Exhibit 99.(m)(2)
LAZARD RETIREMENT SERIES, INC.
DISTRIBUTION AND SERVICING PLAN AGREEMENT
Lazard Freres & Co. LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We wish to enter into this Agreement with you for advertising, marketing and
distribution assistance and/or certain other services with respect to shares
(the "Shares") of the series of Lazard Retirement Series, Inc. (the "Fund") set
forth on Schedule A attached hereto, as such Schedule may be revised from time
to time (each, a "Portfolio"), of which you are the principal underwriter as
defined in the Investment Company Act of 1940, as amended (the "1940 Act"). We
also are parties to a Fund Participation Agreement of even date herewith (the
"Participation Agreement") among you, the Fund, us and the Insurance Company (as
defined therein).
The terms and conditions of this Agreement are as follows:
1. PROVISION OF SERVICES. We agree to provide reasonable assistance in
connection with the sale of the Shares and/or to provide personal services and
account maintenance services for the benefit of owners ("Contractholders") of
variable annuity or variable life insurance contracts (together, "Contracts")
issued by Insurance Company through its separate accounts that invest in a
Portfolio and are named on Schedule A, as it may be amended from time to time
("Separate Accounts"). Such services shall include those specified on Schedule B
attached hereto.
2. LIMITED AGENCY; OPERATIONAL PROCEDURES. You hereby appoint us as the Fund's
agent for the limited purpose of receiving Contractholders' purchase and
redemption orders for Shares in accordance with the Participation Agreement.
Other than as specifically provided herein, nothing in this Agreement shall be
construed to establish a joint venture between us or establish either of us as
an agent, partner or employee of the other, nor shall anything in this Agreement
be construed to establish us or the Fund as an agent, partner or employee of the
other.
3. OFFERING OF SHARES. In no way shall the provisions of this Agreement limit
your or the Fund's authority and discretion to take such action as you or it may
deem appropriate or advisable, without notice, in connection with all matters
relating to the operation of the Fund or any Portfolio and the sale of Shares,
including the right to suspend sales or withdraw the offering of Shares of one
or more Portfolios.
4. ADVERTISING MATERIALS AND SALES LITERATURE; FUND DOCUMENTATION.
(a) We agree that sales literature and other promotional material in which
you, the Fund, Lazard Asset Management or the Fund's adviser or administrator is
named shall be approved as provided in the Participation Agreement. We
understand that any supplemental sales literature, if distributed, must be
preceded or accompanied by the relevant Portfolio's then-current prospectus.
Advertising material and
sales literature provided by you that are designated as being for broker-dealer
use only may not be disseminated to the public.
(b) We understand that the Fund's board will review, at least quarterly, a
written report of the amounts expended pursuant to this Agreement and the
purposes for which such expenditures were made. In connection with such reviews,
we will furnish you or your designees with such information or reports as you or
they may reasonably request, which reports shall be accurate and complete.
(c) Each party will provide the other party with such information or
documentation necessary for the other party to fulfill its obligations hereunder
and such other information or documentation as each party may reasonably
request, and each party is entitled to rely on any written records or
instructions provided to it by the other party.
5. FEES. In consideration of the services described herein, we shall be entitled
to receive from you fees at the annual rate set forth opposite each Portfolio's
name on Schedule A, payable monthly based on the average daily net asset value
of Contractholders' Shares held during the relevant month (computed in the
manner specified in the Fund's charter documents and in the relevant Portfolio's
then-current prospectus and/or statement of additional information, as amended
or supplemented). We understand that any payments pursuant to this Agreement
shall be paid only so long as this Agreement, the Fund's plan adopted pursuant
to Rule 12b-1 under the 1940 Act (the "Plan") and the Participation Agreement
are in effect. Our acceptance of any fees for such services shall constitute our
representation (which shall survive any payment of such fees and any termination
of this Agreement and shall be reaffirmed at each acceptance) that our receipt
of such fees is lawful.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS. The following representations,
warranties and covenants are in addition to those made elsewhere in this
Agreement.
(a) Each party hereto hereby represents, warrants and covenants, as
applicable, to the other party that:
(i) it has full power and authority under applicable law, and has taken
all necessary actions, to enter into and perform this Agreement; the
person executing this Agreement on its behalf is duly authorized and
empowered to execute and deliver this Agreement; and this Agreement
constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms;
(ii) no consent or authorization of, filing with, or other act by or in
respect of any governmental authority is required in connection with
the execution, delivery, performance, validity or enforceability of
this Agreement; and
(iii) the execution, performance and delivery of this Agreement by it will
not violate any of its contractual obligations or any applicable laws,
rules and regulations and will comply with all laws, rules and
regulations of governmental authorities and regulatory agencies
applicable to it by virtue of entering into and performing this
Agreement.
(b) We hereby represent, warrant and covenant to you, as applicable, that:
(i) we will not be a "fiduciary" with respect to the performance of this
Agreement for any Plan, as such term is defined in Section 3(21) of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code");
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(ii) our receipt of fees under and the performance of the services
specified in this Agreement will not constitute a non-exempt
"prohibited transaction" as such term is defined in Section 406 of
ERISA and Section 4975 of the Code; and
(iii) the services which we agree to render under this Agreement are not
services for which we or Insurance Company deduct fees and charges
under the Contracts or for which we are paid compensation pursuant to
another arrangement.
7. INDEMNIFICATION. Each party hereto agrees to be bound by the provisions of
Article IX, Indemnification of the Participation Agreement with respect to such
party's acts or omissions arising out of this Agreement as if this Agreement
were incorporated by reference into the Participation Agreement and fully a part
thereof.
8. NON-EXCLUSIVITY. You and we acknowledge and agree that this Agreement and
the arrangements described herein are intended to be non-exclusive and that
each of us may enter into similar agreements and arrangements with other
entities.
9. TERM.
(a) We acknowledge that this Agreement shall become effective as of the date
indicated by you below and, as to each Portfolio, this Agreement: (i) shall
continue until the last day of the calendar year of execution and thereafter
shall continue automatically for successive annual periods ending on the last
day of each calendar year, provided such continuance is approved at least
annually by a vote of a majority of the Fund's Board and the Board members who
are not "interested persons" (as defined in the 0000 Xxx) of the Fund and have
no direct or indirect financial interest in the operation of the Plan or any
agreement related to the Plan ("Independent Board Members"), cast in person at a
meeting called for the purpose of voting on such approval; (ii) is terminable
without penalty, at any time, by vote of a majority of the Independent Board
Members; (iii) is terminable on not more than 60 days' written notice by vote of
holders of a majority of the Portfolio's outstanding voting securities (as
defined in the 1940 Act); (iv) is terminable upon 15 days' notice by you; and
(v) will terminate automatically in the event of its assignment (as defined in
the 1940 Act).
(b) You shall have the right to terminate this Agreement, without prior
notice, if: (i) we or any of our registered principals become the subject of any
investigation or disciplinary action by any governmental, regulatory or judicial
authority that has resulted, or for which it appears reasonably likely will
result, in the loss or suspension of any required registration, membership or
license; (ii) our ability to perform our obligations under this Agreement has
become or is reasonably likely to become impaired; (iii) we otherwise breach any
of the representations, warranties or covenants set forth in this Agreement;
(iv) we fail to perform the services contemplated by this Agreement; or (v) the
Plan is terminated by the Fund's Board, or the Plan, or any part thereof, is
found invalid or is ordered terminated by any regulatory or judicial authority.
10. COMPLETE AGREEMENT; AMENDMENT.
(a) This Agreement, the Schedules hereto (which are incorporated by
reference) and the Participation Agreement contain the full and complete
understanding between the parties with respect to the matters covered and
contemplated hereunder and supersede all prior agreements or understandings
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between the parties relating to the subject matter hereof, whether oral or
written, express or implied. In the event of a conflict between the
Participation Agreement and this Agreement, this Agreement shall control.
(b) No modification or waiver of any provisions of this Agreement will be
binding unless in writing and executed by the party to be bound thereby, except
that, notwithstanding anything in this Agreement to the contrary, our placement
of an order to purchase Shares subsequent to our receipt of written notice of
amendment of Schedule A by you shall constitute our agreement to the amendment.
11. NOTICES. All communications to you shall be sent to you at the address set
forth above, attention: Lazard Asset Management, Director, Legal Affairs. Any
notice to us shall be duly given if delivered (via hand delivery, commercial
courier service or certified mail) or sent by confirmed facsimile to us at the
address or number set forth below.
12. GOVERNING LAW. This Agreement shall be construed in accordance with the laws
of the State of New York, without giving effect to conflict of laws principles.
13. SURVIVAL. The provisions of sections 7 and 13 (and any other provisions
expressly stating their survival) will survive the termination of the Agreement.
Very truly yours,
[COUNTERPARTY NAME
COUNTERPARTY ADDRESS
FAX NO.]
Date: By:
-------------------------------- -----------------------------------
Name:
Title:
PLEASE RETURN TWO SIGNED COPIES OF THIS AGREEMENT TO LAZARD FRERES & CO. LLC.
UPON ACCEPTANCE, ONE COUNTERSIGNED COPY WILL BE RETURNED FOR YOUR FILES.
Accepted:
LAZARD FRERES & CO. LLC
Date: By:
-------------------------------- -----------------------------------
Name:
Title:
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SCHEDULE A
NAME OF PORTFOLIO ANNUAL PERCENTAGE RATE
%
SEPARATE ACCOUNTS AND CONTRACTS
SCHEDULE B
DISTRIBUTION AND SERVICING
We shall be responsible for:
1. providing distribution, advertising and marketing assistance to promote
Shares to Contractholders and prospective Contractholders in accordance
with this Agreement;
2. answering Contractholder and prospective Contractholder inquiries about the
Portfolios;
3. training Contractholder relationship personnel and sales agents;
4. establishing any appropriate information interfaces, which may include
websites and internal systems relating to the sale of Shares;
5. providing Contractholders with statements and/or reports showing Share
transactions, Portfolio performance and tax and other account information
relating to the Shares and, if appropriate, aggregating such statements or
reports with other transactions and information in Contractholders' other
accounts with us;
6. providing portfolio manager commentaries to Contractholders and other
interested parties;
7. making our employees and agents available during normal business hours to
consult with you or your designees concerning the performance of our
responsibilities under this Agreement;
8. providing such other information and services as you may reasonably
request, to the extent we are permitted by applicable statute, rule or
regulation; and
9. maintaining all other records as required by law.
