or apparent conflicts of interest between personal and
professional relationships;
- full, fair, accurate, timely and understandable disclosure in
reports and documents filed by the Company with the SEC or
made in other public communications by the Company;
- compliance with applicable governmental laws, rules and
regulations;
- prompt internal reporting to an appropriate person or persons
of violations of the Code to an appropriate person or persons
identified in the Code; and
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- accountability for adherence to the Code.
III. DEFINITIONS
(A) "Covered Officer" means the principal executive officer and
senior financial officers, including the principal financial officer, controller
or principal accounting officer, or persons performing similar functions. The
Covered Officers of the Company shall be identified in Schedule I, as amended
from time to time.
(B) "Compliance Officer" means the person appointed by the
Company's Board of Directors to administer the Code. The Compliance Officer of
the Company shall be identified in Schedule II, as amended from time to time.
(C) "Director" means a director of the Company, as applicable.
(D) "Executive Officer" shall have the same meaning as set forth
in Rule 3b-7 of the 1934 Act. Subject to any changes in the Rule, an Executive
Officer means the president, any vice president, any officer who performs a
policy making function, or any other person who performs similar policy making
functions for the Company.
(E) "Independent Director" means a director of the Company who is
not an "interested person" of the Company within the meaning of Section 2(a)(19)
of the Investment Company Act of 1940, as amended ("Investment Company Act").
(F) "Implicit Waiver" means the Compliance Officer failed to take
action within a reasonable period of time regarding a material departure from a
provision of the Code that has been made known to an Executive Officer.
(G) "Restricted List" means that listing of securities maintained
by the Compliance Officer in which trading by certain individuals subject to the
Company's 17j-1 code of ethics is generally prohibited.
(H) "Waiver" means the approval by the Compliance Officer of a
material departure from a provision of the Code.
IV. HONEST AND ETHICAL CONDUCT
(A) Overview. A "conflict of interest" occurs when a Covered
Officer's personal interest interferes with the interests of, or his or her
service to, the Company. For example, a conflict of interest would arise if a
Covered Officer, or a member of his or her family, receives improper personal
benefits as a result of his or her position with the Company.
Certain conflicts of interest arise out of the relationships between Covered
Officers and the Company and already are subject to conflict of interest
provisions in the Investment Company Act and the Investment Advisers Act of
1940, as amended (the "Advisers Act"). For example, Covered Officers may not
individually engage in certain transactions (such as the purchase or sale of
securities or other property) with the Company because of their status as
"affiliated persons" of the Company. The Company's and certain of its service
providers' compliance policies, programs and procedures are designed to prevent,
or
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identify and correct, violations of these provisions. This Code does not, and is
not intended to, restate or replace these programs and procedures, and such
conflicts fall outside of the parameters of this Code.
Although typically not presenting an opportunity for improper personal benefit,
conflicts may arise or result from the contractual relationship between the
Company and New York Life Investment Management LLC (the "Adviser"), which also
serves as the Company's administrator ("Administrator"). The Covered Officers
may be officers or employees of each of the Adviser and Administrator. As a
result, this Code recognizes that the Covered Officers will, in the normal
course of their duties (whether formally for the Company, the Adviser or the
Administrator), be involved in establishing policies and implementing decisions
that will have different effects on the Adviser, Administrator and the Company.
The participation of the Covered Officers in such activities is inherent in the
contractual relationships between the Company and the Adviser and Administrator
and is consistent with the performance by the Covered Officers of their duties
as officers of the Company. Thus, if performed in conformity with the provisions
of the Investment Company Act and the Advisers Act, such activities normally
will be deemed to have been handled ethically. In addition, it is recognized by
the Board that the Covered Officers may also be officers or employees of one or
more other investment companies covered by this or other codes.
(B) General Policy. Each Covered Officer shall adhere to high
standards of honest and ethical conduct. Each Covered Officer has a duty to
exercise his or her authority and responsibility for the benefit of the Company
and its shareholders, to place the interests of the shareholders first, and to
refrain from having outside interests that conflict with the interests of the
Company and its shareholders. Each such person must avoid any circumstances that
might adversely affect, or appear to affect, his or her duty of loyalty to the
Company and its shareholders in discharging his or her responsibilities,
including the protection of confidential information and corporate integrity.
(C) Conflicts of Interest. Other conflicts of interest are covered
by the Code, even if such conflicts of interest are not subject to provisions of
the Investment Company Act. The following list provides examples of conflicts of
interest under the Code, but Covered Officers should keep in mind that these
examples are not exhaustive. The overarching principle is that the personal
interest of a Covered Officer should not be placed improperly before the
interest of the Company.
(1) Prohibited Conflicts of Interest. Each Covered
Officer must:
- - not use his or her personal influence or personal relationships improperly
to influence decisions or financial reporting by the Company whereby the
Covered Officer would benefit personally to the detriment of the Company;
- - not cause the Company to take action, or fail to take action, for the
individual personal benefit of the Covered Officer rather than benefit the
Company;
- - not use material non-public knowledge of portfolio transactions made or
contemplated for the Company to trade personally or cause others to trade
personally in contemplation of the market effect of such transactions; or
- - report at least annually the information elicited in the Company's
Director's and Officer's Questionnaire relating to potential conflicts of
interest.
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(2) Duty to Disclose Conflicts. Each Covered Officer has
the duty to disclose to the Compliance Officer any interest that he or she may
have in any firm, corporation or business entity that is not affiliated or
participating in any joint venture or partnership with the Company or its
affiliates and that does business with the Company or that otherwise presents a
possible conflict of interest. Disclosure must be timely so that the Company may
take action concerning any possible conflict as it deems appropriate. It is
recognized, however, that the Company or its affiliates may have business
relationships with many organizations and that a relatively small interest in
publicly traded securities of an organization does not necessarily give rise to
a prohibited conflict of interest. Therefore, the following procedures have been
adopted.
(3) Conflicts of Interest that may be Waived. There are
some conflict of interest situations for which a Covered Officer may seek a
Waiver from a provision(s) of the Code. Waivers must be sought in accordance
with Section VII of the Code. Examples of these include:
- - Board Memberships. Except as described below, it is considered generally
incompatible with the duties of a Covered Officer to assume the position of
director of a corporation not affiliated with the Company. A report should
be made by a Covered Officer to the Compliance Officer of any invitation to
serve as a director of a corporation that is not an affiliate and the
person must receive the approval of the Compliance Officer prior to
accepting any such directorship. In the event that approval is given, the
Compliance Officer shall immediately determine whether the corporation in
question is to be placed on the Company's Restricted List.
- "Other" Business Interests. Except as described
below, it is considered generally incompatible with
the duties of a Covered Officer to act as an officer,
general partner, consultant, agent, representative or
employee of any business other than an affiliate. A
report should be made of any invitation to serve as
an officer, general partner, consultant, agent,
representative or employee of any business that is
not an affiliate for the approval of the Compliance
Officer prior to accepting any such position. In the
event that approval is given, the Compliance Officer
shall immediately determine whether the business in
question is to be placed on the Company's Restricted
List.
- - Gifts, Entertainment, Favors or Loans. Covered Officers are subject to the
NYLIM Gift and Entertainment Policy and should refer to that Policy for
guidance with respect to the limits on giving and receiving
gifts/entertainment to and from third parties that do business with the
Company.
- Permissible Outside Activities. Covered Officers who,
in the regular course of their duties relating to the
Company's private equity/venture capital advisory and
investment activities, are asked to serve as the
director, officer, general partner, consultant,
agent, representative or employee of a privately-held
business may do so with the prior written approval of
the Compliance Officer.
- Doing Business with the Company. Except as approved
by the Compliance Officer, Covered Officers may not
have a monetary interest, as principal, co-principal,
agent or beneficiary, directly or indirectly, or
through any substantial interest in any other
corporation or business unit, in any transaction
involving the Company, subject to such exceptions as
are specifically permitted under law.
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V. FULL, FAIR, ACCURATE, TIMELY AND UNDERSTANDABLE DISCLOSURE AND
COMPLIANCE
Covered Officers shall:
- be familiar with the disclosure requirements generally
applicable to the Company;
- not knowingly misrepresent, or cause others to misrepresent,
facts about the Company to others, whether within or outside
the Company, including the Company's directors and auditors,
governmental regulators and self-regulatory organizations;
- to the extent appropriate within his or her area of
responsibility, consult with other officers and employees of
the Company, the Adviser and other Company service providers
with the goal of promoting full, fair, accurate, timely and
understandable disclosure in the reports and documents the
Company files with, or submits to, the SEC and in other public
communications made by the Company; and
- promote compliance with the standards and restrictions imposed
by applicable laws, rules and regulations.
VI. INTERNAL REPORTING BY COVERED PERSONS
(A) Certifications and Accountability. Each Covered Officer shall:
(1) upon adoption of the Code (or thereafter as applicable
upon becoming a Covered Officer), affirm in writing on
Schedule A hereto that the Covered Officer has received,
read, and understands the Code;
(2) annually thereafter affirm on Schedule A hereto that the
Covered Officer has complied with the requirements of
the Code; and
(3) not retaliate against any other Covered Officer or
employee of the Company or their affiliated persons for
reports of potential violations that are made in good
faith.
(B) Reporting. A Covered Officer shall promptly report any
knowledge of a material violation of this Code to the Compliance Officer.
Failure to do so is itself a violation of the Code.
VII. WAIVERS OF PROVISIONS OF THE CODE
(A) Application of the Code. The Compliance Officer is responsible
for applying this Code to specific situations in which questions are presented
under it and has the authority to interpret this Code in any particular
situation. The Compliance Officer is authorized to consult, as appropriate, with
counsel to the Company/counsel to the Independent Directors. However, any
approvals or Waivers sought by and/or granted to a Covered Officer will be
reported to the Board in accordance with Section VIII, below.
(B) Waivers. The Compliance Officer may grant Waivers to the Code
in circumstances that present special hardship. Waivers shall be structured to
be as narrow as is reasonably practicable with appropriate safeguards designed
to prevent abuse of the Waiver. To request a Waiver from the Code, the Covered
Officer shall submit to the Compliance Officer a written request describing the
transaction,
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activity or relationship for which a Waiver is sought. The request shall briefly
explain the reason for engaging in the transaction, activity or relationship.
Notwithstanding the foregoing, no exception will be granted where such exception
would result in a violation of SEC rules or other applicable laws.
(C) Documentation. The Compliance Officer shall document all
Waivers (including Implicit Waivers). If a Waiver is granted, the Compliance
Officer shall prepare a brief description of the nature of the Waiver, the name
of the Covered Officer and the date of the Waiver so that this information may
be disclosed in the next Form N-CSR to be filed on behalf of the Company or
posted on the Company's internet website within five business days following the
date of the Waiver. All Waivers must be reported to the Board at each quarterly
meeting as set forth in Section VIII below.
VIII. BOARD REPORTING
The Compliance Officer shall report any material violations of the Code to the
Board for its consideration on a quarterly basis. At a minimum, the report
shall:
- describe the violation under the Code and any sanctions imposed;
- identify and describe any Waivers sought or granted under the Code; and
- identify any recommended changes to the Code.
IX. AMENDMENTS
The Covered Officers and the Compliance Officer may recommend amendments to the
Code for the consideration and approval of the Board. In connection with any
amendment to the Code, the Compliance Officer shall prepare a brief description
of the amendment so that the necessary disclosure may be made with the next Form
N-CSR to be filed on behalf of the Company, or posted on the Company's internet
website within five business days following the date of the amendment.
X. SANCTIONS
Compliance by Covered Officers with the provisions of the Code is required.
Covered Officers should be aware that in response to any violation, the Company
will take whatever action is deemed necessary under the circumstances,
including, but not limited to, the imposition of appropriate sanctions. These
sanctions may include, among others, the reversal of trades, reallocation of
trades to client accounts, fines, disgorgement of profits, suspension or
termination.
XI. RECORD-KEEPING
The Compliance Officer shall maintain all records, including any internal
memoranda, relating to compliance with the Code or Waivers of a provision(s) of
the Code, for a period of 7 years from the end of the fiscal year in which such
document was created, 2 years in an accessible place.
XII. OTHER POLICIES AND PROCEDURES
This Code shall be the sole code of ethics adopted by the Company for purposes
of Section 406 of the Act and the rules and forms applicable to registered
investment companies thereunder. Insofar as other
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policies or procedures of the Company, the Adviser, and NYLIFE Distributors LLC
(the "Distributor"), or other service providers govern or purport to govern the
behavior or activities of the Covered Officers who are subject to this Code,
they are superseded by this Code to the extent that they overlap or conflict
with the provisions of this Code. The Company's, the Adviser's and the
Distributor's codes of ethics under Rule 17j-1 under the Investment Company Act
are separate requirements applying to the Covered Officers and others, and are
not part of this Code.
XIII. CONFIDENTIALITY
All reports and records prepared or maintained pursuant to this Code will be
considered confidential and shall be maintained and protected accordingly.
Except as otherwise required by law or this Code, such matters shall not be
disclosed to anyone other than the Board, the Adviser and the Compliance
Officer, and their respective counsels.
XIV. INTERNAL USE
The Code is intended solely for the internal use by the Company and does not
constitute an admission, by or on behalf of the Company, as to any fact,
circumstance, or legal conclusion.
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SCHEDULE I
COVERED OFFICERS
Gary E. Wendlandt, Chief Executive Officer
Patrick J. Farrell, Chief Financial Officer
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SCHEDULE II
COMPLIANCE OFFICER
Alison Micucci
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EXHIBIT A
MAINSTAY VP SERIES FUND, INC. CODE OF ETHICS FOR
PRINCIPAL EXECUTIVE AND SENIOR FINANCIAL OFFICERS
INITIAL AND ANNUAL CERTIFICATION OF
COMPLIANCE WITH THE
MAINSTAY VP SERIES FUND, INC. CODE OF ETHICS FOR
PRINCIPAL EXECUTIVE AND SENIOR FINANCIAL OFFICERS
[ ] I hereby certify that I have received the MainStay VP Code of Ethics
for Principal Executive and Senior Financial Officers adopted pursuant to the
Sarbanes-Oxley Act of 2002 (the "Code") and that I have read and understood the
Code. I further certify that I am subject to the Code and will comply with each
of the Code's provisions to which I am subject.
[ ] I hereby certify that I have received the MainStay VP Code of Ethics
for Principal Executive and Senior Financial Officers adopted pursuant to the
Sarbanes-Oxley Act of 2002 (the "Code") and that I have read and understood the
Code. I further certify that I have complied with and will continue to comply
with each of the provisions of the Code to which I am subject.
_____________________________________
(Signature)
Name:________________________________
Title/Department:____________________
Date:________________________________
Received By (Name/Title):__________________
Signature:_________________________________
Date:______________________________________
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