Exhibit 99.(m)(2)
THE LAZARD FUNDS, INC.
SERVICING 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 distribution and/or certain
other services with respect to shares (the "Shares") of the series of The Lazard
Funds, Inc. (the "Fund") set forth on Schedule A attached hereto, as such
Schedule may be revised from time to time (each, a "Series"), of which you are
the principal underwriter as defined in the Investment Company Act of 1940, as
amended (the "1940 Act").
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 shareholder and
administrative services for our clients who own Shares ("Clients") through
accounts in the Series (as specified on Schedule B attached hereto; each, an
"Account"). Such services are as specified on Schedule C attached hereto.
2. LIMITED AGENCY; OPERATIONAL PROCEDURES. You hereby appoint us as the
Fund's agent for the limited purpose of accepting Clients' purchase and
redemption orders for Shares. Client orders for the purchase or redemption of
Shares through the Accounts shall be processed in accordance with the Operating
Procedures specified on Schedule D attached hereto. 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 Series and the sale of
Shares, including the right to suspend sales or withdraw the offering of Shares
of one or more Series. You will advise us of any U.S. states and other U.S.
jurisdictions where the Shares are not qualified for sale.
4. ADVERTISING MATERIALS AND SALES LITERATURE; FUND DOCUMENTATION.
(a) We agree that neither we nor any of our employees or agents are
authorized to make any statement or representation concerning the Shares except
those contained (i) in the relevant Series' then-current prospectus and/or
statement of additional information, as amended or supplemented (collectively,
the "Prospectus"), copies of which will be supplied by you to us, or (ii) in
such advertising material or sales literature as may be supplied by you or
authorized by you in writing. We understand that any supplemental sales
literature, if distributed, must be preceded or accompanied by the relevant
Series' 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) You shall, as applicable, provide us upon request reasonably
sufficient copies, at a single address, of: Prospectuses, proxy or information
statements, shareholder reports and any other materials required to be delivered
to record holders of Shares (collectively, "Fund Documentation"). Neither you
nor the Fund shall be responsible for the cost of distributing such materials to
Clients.
(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 and frequency set forth on
Schedule A, paid based on the average daily net asset value of Clients' Shares
held during relevant period (computed in the manner specified in the Fund's
charter documents and Prospectus). 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) You hereby represent and warrant to us that:
(i) you are duly registered as a broker-dealer pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
and
(ii) the Fund is registered as an investment company under the
1940 Act and the Shares are registered under the Securities Act of
1933, as amended.
(c) We hereby represent, warrant and covenant to you, as applicable,
that:
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(i) if we are not registered as a broker-dealer pursuant to the
Exchange Act, we are not required to be so registered in order to
perform the services specified in this Agreement;
(ii) if we are not registered as a transfer agent pursuant to
the Exchange Act, we are not required to be so registered in order
to perform the services specified in this Agreement;
(iii) if we are required to be a member of the National
Association of Securities Dealers, Inc. (the "NASD"), we are a
member in good standing and will comply with the NASD's Conduct
Rules, including any requirements as to suitability of Shares for
Clients;
(iv) 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");
(v) 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;
(vi) we have full authority to act on behalf of Clients in the
manner contemplated by this Agreement, and each time we so act we
shall be deemed to have restated this representation and warranty;
and
(vii) we will maintain insurance coverage issued by a qualified
insurance carrier appropriate in light of our duties under this
Agreement.
7. CLIENT INFORMATION.
(a) Each party agrees that it will comply with all applicable laws and
regulations relating to consumer privacy ("Privacy Law") and that it is
prohibited from using or disclosing any nonpublic personal information (as
defined in Regulation S-P, or any similar term or terms as defined in other
applicable Privacy Law, "Client Information") received from the other party
other than (i) as required by law, regulation or rule; (ii) as permitted in
writing by the disclosing party; (iii) to its affiliates; or (iv) as necessary
to perform this Agreement or to service Clients, in each case in compliance with
the reuse and redisclosure provisions of Privacy Law. Each party shall use its
best efforts to (A) cause its employees and agents to be informed of and to
agree to be bound by Privacy Law and the provisions of this Agreement and (B)
maintain physical, electronic and procedural safeguards reasonably designed to
protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of, Client Information.
(b) We will comply with any applicable Office of Foreign Asset Control
laws, regulations, guidance documents, and blocking and notification
requirements by adopting adequate compliance policies, procedures and internal
controls with respect to Client investments in the Series;
(c) We will comply with applicable money laundering and currency
transaction reporting laws, regulations and government guidance, including
suspicious activity reporting and recordkeeping requirements and with any "money
laundering" guidelines as may be provided by you or agreed between the parties.
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8. INDEMNIFICATION; ADJUSTMENTS.
(a) You shall release, indemnify and hold harmless us and each of our
affiliates, trustees, directors, members, officers, employees and agents from
and against any and all losses, claims, damages, demands, actions, liabilities,
costs and expenses (including reasonable attorneys' fees) ("Losses") arising out
of or attributable to (i) any material misstatements in or omissions of material
facts from any Prospectus, periodic report, or proxy statement of the Fund or
any advertising material or sales literature supplied by you or the Fund or (ii)
any breach by you of any representation, warranty or covenant made by you in
this Agreement.
(b) We shall release, indemnify and hold harmless you and the Fund and
each of your or the Fund's affiliates, directors, members, officers, employees
and agents (the "Lazard Indemnitees") from and against any and all Losses
arising out of or attributable to (i) our bad faith, negligence or willful
misconduct in the performance of our duties and obligations under this
Agreement; (ii) any breach by us of any representation, warranty or covenant
made by us in this Agreement; (iii) any statement or representation that we or
our agents or employees make concerning the Fund that is inconsistent with the
Prospectus or advertising material or sales literature supplied by you or
authorized by you in writing; and (iv) any sale of the Shares outside of the
U.S. or in any U.S. state or other U.S. jurisdiction where you have indicated to
us that the Shares were not properly qualified for sale.
(c) We agree not to seek a net asset value per Share of a Series as of
a time other than the next calculated net asset value per Share following our
receipt of a Client order ("As of Trade") or to cancel or change a previously
placed Account order without the prior approval of the Fund. We acknowledge that
the Fund shall have complete and sole discretion as to whether or not to accept
an As of Trade or to make a cancellation or change. If an As of Trade is
authorized by the Fund to be processed as of a particular Business Day (as
defined in Schedule D), we hereby warrant that such trade relates only to Client
orders received by us by the Close of Trading (as defined in Schedule D) on that
Business Day.
(d) In the event that we (i) with approval of the Fund, place an As of
Trade other than to correct your or the Fund's error, (ii) place or adjust
trades after the latest time for the placement of orders through the Fund/SERV
service of the National Securities Clearing Corporation (the "NSCC") or, for
manual transactions, the Order Deadline (as defined in Schedule D), or (iii)
fail to settle trades in the manner described on Schedule D, we do hereby
release, indemnify and hold harmless the Lazard Indemnitees from and against any
and all Losses any of them may incur which arise out of or are attributable to
such actions.
(e) We understand that, in accordance with established Fund procedures
for correction of errors in the computation of the net asset value of Shares,
the Fund or its agent will make adjustments to the number of Shares owned in the
Accounts and distribute underpayments to us for credit to the Accounts. If we,
on behalf of Clients, receive amounts in excess of the amounts to which we
otherwise would have been entitled in the absence of any error in the
computation of the net asset value of Shares or otherwise as a result of an
error of the Fund or its agent, we will use best efforts to collect such amounts
from Clients. If, after such efforts, we are not able to recover all of such
overpayment, we will cooperate with your or the Fund's attempt to recover any
portion of the overpayment, including providing you or the Fund with information
reasonably available to us as to the identity of the Client(s) from whom the
remainder has not been recovered.
(f) In no event shall either party be liable for special,
consequential or incidental damages.
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9. 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.
10. TERM.
(a) We acknowledge that this Agreement shall become effective as of
the date indicated by you below. We understand that if our compensation is
subject (as indicated on Schedule A) to the Fund's plan adopted pursuant to Rule
12b-1 under the 1940 Act (the "12b-1 Plan"), as to each Series, 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 12b-1 Plan
or any agreement related to the 12b-1 Plan ("Independent Board Members"), cast
in person 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 Series' 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). If our compensation is not subject to a 12b-1 Plan, either party may
terminate this Agreement on 15 days' notice to the other party.
(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
12b-1 Plan is terminated by the Fund's Board, or the 12b-1 Plan, or any part
thereof, is found invalid or is ordered terminated by any regulatory or judicial
authority.
11. COMPLETE AGREEMENT; AMENDMENT.
(a) This Agreement and the Schedules hereto (which are incorporated by
reference) 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 between the parties relating to the subject
matter hereof, whether oral or written, express or implied.
(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.
12. 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.
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13. 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.
14. SURVIVAL. The provisions of sections 7, 8 and 14 (and any other
provisions expressly stating their survival) will survive the termination of the
Agreement.
Very truly yours,
-------------------------------------------
Name:
Title:
[COUNTERPARTY NAME
COUNTERPARTY ADDRESS
FAX NO.]
Date: By:
----------------------------- ----------------------------------------
Authorized Signature
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
OPEN SHARES
Annual
Percentage Rate
Name of Series Cusip (Paid Monthly)*
-------------- ----- ----------------
Xxxxxx Xxxx Xxxxxxxxx 00000X000 0.25%
Lazard Emerging Markets Portfolio 00000X000 0.25%
Lazard Equity Portfolio 00000X000 0.25%
Lazard High Yield Portfolio 00000X000 0.25%
Lazard International Equity Portfolio 00000X000 0.25%
Lazard International Equity Select Portfolio 52106N647 0.25%
Lazard International Fixed-Income Portfolio 00000X000 0.25%
Lazard International Small Cap Portfolio 00000X000 0.25%
Lazard Mid Cap Portfolio 00000X000 0.25%
Lazard Small Cap Portfolio 00000X000 0.25%
Lazard Strategic Yield Portfolio 00000X000 0.25%
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* Payment is subject to continued effectiveness of the 12b-1 Plan. 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.
INSTITUTIONAL SHARES
Annual
Percentage Rate
Name of Series * Cusip (Paid Quarterly)
-------------- ----- ----------------
Xxxxxx Xxxx Xxxxxxxxx 00000X000 %
Lazard Emerging Markets Portfolio 52106N899
Lazard Equity Portfolio 00000X000
Xxxxxx Xxxx Xxxxx Xxxxxxxxx 00000X000
Lazard International Equity Portfolio 00000X000
Lazard International Equity Select Portfolio 00000X000
Lazard International Fixed-Income Portfolio 00000X000
Lazard International Small Cap Portfolio 00000X000
Lazard Mid Cap Portfolio 00000X000
Lazard Mortgage Portfolio 00000X000
Lazard Small Cap Portfolio 00000X000
Lazard Strategic Yield Portfolio 00000X000
SCHEDULE B
OMNIBUS ACCOUNTS
o We will maintain sub-accounts for each Client through one or more omnibus
or master Accounts in each Series.
o We will perform all sub-accounting for Clients investing in Shares
through the Accounts.
o We will be responsible for all administration and maintenance of our
Clients' investments in Shares through the Accounts.
o We will provide to you, by the tenth day of each calendar quarter, (a) a
report which indicates the number of Clients holding Shares of a Series
through each Account as of the last day of the prior month and (b) such
other information as you or your designee may reasonably request.
SCHEDULE B
NETWORKING
o Each party (a) represents that it has executed the NSCC's standard
Networking Agreement (the "Networking Agreement") and (b) agrees to
perform all duties assigned to it by the NSCC and to conduct its
activities in accordance with the rules, regulations, policies and
procedures of the NSCC, as applicable.
o The terms of the Networking Agreement shall be incorporated by reference
herein. The term "Firm" as used in the Networking Agreement shall refer
to us, and the term "Fund Agent" as used in the Networking Agreement
shall refer to you.
o Each party agrees that its responsibilities with respect to accounts
maintained through Networking shall be allocated in accordance with the
Matrix Level agreed between the parties.
SCHEDULE C
SERVICES
We shall be responsible for the following, unless an item is the responsibility
of you or the Fund pursuant to the relevant Matrix Level for Accounts maintained
through Networking:
1. establishing and maintaining the Accounts;
2. accepting orders for the purchase and redemption of Shares and
transmitting such orders to you;
3. tracking, collecting from Clients and remitting to you any applicable
redemption fee to be deducted from Clients' Share redemption proceeds in
accordance with the Prospectus;
4. disbursing dividends and distributions to Clients and/or arranging for
reinvestment in Shares;
5. delivering Fund Documentation to Clients and prospective Clients as
required by applicable law;
6. providing Clients with a schedule of services and any fees that we may
charge Clients directly for such services;
7. maintaining a record of each Client's name, address (including zip code)
and taxpayer identification number; the time, date and price for all
Share transactions; and the number of Shares held by such Client;
8. preparing, filing and transmitting all federal, state and local
government returns and reports as required by law;
9. providing the Fund or its designee with Account registration and other
information and updates to such information, including addresses, tax
identification numbers, tax withholding information and the selection of
Account options and privileges (registration information must be received
prior to any trade activity and the Fund may reject any form of pending
registration);
10. monitoring and maintaining Client accounts, including verifying account
information and documentation and delivering confirmations in compliance
with Rule 10b-10 under the Exchange Act;
11. as required by law, preparing and transmitting to Clients periodic
account statements showing, among other appropriate information, the
total number of Shares owned and the net asset value of Shares as of the
statement closing date, purchases and redemptions of Shares during the
period and other distributions during the statement period (whether paid
in cash or reinvested);
12. making our employees available during normal business hours to consult
with you or your designees concerning the performance of our
responsibilities under this Agreement; and
13. maintaining all other records as required by law.
We also shall perform some or all of the following services:
1. marketing, advertising and distributing Shares in accordance with this
Agreement;
2. answering Client inquiries about the Fund;
3. assisting Clients in changing dividend options and other account
designations and addresses;
4. integrating Client statements with those of other transactions and
balances in Clients' other accounts serviced by us;
5. arranging for bank wires; and
6. providing such other information and services as the Fund reasonably may
request, to the extent we are permitted by applicable law, rule or
regulation.
SCHEDULE D
OPERATING PROCEDURES
GENERAL
o Orders that we have received from Clients by the close of regular trading
(the "Close of Trading") on the New York Stock Exchange (the "NYSE")
(usually 4:00 p.m., Eastern time) on each day on which a Series
calculates its net asset value (as described in the Prospectus, a
"Business Day") shall be treated by you and us as though received on that
Business Day. Orders that we have received after the Close of Trading
shall be treated by you and us as though received on the next Business
Day. All orders are subject to acceptance or rejection in the sole
discretion of you and/or the Fund or its agent, and orders shall be
effective only upon receipt in proper form. Each communication of orders
by us shall constitute a representation by us that such orders are
accurate and complete and were received by us by the Close of Trading on
the NYSE on the Business Day for which the order is to be priced.
o You will use commercially reasonable efforts to make available to us each
Series' net asset value per share on each Business Day as soon as
reasonable practicable after calculation--usually 6:30 p.m., Eastern
time.
o The Fund or its agent will furnish notice of the declaration of any
dividends or distributions payable by the Fund's Series. This information
will include the record and payable dates.
o Dividends and distributions will be automatically reinvested at net asset
value in accordance with the Prospectus unless otherwise instructed by
us.
FOR TRANSACTIONS THROUGH THE NSCC'S FUND/SERV SERVICE
o Each party (a) represents that it has entered into a membership agreement
with the NSCC and it is eligible to participate in the NSCC's Fund/SERV
system and (b) agrees to perform all duties assigned to it by the NSCC
and to conduct its activities in accordance with the rules, regulations,
policies and procedures of the NSCC, as applicable.
o We shall use our best efforts to transmit all Account transactions
through Fund/SERV by 8:00 p.m., Eastern time each Business Day or, if we
are using the Defined Contribution Clearing Service of the NSCC ("DCCS")
and use the settlement override indicator, 6:00 a.m. on the next Business
Day ("T+1"). If we fail to transmit such transactions through Fund/SERV
by 12:00 a.m., Eastern time on T+1, or, if we are using DCCS and use the
settlement override indicator, by 6:00 a.m. on T+1, we shall notify you
by 9:00 a.m., Eastern time on T+1 of such failure.
FOR MANUAL TRANSACTIONS
Unless processed using the NSCC's Fund/SERV interfaces in the customary manner
as prescribed by the NSCC, operational responsibilities will be executed as
follows:
o For trades placed on T+1 for investment at the prior Business Day's net
asset value:
(a) Trade orders for the Accounts must be communicated to you by us
prior to 9:00 a.m., Eastern time on T+1 (the "Order Deadline") in
the manner agreed between the parties;
(b) We will wire, or arrange for the wire of, the purchase price of
each purchase order to the Funds' custodian (the "Custodian") as
you shall direct in writing so that either (i) such funds are
received by the Custodian prior to 11:30 a.m., Eastern time on
T+1, or (ii) we provide you or your designee a federal funds wire
system reference number prior to 11:30 a.m., Eastern time on T+1
evidencing the entry of the wire transfer of the purchase price
prior to such time; and
(c) You or your designee shall transmit by wire the proceeds of net
redemption orders placed by the Order Deadline by us to the
appropriate custodial account.
o You will make available confirmations of each executed trade the next
Business Day following receipt of the trade from us. We shall promptly
inform you of any discrepancies.
o You will make Account statements available no less frequently than each
calendar quarter.
