FUND PARTICIPATION AGREEMENT
AXA EQUITABLE LIFE INSURANCE COMPANY,
LAZARD RETIREMENT SERIES, INC.
AND
LAZARD ASSET MANAGEMENT SECURITIES LLC
OCTOBER [ ], 2009
FUND PARTICIPATION AGREEMENT
----------------------------
Among
AXA Equitable Life Insurance Company,
Lazard Retirement Series, Inc.
and
Lazard Asset Management Securities LLC
THIS AGREEMENT, effective______________, by and among AXA Equitable Life
Insurance Company (the "Company"), a New York Corporation, on its own behalf and
on behalf of certain separate accounts (the "Accounts"); Lazard Retirement
Series, Inc., a Maryland corporation (the "Fund") and Lazard Asset Management
Securities LLC (the "Distributor"), a Delaware limited liability company.
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance policies and/or variable annuity
contracts (collectively, the "Variable Insurance Products") to be offered by
insurance companies (the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several series
of shares, each designated a "Portfolio" and representing the interest in a
particular managed portfolio of securities and other assets; and
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission (the "SEC"), dated August 7, 1997 (File No. IC-22781) (the "Mixed and
Shared Funding Exemptive Order" or the "Order"), granting Participating
Insurance Companies and variable annuity and variable life insurance separate
accounts exemptions from the provisions of
sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as
amended (hereinafter the "1940 Act"), and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Fund to be sold to
and held by variable annuity and variable life insurance separate accounts of
life insurance companies that may or may not be affiliated with one another and
qualified pension and retirement plans ("Qualified Plans"); and
WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act and shares of the Portfolio(s) are registered under the
Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Distributor is duly registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, (the "1934 Act") and is a member in
good standing of the Financial Industry Regulatory Authority (the "FINRA"); and
WHEREAS, the Company has issued and plans to continue to issue certain
variable life insurance policies and/or variable annuity contracts supported
wholly or partially by the Accounts (the "Contracts"); and such Contracts are
listed in Schedule A attached hereto and incorporated herein by reference, as
such schedule may be amended from time to time by mutual written agreement of
the parties; and
WHEREAS, each Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of the Company
under the insurance laws of the State of New York, to set aside and invest
assets attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to continue to purchase shares in the
Portfolios listed on Schedule B attached hereto and incorporated herein by
reference, as such schedule may be amended from time to time by mutual written
agreement of the parties (the "Portfolios"), on behalf of the Accounts to fund
the Contracts, and the Fund is authorized to sell such shares to unit investment
trusts such as the Accounts at net asset value; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company also intends to continue to purchase shares in other
open-end investment companies or series thereof not affiliated with the Fund
(the "Unaffiliated Funds") on behalf of the Accounts to fund the Contracts.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, and the Distributor agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund agrees to sell to the Company for its accounts those shares of
the Portfolios which the Account orders, executing such orders on each Business
Day at the net asset value next computed after receipt by the Fund or its
designee of the order for the shares of the Portfolios. For purposes of this
Section 1.1, the Company shall be the designee of the Fund for receipt of such
orders and receipt by such designee shall constitute receipt by the Fund,
provided that the Fund receives notice of any such order by 9:30 a.m. Eastern
time on the next following Business Day. "Business Day" shall mean any day on
which the New York Stock Exchange (the "NYSE") is open for trading and on which
the Portfolio calculates its net asset value pursuant to the rules of the SEC as
described in the then-current registration statement of the Fund on Form N-1A.
"Valuation Time" shall mean the time as of which the Fund calculates net asset
value for the shares of the Portfolios on the relevant Business Day, usually,
4:00 p.m. Eastern time.
1.2. The Fund agrees to make shares of the Portfolios available for purchase,
at the applicable net asset value per share, by the Company and the Accounts on
those days on which the Fund calculates its Portfolios' net asset values
pursuant to rules of the SEC, and the Fund shall calculate such net asset values
on each day on which the NYSE is open for trading. Notwithstanding the
foregoing, the Fund may refuse to sell shares of any Portfolio to any person, or
suspend or terminate the offering of 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 of Directors of the Fund (the "Board") acting in
good faith, necessary or appropriate in the best interests of the shareholders
of such Portfolio. All orders accepted by the Company shall be subject to the
terms of the then current prospectus of the Fund. The Company shall use its best
efforts, and shall reasonably cooperate with, the Fund to enforce stated
prospectus policies regarding transactions in Portfolio shares. The Company
acknowledges that orders for Portfolio shares accepted by it in violation of the
stated policies of the Fund as set forth in the Fund's then-current prospectus
may be subsequently revoked or cancelled by the Fund and that the Fund shall not
be responsible for any losses incurred by the Company or the Contract owner as a
result of such cancellation. In addition, the Company acknowledges that the Fund
has the right to refuse any purchase order for any reason, particularly if the
Fund determines that a Portfolio would be unable to invest the money effectively
in accordance with its investment policies or would otherwise be adversely
affected due to the size of the transaction, frequency of trading, or other
factors.
1.3. The Fund agrees that it shall sell shares of the Portfolios only to
Participating Insurance Companies and their separate accounts, the general
accounts of Participating Insurance Companies and their affiliates and to
qualified pension and retirement plans consistent with the Order. No shares of
any Portfolio will otherwise be sold to the general public.
1.4. The Fund agrees to redeem for cash, on the Company's request, any full
or fractional shares of the Fund held by the Company, executing such requests on
each Business Day at the net asset value next computed after receipt by the Fund
or its designee of the request for redemption. For purposes of this Section 1.4,
the Company shall be the designee of the Fund for receipt of requests for
redemption and receipt by such designee shall constitute receipt by the Fund,
provided that the Fund receives notice of any such request for redemption by
9:30 a.m. Eastern time on the next following Business Day.
1.5. The parties hereto acknowledge that the arrangement contemplated by this
Agreement is not exclusive; the Fund's shares may be sold to other Participating
Insurance Companies (subject to Section 1.3) and the cash value of the Contracts
may be invested in other investment companies.
1.6. The Company shall pay for Fund shares by 3:00 p.m. Eastern time on the
next
Business Day after an order to purchase Fund shares is received in accordance
with the provisions of Section 1.1 hereof. Payment shall be in federal funds
transmitted by wire and/or by a credit for any shares redeemed the same day as
the purchase.
1.7. The Fund shall pay and transmit the proceeds of redemptions of Fund
shares by 11:00 a.m. Eastern Time on the next Business Day after a redemption
order is received in accordance with Section 1.4 hereof; provided, however, that
the Fund may delay payment in extraordinary circumstances to the extent
permitted under Section 22(e) of the 1940 Act. Payment shall be in federal funds
transmitted by wire and/or a credit for any shares purchased the same day as the
redemption.
1.8. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or the Accounts. Shares
purchased from the Fund will be recorded in an appropriate title for the
relevant Account or the relevant sub-account of an Account.
1.9. The Fund shall furnish same day notice (by electronic communication or
telephone, followed by electronic confirmation) to the Company of any income,
dividends or capital gain distributions payable on a Portfolio's shares. The
Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on a Portfolio's shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. The
Fund shall notify the Company by the end of the next following Business Day of
the number of shares so issued as payment of such dividends and distributions.
1.10. The Fund shall make the net asset value per share for each Portfolio
available to the Company on each Business Day as soon as reasonably practicable
after the net asset value per share is calculated and shall use its best efforts
to make the net asset value per share for each Portfolio available by 6:30 p.m.
Eastern time. In the event of a material error in the computation of a
Portfolio's net asset value per share ("NAV") or any dividend or capital gain
distribution (each, a "pricing error"), the Fund shall notify the Company as
soon as reasonably possible after
discovery of the error. Such notification may be verbal, but shall be confirmed
promptly in writing. A pricing error shall be corrected in accordance with the
Fund's Net Asset Value Error Correction Policy (the "Policy"), a copy of which
has been provided to Company.
If an adjustment is necessary to correct a material error (as described in
the Policy) which has caused Contract owners to receive less than the amount to
which they are entitled, the number of shares of the applicable sub-account of
such Contract owners will be adjusted and the amount of any underpayments shall
be credited by the Adviser to the Company for crediting of such amounts to the
applicable sub-accounts of such Contract owners, subject to certain de minimus
amounts as set forth in the Policy. Upon notification by the Fund's investment
adviser (the "Adviser") of any overpayment due to a material error, the Company
shall use its best efforts to promptly remit to the Adviser any overpayment to
Contract owners. In no event shall the Company be liable to Contract owners for
any such adjustments or underpayment amounts.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that: (a) the securities deemed to
be issued by the Accounts under the Contracts are or will be registered under
the 1933 Act, or are not so registered in proper reliance upon an exemption from
such registration requirements; (b) the Contracts will 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 suitability requirements.
2.2. The Company represents and warrants that: (a) it is and shall remain an
insurance company duly organized and in good standing under applicable law; (b)
it has legally and validly established each Account prior to any issuance or
sale of units thereof, and will continue to maintain each Account, as a separate
account under New York State law; and (c) it has registered each Account as a
unit investment trust in accordance with the provisions of the 1940 Act to serve
as a segregated investment account for the Contracts, and will maintain such
registration for so long as any Contracts are outstanding as required by
applicable law or, alternatively, the Company has not registered one or more
Accounts in proper reliance upon an
exclusion from such registration requirements.
2.3. The Fund represents and warrants that: (a) the Fund shares sold pursuant
to this Agreement shall be registered under the 1933 Act; (b) the Fund shares
sold pursuant to this Agreement shall be duly authorized for issuance and sold
in compliance with all applicable federal securities laws including, without
limitation, the 1933 Act, the 1934 Act, and the 1940 Act; (c) the Fund is and
shall remain a registered investment company under the 1940 Act; and (d) the
Fund shall amend the registration statement for its shares under the 1933 Act
and the 1940 Act from time to time as required in order to effect the continuous
offering of its shares.
2.4. The Fund represents and warrants that it has adopted a plan pursuant to
Rule 12b-1 under the 1940 Act for its Service Class of shares. The parties
acknowledge that the Fund reserves the right to modify its existing plan or to
adopt additional plans pursuant to Rule 12b-1 under the 1940 Act (including with
respect to its Investor Class of shares) and to impose an asset-based or other
charge to finance distribution expenses as permitted by applicable law and
regulation. The Fund and the Distributor agree to comply with applicable
provisions and SEC interpretation of the 1940 Act with respect to any
distribution plan.
2.5. The Fund represents and warrants that it shall register and qualify the
shares for sale in accordance with the laws of the various states if and to the
extent required by applicable law.
2.6. The Fund represents and warrants that it is lawfully organized and
validly existing under the laws of the State of Maryland and that it does and
will comply in all material respects with the 1940 Act.
2.7. Without limiting the scope of anything contained in Article VI of this
Agreement, the Fund represents and warrants that each Portfolio of the Fund will
comply with Section 817(h) of the Internal Revenue Code of 1986, as amended (the
"Code") and Treasury Regulation 1.817-5, relating to the diversification
requirements for variable annuity, endowment, or life insurance contracts and
any amendments or other modifications to such Section or Regulations (and any
revenue rulings, revenue procedures, notices, and other published
announcements of the Internal Revenue Service interpreting these provisions). In
the event the Fund should fail to so qualify at the end of a calendar quarter,
it will take all reasonable steps (a) to notify the Company of such breach and
(b) to resume compliance with such diversification requirement within the grace
period afforded by Treasury Regulations 1.817-5. If the Fund does not so
adequately diversify the Portfolio during the grace period it will take
reasonable steps to notify the Company that the Portfolio has failed to comply.
2.8. The Distributor represents and warrants that it is and shall remain duly
registered under all applicable federal and state securities laws and that it
shall perform its obligations for the Fund in compliance in all material
respects with the laws of any applicable state and federal securities laws.
2.9. The Fund represents and warrants that all of its officers, employees,
investment advisers, and other individuals or entities dealing with the money
and/or securities of the Fund are, and shall continue to be at all times,
covered by one or more blanket fidelity bonds or similar coverage for the
benefit of the Fund in an amount not less than the minimal coverage required by
Rule 17g-1 under the 1940 Act or related provisions as may be promulgated from
time to time. The aforesaid bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.11. It is expected that each Portfolio shall be classified as a "regulated
investment company" or "disregarded entity" for federal income tax purposes and
shall at all times maintain such classification; (ii) to notify the Company upon
having a reasonable basis for believing that the Fund or any Portfolio has
ceased to comply, or might not so comply, with the aforesaid classification as a
"regulated investment company" or "disregarded entity," and (iii) that each
Portfolio shall not be a "publicly-traded partnership" within the meaning of the
Code and the regulations thereunder.
2.12. The Fund represents and warrants that, subject to compliance with
applicable law and regulatory requirements, it will provide the Company with as
much advance notice as is reasonably practicable of any material change
affecting the Portfolios (including, but not limited
to, any material change in the registration statement or prospectus affecting
the Portfolios) and any proxy solicitation affecting the Portfolios.
2.13. The Company represents and warrants, for purposes other than
diversification under Section 817 of the Code, that the Contracts are currently
and at the time of issuance will be treated as annuity contracts or life
insurance policies under applicable provisions of the Code, and that it will
make every effort to maintain such treatment and that it will notify the Fund
and the Distributor immediately upon having a reasonable basis for believing
that the Contracts have ceased to be so treated or that they may not be so
treated in the future. In addition, the Company represents and warrants that
interests in each Account are offered exclusively through the purchase of or
transfer into a "variable contract" within the meaning of such terms under
Section 817 of the Code and the regulations thereunder. The Company will use
best efforts to continue to meet such definitional requirements, and it will
notify the Fund and the Distributor immediately upon having a reasonable basis
for believing that such requirements have ceased to be met or that they may not
be met in the future.
2.14. Company has adopted and implemented compliance policies and procedures
to comply with all applicable money laundering and currency transaction
reporting laws, regulations, requirements and guidance, including those relating
to Contract owner identification and verification; monitoring for Specially
Designated Nationals and Blocked Persons named on the U.S. Treasury Department's
Office of Foreign Assets Control list or other similar governmental lists;
suspicious activity reporting; and recordkeeping requirements (collectively,
"AML Requirements. Company will ensure the ability of federal examiners to
obtain information and records relating to AML Requirements and the ability of
Distributor and Fund or their agents to inspect the records and facilities of
Company regarding compliance with AML Requirements. Company will provide Fund
with such information, representations and certifications regarding compliance
with AML Requirements as Fund may reasonably request. Company will notify Fund
if any of its representations with respect to compliance with AML Requirements
ceases to be true.
2.15. The Company represents and warrants that it is currently in compliance,
and will
remain in compliance, with all applicable laws, rules and regulations relating
to consumer privacy, including, but not limited to, Regulation S-P.
2.16. The Company represents and warrants that it has adopted, and will at
all times during the term of this Agreement maintain, reasonable and appropriate
procedures ("Late Trading Procedures") designed to ensure that any and all
orders relating to the purchase, sale or exchange of Fund shares communicated to
the Fund are treated in accordance with Article I of this Agreement as having
been received on a Business Day have been received by the Valuation Time on such
Business Day and were not modified after the Valuation Time, and that all orders
received from Contract owners but not rescinded by the Valuation Time were
communicated to the Fund or its agent as received for that Business Day. Each
transmission of orders by the Company shall constitute a representation by the
Company that such orders are accurate and complete and relate to orders received
by the Company by the Valuation Time on the Business Day for which the order is
to be priced and that such transmission includes all orders relating to Fund
shares received from Contract owners but not rescinded by the Valuation Time.
The Company agrees to provide the Fund or its designee with a copy of the Late
Trading Procedures and such certifications and representations regarding the
Late Trading Procedures as the Fund or its designee may reasonably request. The
Company will promptly notify the Fund in writing of any material change to the
Late Trading Procedures.
2.17. The Company represents and warrants that it has adopted, and will at
all times during the term of this Agreement maintain, reasonable and appropriate
procedures ("Market Timing Procedures") designed to minimize any adverse impact
on other Fund investors due to excessive trading. The Company agrees to provide
the Fund or its designee with a copy of the Market Timing Procedures and such
certifications and representations regarding the Market Timing Procedures as the
Fund or its designee may reasonably request. The Company will promptly notify
the Fund in writing of any material change to the Market Timing Procedures. The
parties agree to cooperate in light of any conflict between the Market Timing
Procedures and actions taken or policies adopted by the Fund designed to
minimize any adverse impact on other Fund investors due to excessive trading.
2.18. The Fund and the Distributor make no representation as to whether any
aspect of the Fund's operations (including, but not limited to, fees and
expenses and investment policies) complies with the insurance laws or
regulations of the various states.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. At least annually, the Distributor shall provide the Company with as
many copies of the Fund's current prospectus as the Company may reasonably
request, with expenses to be borne in accordance with Schedule C hereof. If
requested by the Company in lieu thereof, the Distributor or Fund shall provide
such documentation (including an electronic version of the current prospectus)
and other assistance as is reasonably necessary in order for the Company once
each year (or more frequently if the prospectus for the Fund is amended) to have
the prospectus for the Contracts and the prospectus for the Fund printed
together in one document.
3.2. If applicable state or federal laws or regulations require that the
Statement of Additional Information ("SAI") for the Fund be distributed to all
Contract owners, then the Fund and/or the Distributor shall provide the Company
with copies of the Fund's SAI in such quantities, with expenses to be borne in
accordance with Schedule C hereof, as the Company may reasonably require to
permit timely distribution thereof to Contract owners. The Distributor and/or
the Fund shall also provide an SAI to any Contract owner or prospective owner
who requests such SAI from the Fund.
3.3. The Fund and/or the Distributor shall provide the Company with copies of
the Fund's proxy material, reports to shareholders and other communications to
shareholders in such quantity, with expenses to be borne in accordance with
Schedule C hereof, as the Company may reasonably require to permit timely
distribution thereof to Contract owners.
3.4. It is understood and agreed that, except with respect to information
regarding the Company provided in writing by that party specifically for use in
the prospectus or SAI of the Fund, the Company shall not be responsible for the
content of the prospectus or SAI for the Fund. It is also understood and agreed
that, except with respect to information regarding the Fund, the Distributor,
the Adviser or the Portfolios provided in writing or approved of in writing
by the Fund or the Distributor specifically for use therein, neither the Fund
nor the Distributor are responsible for the content of the prospectus or SAI for
the Contracts.
3.5. So long as and to the extent required by law the Company shall:
(a) solicit voting instructions from Contract owners;
(b) vote the Portfolio shares held in the Accounts in accordance with
instructions received from Contract owners;
(c) vote Portfolio shares held in the Accounts for which no
instructions have been received in the same proportion as Portfolio shares for
which instructions have been received from Contract owners, so long as and to
the extent that the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners; and
(d) vote Portfolio shares held in its general account or otherwise in
the same proportion as Portfolio shares for which instructions have been
received from Contract owners, so long as and to the extent that the SEC
continues to interpret the 1940 Act to require such voting by the insurance
company. The Company reserves the right to vote Fund shares in its own right, to
the extent permitted by law.
3.6. The Company shall be responsible for assuring that each of its
separate accounts holding shares of a Portfolio calculates voting privileges as
directed by the Fund and agreed to by the Company and the Fund. The Fund agrees
to promptly notify the Company of any changes of interpretations or amendments
of the Mixed and Shared Funding Exemptive Order.
3.7. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders. Further, the Fund will act in accordance with the SEC's
interpretation of the requirements of Section 16(a) with respect to periodic
elections of directors or trustees and with whatever rules the SEC may
promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, a copy of each piece of sales literature or other promotional
material that the Company develops or proposes to use and in which the Fund (or
a Portfolio thereof), the Adviser or the Distributor is named in connection with
the Contracts, at least five (5) Business Days prior to its use. No such
material shall be used if the Fund or its designee objects to such use within
five (5) Business Days after receipt of such material.
4.2. The Company shall not give any information or make any representations
or statements on behalf of or concerning the Fund, the Portfolios, the Adviser
or the Distributor in connection with the sale of the Contracts other than the
information or representations contained in the registration statement,
including the prospectus or SAI for the Fund, as the same may be amended or
supplemented from time to time, or in sales literature or other promotional
material approved or provided by the Fund or the Distributor, except with the
written permission of the Fund or the Distributor.
4.3. The Fund or the Distributor shall furnish, or shall cause to be
furnished, to the Company, a copy of each piece of sales literature or other
promotional material in which the Company and/or its separate account(s) is
named at least five (5) Business Days prior to its use. No such material shall
be used if the Company objects to such use within five (5) Business Days after
receipt of such material.
4.4. The Fund or the Distributor shall not give any information or make any
representations on behalf of the Company or concerning the Company, the
Accounts, or the Contracts other than the information or representations
contained in a registration statement, including the prospectus or SAI for the
Contracts, as the same may be amended or supplemented from time to time, or in
sales literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5. The Fund or its designees will provide to the Company at least one
complete copy of all registration statements, prospectuses, SAIs, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments and
supplements to any of the above, that relate to the Fund within a reasonable
period of time following the filing of such document(s) with the SEC or FINRA or
other regulatory authorities.
4.6. The Company will provide to the Fund or its designees at least one
complete copy of all registration statements, prospectuses, SAIs, reports,
solicitations for voting instructions, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments and supplements to any of the above, that relate to the Accounts with
respect to the Fund, within a reasonable period of time following the filing of
such document(s) with the SEC, FINRA, or other regulatory authority.
4.7. For purposes of Articles IV and VIII, the phrase "sales literature and
other promotional material" includes, but is not limited to, 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; e.g.,
on-line networks such as the Internet or other electronic media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, 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, and shareholder reports, and proxy
materials (including solicitations for voting instructions) and any other
material constituting sales literature or advertising under the FINRA rules, the
1933 Act or the 0000 Xxx.
4.8. At the request of any party to this Agreement, each other party will
make available to the other party's independent auditors and/or representatives
of the appropriate regulatory authorities, all records, data and access to
operating procedures that may be reasonably requested in connection with
compliance and regulatory requirements related to this Agreement or any party's
obligations under this Agreement.
ARTICLE V. Fees and Expenses
5.1. The Fund and the Distributor shall pay no fee or other compensation to
the
Company under this Agreement, and the Company shall pay no fee or other
compensation to the Fund or the Distributor under this Agreement; provided,
however, (a) the parties will bear their own expenses as reflected in Schedule C
and other provisions of this Agreement, and (b) the parties may enter into other
agreements relating to the Company's investment in the Fund, including services
agreements.
ARTICLE VI. Diversification and Qualification
6.1. The Fund and the Distributor represent and warrant that the Fund and
each Portfolio thereof will at all times comply with Section 817(h) of the Code
and Treasury Regulation ss.1.817-5, as amended from time to time, and any
Treasury interpretations thereof, relating to the diversification requirements
for variable annuity, endowment, or life insurance contracts and any amendments
or other modifications or successor provisions to such Section or Regulations.
The Fund or the Distributor shall, upon request, provide timely to the Company a
quarterly written diversification certification, in the form attached hereto as
Schedule D, as to whether each Portfolio complies with the diversification
requirements of Section 817(h) of the Code.
6.2. The Fund, the Distributor and the Adviser represent and warrant that
shares of the Portfolios will be sold only to Participating Insurance Companies
and their separate accounts and to Qualified Plans. No shares of any Portfolio
of the Fund will be sold to the general public.
6.3. The Fund, the Distributor and the Adviser represent and warrant that
prior to allowing an purchase of shares of the Fund, the status of each
purchaser, including any insurance company separate account or Qualified Plan,
is verified and documented.
6.4. The Fund, the Distributor or the Adviser will notify the Company
promptly upon having a reasonable basis for believing that at the end of a
calendar quarter the Fund or any Portfolio has ceased to comply with the
aforesaid Section 817(h) diversification requirements and such non-compliance
has not been cured during the applicable grace period set forth in Treasury
Regulation 1.817-5.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and
without in any way limiting or restricting any other remedies available to the
Company, the Distributor will pay all costs associated with or arising out of
any failure of the Fund or any Portfolio to comply with Sections 6.1 or 6.2
hereof, including all costs associated with reasonable and appropriate
corrections or responses to any such failure; such costs may include, but are
not limited to, the costs involved in creating, organizing, and registering a
new investment company as a funding medium for the Contracts and/or the costs of
obtaining whatever regulatory authorizations are required to substitute shares
of another investment company for those of the failed Portfolio (including, but
not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service ("IRS")
asserts in writing in connection with any governmental audit or review of the
Company (or, to the Company's knowledge, of any Contract owner) that any
Portfolio has failed to comply with the diversification requirements of Section
817(h) of the Code or the Company otherwise becomes aware of any facts that
could give rise to any claim against the Fund, the Distributor or the Adviser as
a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and
the Adviser of such assertion or potential claim; and
(b) The Company shall consult with the Fund, the Distributor and the
Adviser as to how to minimize any liability that may arise as a result of such
failure or alleged failure.
ARTICLE VII. Potential Conflicts and Compliance With Mixed and Shared Funding
Exemptive Order
7.1. As required by the conditions set forth in the notice related to the
Order, Company shall report any potential or existing conflicts promptly to the
Board. An irreconcilable material conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority; (b) a
change in applicable federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the
investments of any Portfolio is being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners or by contract owners of different Participating Insurance
Companies; or (f) a decision by a Participating Insurance Company to disregard
the voting instructions of Contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and the
implications thereof.
7.2. The Company will report any potential or existing material conflicts
of which it is aware to the Board. The Company will assist the Board in carrying
out its responsibilities under the Order, by providing the Board with all
information reasonably necessary for the Board to consider any issues raised.
This includes, but is not limited to, an obligation by the Company to inform the
Board whenever Contract owner voting instructions are to be disregarded. Such
responsibilities shall be carried out by the Company with a view only to the
interests of its existing Contract owners.
7.3. If it is determined by a majority of the Board, or a majority of its
directors who are not interested persons of the Fund, the Distributor, the
Adviser or any subadviser to any of the Portfolios, as defined in Section
2(a)(19) of the 1940 Act (the "Independent Directors"), that a material
irreconcilable conflict exists, and is relevant to the Company, the Company
shall, at its sole expense and to the extent reasonably practicable (as
determined by a majority of the Independent Directors), take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict, up to and
including: (1) withdrawing the assets allocable to some or all of the separate
accounts from the Fund or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another Portfolio,
or submitting the question whether such segregation should be implemented to a
vote of all affected Contract owners and, as appropriate, segregating the assets
of any appropriate group (i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the affected
contract owners the option of making such a change; and (2) establishing a new
registered management investment company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the Account's investment in
the Fund and terminate this Agreement; provided, however, that such withdrawal
and termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of the Independent
Directors. Any such withdrawal and termination must take place within six (6)
months after the Fund gives written notice that this provision is being
implemented, and until the end of that six-month period the Adviser, the
Distributor and the Fund shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
Account's investment in the Fund and terminate this Agreement within six (6)
months after the Board informs the Company in writing that it has determined
that such decision has created an irreconcilable material conflict; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the Independent Trustees. Until the end of the foregoing six-month
period, the Fund shall continue to accept and implement orders by the Company
for the purchase (and redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.5 of this Agreement, a majority
of the Independent Directors shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Fund be required to establish or bear the expense of a new funding medium
for the Contracts. The Company shall not be required by Section 7.3 to establish
a new funding medium for the Contracts if an offer to do so has been declined by
vote of a majority of Contract owners materially and adversely affected by the
irreconcilable material conflict. In the event that the Board determines that
any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Board informs the
Company in writing of the foregoing determination;
provided, however, that such withdrawal and termination shall be limited to the
extent required by any such material irreconcilable conflict as determined by a
majority of the Independent Trustees.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940
Act or the rules promulgated thereunder with respect to mixed or shared funding
(as defined in the Order) on terms and conditions materially different from
those contained in the Order, then (a) the Fund and/or the Participating
Insurance Companies, as appropriate, shall take such steps as may be necessary
to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to
the extent such rules are applicable; and (b) Sections 3.5, 3.6, 3.7, 7.1, 7.2,
7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the extent
that terms and conditions substantially identical to such Sections are contained
in such Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a) As limited by and in accordance with Section 8.1(b) and 8.1(c)
hereof, the Company agrees to indemnify and hold harmless the Fund and the
Distributor and each of their respective officers and directors or trustees
(collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, expenses, damages and liabilities (including
amounts paid in settlement with the written consent of the Company) or
litigation (including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, expenses, damages or
liabilities (or actions in respect thereof) or settlements are related to the
sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the
registration statement or prospectus or SAI covering the Contracts
or contained in the Contracts or sales literature or other
promotional material for the Contracts (or any amendment or
supplement to any of the foregoing), 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, provided that this
Agreement to indemnify shall not apply as to any Indemnified Party
if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished in writing to the Company or approved in
writing to the Company by or on behalf of the Distributor or Fund
for use in the registration statement or prospectus for the
Contracts or in the Contracts or sales literature or other
promotional material (or any amendment or supplement to any of the
foregoing) or otherwise for use in connection with the sale of the
Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus, SAI or sales literature or
other promotional material of the Fund not supplied by the Company
or persons under its control) or wrongful conduct of the Company
or persons under its control, with respect to the sale or
distribution of the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, SAI, or sales literature or other
promotional material of the Fund, or any amendment thereof or
supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, if such a statement
or omission was made in reliance upon information furnished in
writing to the Fund by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to provide
the services and furnish the materials under the terms of
this Agreement; or
(v) arise out of the Company's incorrect calculation and/or
incorrect or untimely reports of net purchase or redemption
orders; or
(vi) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Company, including without limitation
Section 2.13 and Section 6.5 hereof.
(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations or
duties under this Agreement or to any of the Indemnified Parties.
(c) The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision, except to the extent that the Company
has been prejudiced by such failure to give notice. In case any such action is
brought against the Indemnified Parties, the Company shall be entitled to
participate, at its own expense, in the defense of such action. The Company also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Company to such party of
the Company's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
the Company will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation. The Company shall not be liable under this indemnification
provision with respect to any claim, action, suit, or preceding settled by an
Indemnified Party without the Company's written approval.
(d) The Indemnified Parties will promptly notify the Company of the
commencement of any material litigation or proceedings against them in
connection with the issuance or sale of the Fund Shares or the Contracts or the
operation of the Fund.
8.2. Indemnification by the Distributor
(a) The Distributor agrees to indemnify and hold harmless the Company
and
its directors and officers (collectively, the "Indemnified Parties" for purposes
of this Section 8.2) against any and all losses, claims, expenses, damages,
liabilities (including amounts paid in settlement with the written consent of
the Distributor) or litigation (including reasonable legal and other expenses)
to which the Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or prospectus or SAI or sales literature or
other promotional material of the Fund prepared by the Fund or the
Distributor (or any amendment or supplement to any of the
foregoing), 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, provided that this Agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission or
such alleged statement or omission was made in reliance upon and
in conformity with information furnished in writing to the
Distributor or the Fund by or on behalf of the Company for use in
the registration statement, prospectus or SAI for the Fund or in
sales literature or other promotional material (or any amendment
or supplement to any of the foregoing) or otherwise for use in
connection with the sale of the Contracts or the Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus, SAI or sales literature or
other promotional material for the Contracts not supplied by the
Distributor or persons under its control) or wrongful conduct of
the Fund or the Distributor or persons under their control, with
respect to the sale or distribution of the Contracts or Fund
shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, SAI, or sales literature or other
promotional material covering the Contracts, or any amendment
thereof or supplement thereto, or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance
upon information furnished in writing to the Company by or on
behalf of the Distributor or the Fund specifically for use
therein; or
(iv) arise as a result of any failure by the Fund or the
Distributor to provide the services and furnish the materials
under the terms of this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply with the
diversification and other qualification requirements specified in
Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Fund or the Distributor
in this Agreement or arise out of or result from any other
material breach of this Agreement by the Distributor or the Fund
(including, without limitation, any material breach, whether
unintentional or in good faith or otherwise, of the
representations, warranties, or covenants set forth in Section
2.11 of this Agreement); or
(vi) arise out of or result from the incorrect or untimely
calculation or reporting by the Fund, the Distributor or the
Adviser of a Portfolio's daily NAV per share (subject to Section
1.10 of this Agreement) or dividend or capital gain distribution
rate.
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof. This indemnification is in addition to and apart from the
responsibilities and obligations of the Distributor specified in Article VI
hereof.
(b) The Distributors shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or gross negligence in
the performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations or duties under this
Agreement or to any of the Indemnified Parties.
(c) The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Distributor of
any such claim shall not relieve the Distributor from any liability which it may
have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision,
except to the extent that the Distributor has been prejudiced by such failure to
give notice. In case any such action is brought against the Indemnified Parties,
the Distributor will be entitled to participate, at its own expense, in the
defense thereof. The Distributor also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the action. After
notice from the Distributor to such party of the Distributor's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Distributor will not
be liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation. The Distributor shall not
be liable under this indemnification provision with respect to any claim,
action, suit, or preceding settled by an Indemnified Party without the
Distributor's written approval.
(d) The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Delaware,
without regard to the Delaware conflict of laws provisions.
9.2. This Agreement shall be subject to the provisions of the 1933 Act, the
1934 Act and the 1940 Act, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to, the Order) and the terms hereof shall
be interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall terminate:
(a) at the option of any party, with or without cause, with respect to
some or all Portfolios, upon sixty (60) days' advance written notice delivered
to the other parties; or
(b) at the option of the Company by written notice to the other
parties with respect to any Portfolio based upon the Company's determination
that shares of such Portfolio are not reasonably available to meet the
requirements of the Contracts; or
(c) at the option of the Company by written notice to the other
parties with respect to any Portfolio in the event any of the Portfolio's shares
are not registered, issued or sold in accordance with applicable state and/or
federal law or such law precludes the use of such Portfolio as the underlying
investment option of the Contracts issued or to be issued by the Company; or
(d) at the option of the Fund or the Distributor in the event that
formal administrative proceedings are instituted against the Company by FINRA,
the SEC, the insurance commissioner or comparable official of any state or any
other regulatory body regarding the Company's duties under this Agreement or
related to the sale of the Contracts, the operation of any Account, or the
purchase of the Fund shares, if, in each case, the Fund or the Distributor, as
the case may be, reasonably determines in its sole judgment exercised in good
faith, that any such administrative proceedings will have a material adverse
effect upon the ability of the Company to perform its obligations under this
Agreement; or
(e) at the option of the Company in the event that formal
administrative proceedings are instituted against the Fund or the Distributor by
FINRA, the SEC, or any state securities or insurance department or any other
regulatory body, if the Company reasonably determines in its sole judgment
exercised in good faith, that any such administrative proceedings will have a
material adverse effect upon the ability of the Fund or the Distributor to
perform their obligations under this Agreement; or
(f) at the option of the Company by written notice to the Fund with
respect to any Portfolio if the Company reasonably believes that the Portfolio
will fail to meet the diversification requirements of Section 817(h) of the Code
specified in Article VI hereof; or
(g) at the option of any non-defaulting party hereto in the event of a
material breach of this Agreement by any party hereto (the "defaulting party")
other than as described in Section 10.1(b)-(f); provided, that the
non-defaulting party gives written notice thereof to the defaulting party, with
copies of such notice to all other non-defaulting parties, and if such breach
shall not have been remedied within thirty (30) days after such written notice
is given, then the non-defaulting party giving such written notice may terminate
this Agreement by giving thirty (30) days written notice of termination to the
defaulting party; or
(h) at any time upon written agreement of all parties to this
Agreement.
10.2. Notice Requirement
No termination of this Agreement shall be effective unless and until the
party terminating this Agreement gives prior written notice to all other parties
of its intent to terminate, which notice shall set forth the basis for the
termination. Furthermore,
(a) in the event any termination is based upon the provisions of
Article VII, or the provisions of Section 10.1(a) of this Agreement, the prior
written notice shall be given in advance of the effective date of termination as
required by those provisions unless such notice period is shortened by mutual
written agreement of the parties;
(b) in the event any termination is based upon the provisions of
Section 10.1(d) or 10.1(e) of this Agreement, the prior written notice shall be
given at least sixty (60) days before the effective date of termination; and
(c) in the event any termination is based upon the provisions of
Section 10.1(b), 10.1(c), 10.1(f) or 10.1(g), the prior written notice shall be
given in advance of the effective date of termination, which date shall be
determined by the party sending the notice.
10.3. Effect of Termination
Notwithstanding any termination of this Agreement, other than as a result
of a failure by either the Fund or the Company to meet the diversification
requirements of Section 817(h) of the
Code, the Fund or the Distributor shall, at the option of the Company, continue
to make available additional shares of the Fund pursuant to the terms and
conditions of this Agreement, for all Contracts in effect on the effective date
of termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, the owners of the Existing
Contracts shall be permitted to reallocate investments in the Fund, redeem
investments in the Fund and/or invest in the Fund upon the making of additional
purchase payments under the Existing Contracts and the provisions of this
Agreement shall remain in effect. The parties agree that this Section 10.3 shall
not apply to any terminations under Article VII of this Agreement and the effect
of such Article VII terminations shall be governed by Article VII of this
Agreement.
10.4. Surviving Provisions
Notwithstanding any termination of this Agreement, each party's obligations
under Article VIII of this Agreement to indemnify other parties shall survive
and not be affected by any termination of this Agreement. In addition, with
respect to Existing Contracts, all provisions of this Agreement shall also
survive and not be affected by any termination of this Agreement.
ARTICLE XI. Notices
11.1. Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other parties.
If to the Company:
AXA Equitable Life Insurance Company
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Funds Management Group
If to the Fund:
Lazard Retirement Series, Inc.
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
If to the Distributor:
Lazard Asset Management Securities LLC
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
ARTICLE XII. Miscellaneous
12.1. Except as required by law, subpoena, court order or regulatory order
or request, or as necessary to fulfill an obligation under this Agreement, each
party hereto shall treat as confidential the names and addresses of the owners
of the Contracts and all information reasonably identified as confidential in
writing by any other party hereto and, except as permitted by this Agreement,
shall not disclose, disseminate or utilize such names and addresses and other
confidential information without the express written consent of the affected
party until such time as such information may come into the public domain.
12.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.4. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
12.5. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
FINRA and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions
contemplated hereby.
12.6. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires some other
forum, then such other forum) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
12.7. 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, which the parties hereto are entitled to under state and
federal laws.
12.8. This Agreement or any of the rights and obligations hereunder may not
be assigned by any party without the prior written consent of all parties
hereto; provided, however, that a transaction that does not result in a change
of actual control or management of a party hereto shall not be deemed to be an
assignment of this Agreement for purposes of this Section 12.8. Any assignment
of this Agreement in violation of this Section 12.8 shall be void.
12.9. The Company agrees that the obligations assumed by the Fund or the
Distributor pursuant to this Agreement shall be limited in any case to the Fund
or Distributor and their respective assets and the Company shall not seek
satisfaction of any such obligation from the shareholders of the Fund,
Distributor, the Directors, officers, employees or agents of the Fund,
Distributor, or any of them.
12.10. The Fund and the Distributor agree that the obligations assumed by
the Company pursuant to this Agreement shall be limited in any case to the
Company and its assets and neither the Fund nor the Distributor shall seek
satisfaction of any such obligation from the shareholders of the Company, the
directors, officers, employees or agents of the Company, or any of them.
12.11. No provision of this Agreement may be deemed or construed to modify
or supersede any contractual rights, duties, or indemnifications, as between the
Distributor and the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the date specified below.
AXA EQUTIABLE LIFE INSURANCE COMPANY, ON BEHALF OF CERTAIN
SEPARATE ACCOUNTS
By its authorized officer,
By:
Title: Senior Vice President
LAZARD RETIREMENT SERIES, INC.
By its authorized officer,
By:
Title:
LAZARD ASSET MANAGEMENT SECURITIES LLC
By its authorized officer,
By:__________________________
Title:
SCHEDULE A
CONTRACTS
AXA Equitable Separate Account 65 - All Contracts
AXA Equitable Separate Account 49 - All Contracts
SCHEDULE B
PORTFOLIOS
All portfolios and classes of Lazard Retirement Series, Inc.
SCHEDULE C
EXPENSES
The Fund and/or the Distributor and the Company will coordinate the functions
and pay the costs of the completing these functions based upon an allocation of
costs in the tables below. Costs shall be allocated to reflect the Fund's share
of the total costs determined according to the number of pages of the Fund's
respective portions of the documents.
------------------------------------------------------------------------------------------------------------------------------
ITEM FUNCTION PARTY RESPONSIBLE FOR PARTY RESPONSIBLE FOR
COORDINATION EXPENSE
------------------------------------------------------------------------------------------------------------------------------
Mutual Fund Prospectus Printing of prospectuses Company Inforce - Fund
Prospective - Company
------------------------------------------------------------------------------------------------------------------------------
Distribution (including Company Fund
postage) to Inforce
Clients
------------------------------------------------------------------------------------------------------------------------------
Distribution (including Company Company
postage) to Prospective
Clients
------------------------------------------------------------------------------------------------------------------------------
Mutual Fund Prospectus If Required by Fund or Fund or Distributor Fund or Distributor
Update & Distribution Distributor
------------------------------------------------------------------------------------------------------------------------------
If Required by Company Company (Fund or Company
Distributor to provide
Company with document in
PDF format)
------------------------------------------------------------------------------------------------------------------------------
Mutual Fund SAI Printing Fund or Distributor Fund or Distributor
------------------------------------------------------------------------------------------------------------------------------
Distribution (including Party who receives the Party who receives the
postage) request request
------------------------------------------------------------------------------------------------------------------------------
Proxy Material for Mutual Printing of proxy Fund or Distributor Fund or Distributor
Fund required by Law
------------------------------------------------------------------------------------------------------------------------------
Distribution (including Company Fund or Distributor
labor) of proxy required
by Law
------------------------------------------------------------------------------------------------------------------------------
Mutual Fund Annual & Printing of reports Fund or Distributor Fund or Distributor
Semi-Annual Report
------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
Distribution Company Fund or Distributor
--------------------------------------------------------------------------------------------------------------------------
Other communication to New If Required by Law, the Company Distributor
and Prospective clients Fund or Distributor
--------------------------------------------------------------------------------------------------------------------------
If Required by Company Company Company
--------------------------------------------------------------------------------------------------------------------------
Other communication to Distribution (including Company Fund or Distributor
inforce labor and printing) if
required by the Fund or
Distributor
--------------------------------------------------------------------------------------------------------------------------
Distribution (including Company Company
labor and printing) if
required by Company
--------------------------------------------------------------------------------------------------------------------------
SCHEDULE D
Diversification Compliance Certification
----------------------------------------
Name of Portfolio: FUND
--------------------------------------------------------------------------------
CERTIFICATION
Fund was in compliance with the federal tax rules relating to diversification
requirements under Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1.817-5, for the quarter ending [Insert most recently ended fiscal
quarter].
-------------------------------------------------- -------------------------
Signed by Date
--------------------------------------------------------------------------------
