[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
- - 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
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.
(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.
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,
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
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.
SCHEDULE I
COVERED OFFICERS
Gary E. Wendlandt, Chief Executive Officer
Patrick J. Farrell, Chief Financial Officer
SCHEDULE II
COMPLIANCE OFFICER
Alison Micucci
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.
/s/ Gary E. Wendlandt
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(Signature)
Name: Gary E. Wendlandt
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Title/Department: Chairman and Chief
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Executive Officer, MainStay VP
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Series Fund, Inc.
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Date: March 11, 2005
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/s/ Patrick J. Farrell
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(Signature)
Name: Patrick J. Farrell
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Title/Department: Treasurer and Chief
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Financial and Accounting Officer,
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MainStay VP Series Fund, Inc.
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Date: March 11, 2005
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Received By (Name/Title): Patricia DeFilippis, Assistant Secretary
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Signature: /s/ Patricia DeFilippis
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Date: March 11, 2005
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