Exhibit 8(e)
FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the ___ day of ___________, 1999,
by and among _________________________ ("Insurer"), a life insurance company
organized under the laws of the State of ____________________,
__________________ a _____________ corporation ("Contract Distributor"), LAZARD
ASSET MANAGEMENT ("XXX"), a division of Lazard Freres & Co. LLC, a New York
limited liability company ("LF & Co."), and LAZARD RETIREMENT SERIES, INC.
("Fund"), a Maryland corporation (collectively, the "Parties").
ARTICLE I.
DEFINITIONS
The following terms used in this Agreement shall have the meanings set
out below:
1.1. "Act" shall mean the Investment Company Act of 1940, as amended.
1.2. "Board" shall mean the Fund's Board of Directors having the responsibility
for management and control of Fund.
1.3. "Business Day" shall mean any day for which Fund calculates net asset value
per share as described in a Portfolio Prospectus.
1.4. "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.5. "Commission" shall mean the Securities and Exchange Commission.
1.6. "Contract" shall mean a variable annuity or variable life insurance
contract that uses a Portfolio or Fund as an underlying investment medium
and that is named on Schedule 1 hereto, as the Parties may amend in writing
from time to time by mutual agreement ("Schedule 1").
1.7. "Contract Prospectus" shall mean the prospectus and, if applicable,
statement of additional information, as currently in effect with the
Commission, with respect to the Contracts, including any supplements or
amendments thereto. All references to "Contract Prospectuses" shall be
deemed to also include all offering documents and other materials relating
to any Contract that is not registered under the Securities Act of 1933, as
amended ("1933 Act").
1.8. "Contractholder" shall mean any person that is a party to a Contract with a
Participating Company. Individuals who participate under a group Contract
are "Participants."
1.9. "Disinterested Board Members" shall mean those members of the Board that
are not deemed to be "interested persons" of Fund, as defined by the Act.
1.10. "General Account" shall mean the general account of Insurer.
1.11."Participating Company" shall mean any insurance company, including
Insurer, that offers variable annuity and/or variable life insurance
contracts to the public and that has entered into an agreement with Fund
for the purpose of making Fund shares available to serve as the underlying
investment medium for Contracts.
1.12. "Portfolio" shall mean each series of Fund named on Schedule 1.
1.13."Portfolio Prospectus" shall mean the prospectus and statement of
additional information, as currently in effect with the Commission, with
respect to the Portfolios, including any supplements or amendments thereto.
1.14."Separate Account" shall mean a separate account duly established by
Insurer in accordance with the laws of the State of ___________ and named
on Schedule 1.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1. Insurer represents and warrants that:
(a) it is an insurance company duly organized and in good standing under
____________ law;
(b) it has legally and validly established and shall maintain each Separate
Account pursuant to the insurance laws and regulations of the State of
___________;
(c) it has registered and shall maintain the registration of each Separate
Account as a unit investment trust under the Act, to the extent required by
the Act, to serve as a segregated investment account for the Contracts;
(d) each Separate Account is and at all times shall be eligible to invest in
shares of Fund without such investment disqualifying Fund as an investment
medium for insurance company separate accounts supporting variable annuity
contracts and/or variable life insurance contracts;
(e) each Separate Account is and at all times shall be a "segregated asset
account," and interests in each Separate Account that are offered to the
public shall be issued exclusively through the purchase of a Contract that
is and at all times shall be a "variable contract" within the meaning of
such terms under Section 817 of the Code and the regulations thereunder.
Insurer agrees to notify Fund and XXX immediately upon having a reasonable
basis for believing that such requirements have ceased to be met or that
they might not be met in the future;
(f) the Contracts are and at all times shall be treated as life insurance,
endowment or annuity contracts under applicable provisions of the Code, and
it shall notify Fund immediately upon having a reasonable basis for
believing that the Contracts have ceased to be so treated or that they
might not be so treated in the future; and
(g) all of its employees and agents who deal with the money and/or securities
of Fund are and at all times shall be covered by a blanket fidelity bond or
similar coverage in an amount not less than the coverage required to be
maintained by Fund. The aforesaid bond shall include coverage for larceny
and embezzlement and shall be issued by a reputable bonding company.
2.2. Insurer and Distributor represent and warrant that (a) units of interest in
each Separate Account available through the purchase of Contracts are registered
under the 1933 Act, to the extent required thereby; (b) the Contracts shall be
issued and sold in compliance in all material respects with all applicable
federal and state laws; and (c) the sale of the Contracts shall comply in all
material respects with state insurance law requirements. Insurer agrees to
inform Fund promptly of any investment restrictions imposed by state insurance
law and applicable to Fund.
2.3 Distributor represents and warrants that it is and at all times shall be:
(a) registered with the Commission as a broker-dealer, (b) a member in good
standing of the National Association of Securities Dealers, Inc. ("NASD"); and
(c) a ___________ corporation duly organized, validly existing, and in good
standing under the laws of the State of _________________, with full power,
authority, and legal right to execute, deliver, and perform its duties and
comply with its obligations under this Agreement.
A. Fund represents and warrants that:
(a) it is and shall remain registered with the Commission as an open-end,
management investment company under the Act to the extent required thereby;
(b) its shares are registered under the 1933 Act to the extent required
thereby;
(c) it possesses, and shall maintain, all legal and regulatory licenses,
approvals, consents and/or exemptions required for it to operate and offer
its shares as an underlying investment medium for the Contracts;
(d) each Portfolio is qualified as a regulated investment company under
Subchapter M of the Code, it shall make every effort to maintain such
qualification, and it shall notify Insurer immediately upon having a
reasonable basis for believing that any Portfolio invested in by the
Separate Account has ceased to so qualify or that it might not so qualify
in the future;
(e) each Portfolio's assets shall be managed and invested in a manner that
complies with the requirements of Section 817(h) of the Code and the
regulations thereunder, to the extent applicable; and
(f) all of its directors, officers, employees, investment advisers, and other
individuals/entities who deal with the money and/or securities of Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of Fund in an amount not less than that
required by Rule 17g-1 under the Act. The aforesaid bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
2.5 XXX represents and warrants that LF & Co., the principal underwriter of each
Portfolio's shares, that it is and at all times shall be: (a) registered with
the Commission as a broker-dealer, (b) a member in good standing of the NASD;
and (c) a New York limited liability company duly organized, validly existing,
and in good standing under the laws of the State of New York, with full power,
authority, and legal right to execute, deliver, and perform its duties and
comply with its obligations under this Agreement. XXX further represents and
warrants that it shall sell the shares of the Portfolios to Insurer in
compliance in all material respects with all applicable federal and state
securities laws.
ARTICLE III.
FUND SHARES
3.2. Fund agrees to make the shares of each Portfolio available for purchase by
Insurer and each Separate Account at net asset value and without sales charge,
subject to the terms and conditions of this Agreement. Fund may refuse to sell
the shares of any Portfolio to any person, or suspend or terminate the offering
of the shares of any Portfolio if such action is required by law or by
regulatory authorities having jurisdiction or is, in the sole discretion of the
Board, acting in good faith and in light of its fiduciary duties under federal
and any applicable state laws, necessary and in the best interests of the
shareholders of such Portfolio.
3.3. Fund agrees that it shall sell shares of the Portfolios only to persons
eligible to invest in the Portfolios in accordance with Section 817(h) of the
Code and the regulations thereunder, to the extent such Section and regulations
are applicable.
3.4. Except as noted in this Article III, Fund and Insurer agree that orders and
related payments to purchase and redeem Portfolio shares shall be processed in
the manner set out in Schedule 2 hereto, as the Parties may amend in writing
from time to time by mutual agreement.
3.11. Fund shall confirm each purchase or redemption order made by Insurer.
Transfer of Portfolio shares shall be by book entry only. No share certificates
shall be issued to Insurer. Shares ordered from Fund shall be recorded in an
appropriate title for Insurer, on behalf of each Separate or General Account.
3.13. Fund shall promptly notify Insurer of the amount of dividend and capital
gain, if any, per share of each Portfolio to which Insurer is entitled. Insurer
hereby elects to reinvest all dividends and capital gains of any Portfolio in
additional shares of that Portfolio at the applicable net asset value, until
Insurer otherwise notifies Fund in writing. Insurer reserves the right to revoke
this election and to receive all such income dividends and capital gain
distributions in cash.
ARTICLE IV.
STATEMENTS AND REPORTS
4.1. Fund shall provide Insurer with monthly statements of account by the
fifteenth (15th) Business Day of the following month.
4.2. At least annually, Fund or its designee shall provide Insurer, free of
charge, with as many Portfolio Prospectuses as Insurer may reasonably request
for distribution by Insurer to existing Contractholders and Participants that
have invested in that Portfolio. Fund or its designee shall provide Insurer, at
Insurer's expense, with as many Portfolio Prospectuses as Insurer may reasonably
request for distribution by Insurer to prospective purchasers of Contracts. If
requested by Insurer in lieu thereof, Fund or its designee shall provide such
documentation (including a "camera ready" copy of each Portfolio Prospectus as
set in type or, at the request of Insurer, as a diskette in the form sent to the
financial printer) and other assistance as is reasonably necessary in order for
the Parties once a year (or more frequently if the Portfolio Prospectuses are
supplemented or amended) to have the Contract Prospectuses and the Portfolio
Prospectuses printed together in one document.
4.3. Fund shall provide Insurer with copies of each Portfolio's proxy materials,
notices, periodic reports and other printed materials (which the Portfolio
customarily provides to its shareholders) in quantities as Insurer may
reasonably request for distribution by Insurer to each Contractholder and
Participant that has invested in that Portfolio.
4.4. Fund shall provide to Insurer at least one complete copy of all
registration statements, Portfolio Prospectuses, reports, proxy statements,
sales literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above, that
relate to Fund or its shares, contemporaneously with the filing of such document
with the Commission or other regulatory authorities.
4.5. Insurer shall provide to Fund at least one copy of all registration
statements, Contract Prospectuses, reports, proxy statements, sales literature
and other promotional materials, applications for exemptions, requests for
no-action letters, and all amend-ments to any of the above, that relate to the
Contracts or a Separate Account, contemp-oraneously with the filing of such
document with the Commission or the NASD.
ARTICLE V.
EXPENSES
5.1. Except as otherwise specifically provided herein, each Party will bear all
expenses incident to its performance under this Agreement.
ARTICLE VI.
EXEMPTIVE RELIEF
6.1. Insurer acknowledges that it has reviewed a copy of Fund's mixed and shared
funding exemptive order ("Order") and, in particular, has reviewed the
conditions to the relief set forth in the related notice ("Notice"). As required
by the conditions set forth in the Notice, Insurer shall report any potential or
existing conflicts promptly to the Board. In addition, Insurer shall be
responsible for assisting the Board in carrying out its responsibilities under
the Order by providing the Board with all information necessary for the Board to
consider any issues raised, including, without limitation, information whenever
Contract voting instructions are disregarded. Insurer, at least annually, shall
submit to the Board such reports, materials, or data as the Board may reasonably
request so that the Board may carry out fully the obligations imposed upon it by
the Order. Insurer agrees to carry out such responsibilities with a view to the
interests of existing Contractholders.
6.2. If a majority of the Board, or a majority of Disinterested Board Members,
determines that a material irreconcilable conflict exists with regard to
Contractholder investments in Fund, the Board shall give prompt notice to all
Participating Companies. If the Board determines that Insurer is a Participating
Insurance Company for whom the conflict is relevant, Insurer shall at its sole
cost and expense, and to the extent reasonably practicable (as determined by a
majority of the Disinterested Board Members), take such action as is necessary
to remedy or eliminate the irreconcilable material conflict. Such necessary
action may include, but shall not be limited to:
(a) Withdrawing the assets allocable to some or all Separate Accounts from Fund
or any Portfolio and reinvesting such assets in a different investment
medium, or submitting the question of whether such segregation should be
implemented to a vote of all affected Contractholders and, as appropriate,
segregating the assets of any appropriate group (i.e. variable annuity or
variable life insurance contract owners) that votes in favor of such
segregation; and/or
(b) Establishing a new registered management investment company.
6.3. If a material irreconcilable conflict arises as a result of a decision by
Insurer to disregard Contractholder voting instructions and that decision
represents a minority position or would preclude a majority vote by all
Contractholders having an interest in Fund, Insurer may be required, at the
Board's election, to withdraw the investments of its Separate Accounts in Fund.
6.4. For the purpose of this Article, a majority of the Disinterested Board
Members shall determine whether any proposed action adequately remedies any
material irreconcilable conflict. In no event shall Fund or XXX or any other
investment adviser of Fund be required to bear the expense of establishing a new
funding medium for any Contract. Insurer shall not be required by this Article
to establish a new funding medium for any Contract if an offer to do so has been
declined by vote of a majority of the Contractholders materially and adversely
affected by the material irreconcilable conflict.
6.5. No action by Insurer taken or omitted, and no action by the Separate
Account or Fund taken or omitted as a result of any act or failure to act by
Insurer pursuant to this Article VI shall relieve Insurer of its obligations
under or otherwise affect the operation of Article V.
ARTICLE VII.
VOTING OF FUND SHARES
7.1. Insurer shall provide pass-through voting privileges to all Contractholders
or Participants as long as the Commission continues to interpret the Act as
requiring pass-through voting privileges for Contractholders or Participants.
Accordingly, Insurer, where applicable, shall vote shares of a Portfolio held in
each Separate Account in a manner consistent with voting instructions timely
received from its Contractholders or Participants. Insurer shall be responsible
for assuring that the Separate Account calculates voting privileges in a manner
consistent with other Participating Companies. Insurer shall vote shares for
which it has not received timely voting instructions, as well as shares it owns,
in the same proportion as it votes those shares for which it has received voting
instructions.
7.2. If and to the extent Rule 6e-2 and Rule 6e-3(T) under the Act are amended,
or if Rule 6e-3 is adopted, to provide exemptive relief from any provision of
the Act or the rules thereunder with respect to mixed and shared funding on
terms and conditions materially different from any exemptions granted in the
Order, then Fund, and/or the Participating Companies, as appropriate, shall take
such steps as may be necessary to comply with Rule 6e-2 and Rule 6e-3(T), as
amended, and Rule 6e-3, as adopted, to the extent such Rules are applicable.
ARTICLE VIII.
MARKETING
8.1. Fund or LF & Co. shall periodically furnish Insurer with Portfolio
Prospectuses and sales literature or other promotional materials for each
Portfolio, in quantities as Insurer may reasonably request for distribution to
prospective purchasers of Contract. Expenses for the printing and distribution
of such documents shall be borne by Insurer.
8.2. Insurer shall designate certain persons or entities that shall have the
requisite licenses to solicit applications for the sale of Contracts. Insurer
shall make reasonable efforts to market the Contracts and shall comply with all
applicable federal and state laws in connection therewith.
8.3. Insurer shall furnish, or shall cause to be furnished, to Fund, each piece
of sales literature or other promotional material in which Fund, XXX, XX & Co.,
Fund's administrator is named, at least fifteen (15) Business Days prior to its
use. No such material shall be used unless Fund or its designee approves such
material. Such approval (if given) must be in writing and shall be presumed not
given if not received within ten (10) Business Days after receipt of such
material. Fund shall use all reasonable efforts to respond within ten days of
receipt.
8.4. Insurer shall not give any information or make any representations or
statements on behalf of Fund, XXX, XX & Co., or concerning Fund or any Portfolio
in connection with the sale of the Contracts other than the information or
representations contained in the registration statement or a Portfolio
Prospectus, as the same may be amended or supplemented from time to time, or in
reports or proxy statements for each Portfolio, or in sales literature or other
promotional material approved by Fund.
8.5. Fund shall furnish, or shall cause to be furnished, to Insurer, each piece
of the Fund's sales literature or other promotional material in which Insurer or
a Separate Account is named, at least fifteen (15) Business Days prior to its
use. No such material shall be used unless Insurer approves such material. Such
approval (if given) must be in writing and shall be presumed not given if not
received within ten (10) Business Days after receipt of such material. Insurer
shall use all reasonable efforts to respond within ten days of receipt.
8.6. Fund shall not, in connection with the sale of Portfolio shares, give any
information or make any representations on behalf of Insurer or concerning
Insurer, a Separate Account, or the Contracts other than the information or
representations contained in a registration statement for the Contracts or the
Contract Prospectus, as the same may be amended or supplemented from time to
time, or in published reports for each Separate Account that are in the public
domain or approved by Insurer for distribution to Contractholders or
Participants, or in sales literature or other promotional material approved by
Insurer.
8.7. For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without limitation,
advertisements (such as material published, or designed for use, in a newspaper,
magazine or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures or other public media),
sales literature (such as any written communication distributed or made
generally available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, or reprints or
excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, prospectuses, statements
of additional information, shareholder reports and proxy materials, and any
other material constituting sales literature or advertising under the rules of
the National Association of Securities Dealers, Inc. ("NASD"), the Act or the
1933 Act.
ARTICLE IX.
INDEMNIFICATION
9.1. Insurer and Distributor each agree to indemnify and hold harmless Fund,
XXX, any sub-investment adviser of a Portfolio, and their affiliates, and each
of their respective directors, trustees, general members, officers, employees,
agents and each person, if any, who controls or is associated with any of the
foregoing entities or persons within the meaning of the 1933 Act (collectively,
the "Indemnified Parties" for purposes of this Section), against any and all
losses, claims, damages or liabilities joint or several (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amounts paid in settlement of, any action, suit or proceeding or any
claim asserted) (collectively, "Losses") for which the Indemnified Parties may
become subject, under the 1933 Act or otherwise, insofar as such Losses (or
actions in respect to thereof):
(a) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact (collectively "materially untrue statement")
contained in any registration statement, Contract Prospectus, Contract, or sales
literature or other promotional material relating to a Separate Account or the
Contracts (collectively, "Account documents"), or arise out of or are based upon
the omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
(collectively "material omission");
(b) arise out of or are based upon any materially untrue statement or material
omission made in any registration statement, Portfolio Prospectus, or sales
literature or other promotional material relating to Fund or a Portfolio
(collectively, "Portfolio documents"), provided such statement or omission was
made in reliance upon and in conformity with information provided in writing to
Fund by or on behalf of Insurer specifically for use therein;
(c) arise out of or as a result of statements or representations (other than
statements or representations contained in any Portfolio document on which
Insurer or Distributor have reasonably relied) or wrongful conduct of Insurer,
Distributor, their respective agents, and persons under their respective
control, with respect to the sale and distribution of Contracts or Portfolio
shares;
(d) arise out of any material breach of any representation and/or warranty made
by Insurer or Distributor in this Agreement, or arise out of or result from any
other material breach of this Agreement by Insurer or Distributor; or
(e) arise out of Insurer's incorrect calculation and/or untimely reporting of
net purchase or redemption orders.
Insurer and Distributor shall reimburse any Indemnified Party in connection with
investigating or defending any Loss (or actions in respect to thereof);
provided, however, that with respect to clause (a) above neither Insurer nor
Distributor shall be liable in any such case to the extent that any Loss arises
out of or is based upon any materially untrue statement or material omission
made in any Account documents, which statement or omission was made in reliance
upon and in conformity with written information furnished to Insurer by or on
behalf of Fund specifically for use therein. This indemnity agreement shall be
in addition to any liability that Insurer or Distributor may otherwise have.
9.2. Fund and XXX each agree to indemnify and hold harmless Insurer and
Distributor and each of their respective directors, officers, employees, agents
and each person, if any, who controls Insurer or Distributor (collectively,
"Indemnified Parties" for purposes of this Section) within the meaning of the
1933 Act against any Losses to which they or any Indemnified Party may become
subject, under the 1933 Act or otherwise, insofar as such Losses (or actions in
respect thereof):
(a) arise out of or are based upon any materially untrue statement or any
material omission made in any Portfolio document;
(b) arise out of or are based upon any materially untrue statement or any
material omission made in any Account document, provided such statement or
omission was made in reliance upon and in conformity with information provided
in writing to Insurer by or on behalf of Fund specifically for use therein;
(c) arise out of or as a result of statements or representations (other than
statements or representations contained in any Account document on which Fund or
XXX have reasonably relied) or wrongful conduct of Fund, XXX, their respective
agents, and persons under their respective control, with respect to the sale of
Portfolio Shares; or
(d) arise out of any material breach of any representation and/or warranty made
by Fund or XXX in this Agreement, or arise out of or result from any other
material breach of this Agreement by Fund or XXX.
Fund and XXX shall reimburse any legal or other expenses reasonably incurred by
any Indemnified Party in connection with investigating or defending any such
Loss; provided, however, that with respect to clause (a) above neither Fund nor
XXX shall be liable in any such case to the extent that any such Loss arises out
of or is based upon an materially untrue statement or material omission made in
any Portfolio document, which statement or omission was made in reliance upon
and in conformity with written information furnished to Fund by or on behalf of
Insurer specifically for use therein. This indemnity agreement shall be in
addition to any liability that Fund or XXX may otherwise have.
9.3. Fund and XXX shall indemnify and hold Insurer harmless against any Loss
that Insurer may incur, suffer or be required to pay due to Fund's incorrect
calculation of the daily net asset value, dividend rate or capital gain
distribution rate of a Portfolio or incorrect or untimely reporting of the same;
provided, however, that Fund shall have no obligation to indemnify and hold
harmless Insurer if the incorrect calculation or incorrect or untimely reporting
was the result of incorrect or untimely information furnished by or on behalf of
Insurer or otherwise as a result of or relating to Insurer's breach of this
Agreement. In no event shall Fund be liable for any consequential, incidental,
special or indirect damages resulting to Insurer hereunder.
Notwithstanding anything herein to the contrary, in no event shall Fund or XXX
be liable to any individual or entity, including without limitation, Insurer, or
any Participating Insurance Company or any Contractholder, with respect to any
Losses that arise out of or result from:
(a) a breach of any representation, warranty, and/or covenant made by Insurer
hereunder or by any Participating Insurance Company under an agreement
containing substantially similar representations, warranties and covenants;
(b) the failure by Insurer or any Participating Insurance Company to maintain
its separate account (which invests in any Portfolio) as a legally and validly
established segregated asset account under applicable state law and as a duly
registered unit investment trust under the provisions of the Act (unless exempt
therefrom); or
(c) the failure by Insurer or any Participating Insurance Company to maintain
its variable annuity and/or variable life insurance contracts (with respect to
which any Portfolio serves as an underlying funding vehicle) as life insurance,
endowment or annuity contracts under applicable provisions of the Code.
A. Further, neither Fund nor XXX shall have any liability for any failure or
alleged failure to comply with the diversification requirements of Section
817(h) of the Code or the regulations thereunder if Insurer fails to comply with
any of the following clauses, and such failure could be shown to have materially
contributed to the liability:
(a) In the event the Internal Revenue Service ("IRS") asserts in writing in
connection with any governmental audit or review of Insurer or, to Insurer's
knowledge, of any Contractholder, that any Portfolio has failed or allegedly
failed to comply with the diversification requirements of Section 817(h) of the
Code or the regulations thereunder or Insurer otherwise becomes aware of any
facts that could give rise to any claim against Fund or its affiliates as a
result of such a failure or alleged failure,
(i) Insurer shall promptly notify Fund of such assertion or potential
claim;
(ii) Insurer shall consult with Fund as to how to minimize any
liability that may arise as a result of such failure or alleged
failure;
(iii)Insurer shall use its best efforts to minimize any liability of
Fund or its affiliates resulting from such failure, including,
without limitation, demonstrating, pursuant to Treasury
Regulations Section 1.817-5(a)(2), to the Commissioner of the IRS
that such failure was inadvertent;
(iv) Insurer shall permit Fund, its affiliates and their legal and
accounting advisors to participate in any conferences, settlement
discussions or other administrative or judicial proceeding or
contests (including judicial appeals thereof) with the IRS, any
Contractholder or any other claimant regarding any claims that
could give rise to liability to Fund or its affiliates as a
result of such a failure or alleged failure;
(v) any written materials to be submitted by Insurer to the IRS, any
Contractholder or any other claimant in connection with any of
the foregoing proceedings or contests (including, without
limitation, any such materials to be submitted to the IRS
pursuant to Treasury Regulations Section 1.817-5(a)(2)), shall be
provided by Insurer to Fund (together with any supporting
information or analysis) at least ten (10) Business Days prior to
the day on which such proposed materials are to be submitted and
shall not be submitted by Insurer to any such person without the
express written consent of Fund which shall not be unreasonably
withheld;
(vi) Insurer shall provide Fund or its affiliates and their accounting
and legal advisors with such cooperation as Fund shall reasonably
request (including, without limitation, by permitting Fund and
its accounting and legal advisors to review the relevant books
and records of Insurer) in order to facilitate review by Fund or
its advisors of any written submissions provided to it pursuant
to the preceding clause or its assessment of the validity or
amount of any claim against its arising from such a failure or
alleged failure; and
(vii)Insurer shall not with respect to any claim of the IRS or any
Contractholder that would give rise to a claim against Fund or
its affiliates compromise or settle any claim, accept any
adjustment on audit, or forego any allowable judicial appeals,
without the express written consent of Fund or its affiliates,
which shall not be unreasonably withheld, provided that Insurer
shall not be required to appeal any adverse judicial decision
unless Fund or its affiliates shall have provided an opinion of
independent counsel to the effect that a reasonable basis exists
for taking such appeal.
Promptly after receipt by an indemnified party under this Article of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this Article,
notify the indemnifying party of the commencement thereof. The failure to so
notify the indemnifying party shall not relieve the indemnifying party from any
liability under this Article IX, except to the extent that the omission results
in a failure of actual notice to the indemnifying party and such indemnifying
party is damaged solely as a result of the failure to give such notice. In case
any such action is brought against any indemnified party, and it notified the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it may wish, assume the
defense thereof, with counsel satisfactory to such indemnified party, and to the
extent that the indemnifying party has given notice to such effect to the
indemnified party and is performing its obligations under this Article, the
indemnifying party shall not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, other than reasonable costs of investigation. Notwithstanding the
foregoing, in any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (a) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(b) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent.
A successor by law of any Party to this Agreement shall be entitled
to the benefits of the indemnification contained in this Article IX,
which shall survive any termination of this Agreement.
ARTICLE X.
COMMENCEMENT AND TERMINATION
10.1. This Agreement shall be effective as of the date hereof and shall continue
in force until terminated in accordance with the provisions herein.
10.2. This Agreement shall terminate without penalty as to one or more
Portfolios:
(a) At the option of Insurer, Distributor, Fund, or XXX at any time from the
date hereof upon 180 days' notice, unless a shorter time is agreed to by the
Parties;
(b) At the option of Insurer if it determines that shares of any Portfolio are
not reasonably available to meet the requirements of the Contracts. Insurer
shall furnish prompt notice of election to terminate and termination shall be
effective ten days after receipt of notice unless Fund makes available a
sufficient number of shares to meet the requirements of the Contracts within
such ten day period;
(c) At the option of Insurer or Fund, upon the institution of formal proceedings
against the other or their respective affiliates by the Commission, the NASD or
any other regulatory body, the expected or anticipated ruling, judgment or
outcome of which would, in the Insurer's or Fund's reasonable judgment,
materially impair the other's ability to meet and perform its obligations and
duties hereunder. Prompt notice of election to terminate shall be furnished by
Insurer or Fund, as the case may be, with termination to be effective upon
receipt of notice;
(d) At the option of Insurer or Fund, if either shall determine, in its sole
judgment reasonably exercised in good faith, that the other has suffered a
material adverse change in its business or financial condition or is the subject
of material adverse publicity and such material adverse change or material
adverse publicity is likely to have a material adverse impact upon the business
and operation of the Insurer, Fund or XXX, as the case may be. Insurer or Fund
shall notify the other in writing of any such determination and its intent to
terminate this Agreement, which termination shall be effective on the sixtieth
(60th) day following the giving of such notice, provided the determination of
Insurer or Fund, as the case may be, continues to apply on that date.
(e) Upon termination of the Investment Management Agreement between Fund, on
behalf of its Portfolios, and XXX or its successors unless Insurer specifically
approves the selection of a new investment adviser for the Portfolios. Fund
shall promptly furnish notice of such termination to Insurer;
(f) In the event Portfolio shares are not registered, issued or sold in
accordance with applicable federal law, or such law precludes the use of such
shares as the underlying investment medium of Contracts issued or to be issued
by Insurer. Termination shall be effective immediately upon such occurrence
without notice;
(g) At the option of Fund upon a determination by the Board in good faith that
it is no longer advisable and in the best interests of shareholders for Fund to
continue to operate pursuant to this Agreement. Termination shall be effective
upon notice by Fund to Insurer of such termination;
(h) At the option of Fund if the Contracts cease to qualify as annuity contracts
or life insurance policies, as applicable, under the Code, or if Fund reasonably
believes that the Contracts may fail to so qualify. Termination shall be
effective immediately upon such occurrence or reasonable belief without notice;
(i) At the option of any Party, upon another's breach of any material provision
this Agreement, which breach has not been cured to the satisfaction of the
non-breaching Parties within ten days after written notice of such breach is
delivered to the breaching Party;
(j) At the option of Fund, if the Contracts are not registered, issued or sold
in accordance with applicable federal and/or state law. Termination shall be
effective immediately upon such occurrence without notice;
(k) Upon assignment of this Agreement, unless made with the written consent of
the non-assigning Parties.
Any such termination pursuant to this Article X shall not affect the
operation of Articles V or IX of this Agreement. The Parties agree that any
termination pursuant to Article VI shall be governed by that Article.
10.3. Notwithstanding any termination of this Agreement pursuant to Section 10.2
hereof, Fund and XXX may, at the option of Fund, continue to make available
additional Portfolio shares for so long as Fund desires pursuant to the terms
and conditions of this Agreement as provided below, for all Contracts in effect
on the effective date of termination of this Agreement (hereinafter referred to
as "Existing Contracts"). Specifically, without limitation, if Fund so elects to
make additional Portfolio shares available, the owners of the Existing Contracts
or Insurer, whichever shall have legal authority to do so, shall be permitted to
reallocate investments among the Portfolios, redeem investments in the
Portfolios and/or invest in the Portfolios upon the making of additional
purchase payments under the Existing Contracts. In the event of a termination of
this Agreement pursuant to Section 10.2 hereof, Fund, as promptly as is
practicable under the circumstances, shall notify Insurer whether Fund shall
continue to make Portfolio shares available after such termination. If Portfolio
shares continue to be made available after such termination, the provisions of
this Agreement shall remain in effect and thereafter either Fund or Insurer may
terminate the Agreement, as so continued pursuant to this Section 10.3, upon
prior written notice to the other Parties, such notice to be for a period that
is reasonable under the circumstances but, if given by Fund, need not be for
more than six months.
10.1. In the event of any termination of this Agreement pursuant to Section 10.2
hereof, the Parties agree to cooperate and give reasonable assistance to one
another in taking all necessary and appropriate steps for the purpose of
ensuring that a Separate Account owns no shares of a Portfolio beyond six months
from the date of termination. Such steps may include, without limitation,
substituting other mutual fund shares for those of the affected Portfolio.
ARTICLE XI.
AMENDMENTS
11.1. Any changes in the terms of this Agreement shall be made by agreement in
writing by the Parties hereto.
ARTICLE XII.
NOTICE
12.1. Each notice required by this Agreement shall be given by certified mail,
return receipt requested, to the appropriate Parties at the following addresses:
Insurer:
Distributor:
Fund: Lazard Retirement Series, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
XXX: Lazard Asset Management
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
with copies to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Notice shall be deemed to be given on the date of receipt by the
addresses as evidenced by the return receipt.
ARTICLE XIII.
MISCELLANEOUS
13.1. This Agreement has been executed on behalf of the Parties by the
undersigned duly authorized officers in their capacities as officers of Insurer,
Distributor, XXX, and Fund.\
13.1. If any provision of this Agreement is held or made invalid by a court
decision, statute, rule, or otherwise, the remainder of this Agreement will not
be affected thereby.
13.1. The rights, remedies, and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, that the Parties are entitled to under federal and state
laws.
13.1. This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
ARTICLE XIV.
LAW
14.1. This Agreement shall be construed in accordance with the internal laws of
the State of New York, without giving effect to principles of conflict of laws.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
[NAME OF INSURANCE COMPANY]
By:
Attest:_____________________
[NAME OF DISTRIBUTOR]
By:
Attest:_____________________
LAZARD RETIREMENT SERIES, INC.
By:
Attest:_____________________
LAZARD ASSET MANAGEMENT, LLC
a division of Lazard Freres & Co., LLC
By:
Attest:______________________
SCHEDULE 1
Portfolios
Lazard Retirement Emerging Markets Portfolio Lazard Retirement Equity Portfolio
Lazard Retirement Global Equity Portfolio Lazard Retirement International Equity
Portfolio Lazard Retirement International Fixed-Income Portfolio Lazard
Retirement International Small Cap Portfolio Lazard Retirement Small Cap
Portfolio Lazard Retirement Strategic Yield Portfolio
Separate Accounts and Contracts
SCHEDULE 2
PORTFOLIO SHARE ORDER PROCESSING
Timely Pricing and Orders
1. Each Business Day, Fund shall use its best efforts to make each Portfolio's
closing net asset value per share ("NAV") on that Day available to Insurer by
6:30 p.m. New York time.
2. At the end of each Business Day, Insurer shall use the information described
above to calculate each Separate Account's unit values for that Day. Using this
unit value, Insurer shall process that Day's Contract and Separate Account
transactions to determine the net dollar amount of each Portfolio's shares to be
purchased or redeemed.
3. Insurer shall transmit net purchase or redemption orders to Fund or its
designee by 9:00 a.m. New York time on the Business Day next following Insurer's
receipt of the information relating to such orders in accordance with paragraph
1 above; provided, however, that Fund shall provide additional time to Insurer
in the event Fund is unable to meet the 6:30 p.m. deadline stated above. Such
additional time shall be equal to the additional time that Fund takes to make
the net asset values available to Insurer. For informational purposes, Insurer
shall separately describe the amount of shares of each Portfolio that is being
purchased, redeemed, or exchanged from one Portfolio to the other. In addition,
Insurer shall use its best efforts to notify Fund in advance of any unusually
large purchase or redemption orders.
Timely Payments
4. Insurer shall pay for any net purchase order by wiring Federal Funds to Fund
or its designated custodial account by 12:00 noon New York time on the same
Business Day it transmits the order to Fund pursuant to paragraph 3 above.
5. Fund shall pay for any net redemption order by wiring the redemption proceeds
to Insurer, except as provided below, within three (3) Business Days or, upon
notice to Insurer, such longer period as permitted by the Act or the rules,
orders or regulations thereunder. In the case of any net redemption order valued
at or greater than $1 million, Fund shall wire such amount to Insurer within
seven days of the order. In the case of any net redemption order requesting the
application of proceeds from the redemption of one Portfolio's shares to the
purchase of another Portfolio's shares, Fund shall so apply such proceeds the
same Business Day that Insurer transmits such order to Fund.
Applicable Price
9. If Fund provides Insurer with materially incorrect net asset value per share
information through no fault of Insurer, Insurer, on behalf of the Separate
Account, shall be entitled to an adjustment to the number of shares purchased or
redeemed to reflect the correct net asset value per share in accordance with
Fund's current policies for correcting pricing errors. Any material error in the
calculation of net asset value per share, dividend or capital gain information
shall be reported promptly upon discovery to Insurer.
