FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 1st day of May, 2003, by and
among JEFFERSON NATIONAL LIFE INSTJRANCE COMPANY ("Insurance Company"), a life
insurance company organized under the laws of the State of Texas, INVIVA
SECURITIES CORPORATION ("Contract Distributor"), LAZARD ASSET MANAGEMENT LLC
("XXX"), and LAZARD RETIREMENT SERIES, INC. ("Fund"), with respect to the Fund's
Portfolios named on Schedule 1, as it may be amended from time to time (each a
"Portfolio").
ARTICLE I.
DEFINITIONS
The following terms used in this Agreement shall have the meanings
set forth below:
1.1 "1933 Act" shall mean the Securities Act of 1933, as amended.
1.2 "1940 Act" shall mean the Investment Company Act of 1940, as amended.
1.3 "Board" shall mean Fund's Board of Directors.
1.4 "Business Day" shall mean any day for which the Portfolios calculate
net asset value per share as described in the Portfolio Prospectuses.
1.5 "Code" shall mean the Internal Revenue Code of 1986, as amended. 1.6
"Commission" shall mean the Securities and Exchange Commission.
1.7 "Contract" shall mean a variable annuity or variable life insurance
contract that uses a Portfolio as an underlying investment medium and
is named on Schedule 1.
1.8 "Contract Portfolios" shall mean investment companies, other than the
Portfolios, used by a Contract as an underlying investment medium.
1.9 "Contract Prospectus" shall mean the currently effective prospectus
and statement of additional information or other offering documents
with respect to a Contract (such as a written description of a
Contract not registered under the 1933 Act), including any supplements
or amendments thereto.
1.10 "Contractholder" shall mean any person that is a party to a Contract
with a Participating Company.
1.11 "Disinterested Board Members" shall mean those members of the Board
that are not deemed to be "interested persons" of Fund, as defined in
the 0000 Xxx.
1.12 "General Account" shall mean the general account of Insurance Company.
1.13 "IRS" shall mean the Internal Revenue Service.
1.14 "NASD" shall mean the National Association of Securities Dealers, Inc.
1.15 "Notice" shall mean the notice related to the Order.
1.16 "Order" shall mean Fund's mixed and shared funding exemptive order of
the Commission pursuant to Section 6(c) of the 0000 Xxx.
1.17 "Participants" shall mean individuals who participate under a group
Contract.
1.18 "Participating Company" shall mean any insurance company, including
Insurance Company, that offers variable annuity and/or variable life
insurance contracts and that has entered into an agreement with Fund
for the purpose of making Portfolio shares available to serve as the
underlying investment medium for Contracts.
1.19 "Parties" shall mean Insurance Company, Contract Distributor, XXX and
Fund, collectively.
1.20 "Portfolio Prospectus" shall mean the currently effective prospectus
and statement of additional information with respect to a Portfolio,
including any supplements or amendments thereto.
1.21 "Separate Account" shall mean a separate account duly established by
Insurance Company that invests in a Portfolio and is named on Schedule
1.
ARTICLE II.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
2.1 Insurance Company represents, warrants and covenants 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 and shall maintain each
Separate Account pursuant to applicable insurance laws and
regulations;
(c) it has registered and shall maintain the registration of each
Separate Account as a unit investment trust under the 1940 Act
to serve as a segregated investment account for the Contracts,
or, alternatively, it has not so registered the Separate
Accounts in proper reliance upon an exclusion from such
registration (which exclusion shall be communicated to Fund);
(d) each Separate Account is and at all times shall be eligible to
invest in shares of a Portfolio without such investment
disqualifying Fund as an investment medium for insurance
company separate accounts supporting variable annuity and/or
variable life insurance contracts;
(e) each Separate Account is and at all times shall be a
"segregated asset account" and interests in each Separate
Account that are offered to the public shall be
issued exclusively through the purchase of a Contract that is
and at all times shall be a "variable contract," in each case
within the meaning of such terms under Section 817 of the Code
and the regulations thereunder; Insurance Company agrees to
notify Fund and XXX immediately upon having a reasonable basis
for believing that such requirements have ceased to be met or
that they might not be met in the future;
(f) the Contracts are and at all times shall be treated as life
insurance, endowment or annuity contracts under applicable
provisions of the Code, and it shall notify Fund immediately
upon having a reasonable basis for believing that the
Contracts have ceased to be so treated or that they might not
be so treated in the future; and
(g) all of its employees and agents who deal with money and/or
securities of Fund are and shall continue to be at all times
covered by a blanket fidelity bond or similar coverage, which
shall include coverage for larceny and embezzlement and shall
be issued by a reputable bonding company, in an amount not
less than that required to be maintained by Fund; Insurance
Company agrees to hold for the benefit of Fund and to pay to
Fund any amounts lost from larceny, embezzlement or other
events covered by said bond to the extent such amounts
properly belong to Fund pursuant to the terms of this
Agreement.
2.2 Insurance Company and Contract Distributor represent, warrant and
covenant that: (a) units of interest in each Separate Account
available through the purchase of Contracts are registered under the
1933 Act, or are not so registered in proper reliance upon an
exclusion from such registration; (b) the Contracts shall be issued
and sold in compliance in all material respects with all applicable
federal and state laws, including state insurance suitability
requirements; and (c) Insurance Company and Contract Distributor will
otherwise comply in all material respects with all applicable federal
and state laws, including state insurance laws and regulations, in the
performance of this Agreement. Insurance Company agrees to inform Fund
promptly of any investment restrictions imposed by state insurance law
and applicable to Fund.
2.3 Contract Distributor represents and warrants that it is and at all
times shall be: (a) registered with the Commission as a broker-dealer;
(b) a member in good standing of the NASD; and (c) duly organized,
validly existing and in good standing under applicable law, with full
power, authority, and legal right to execute, deliver and perform its
duties and comply with its obligations under this Agreement.
2.4 Fund represents and warrants that:
(a) it is and shall remain registered with the Commission as an
open-end, management investment company under the 1940 Act;
(b) Portfolio shares are registered under the 1933 Act;
(c) it possesses and shall maintain all legal and regulatory
licenses, approvals, consents and/or exemptions required for
it to operate and offer its shares as an underlying investment
medium for the Contracts;
(d) each Portfolio is or will be qualified as a regulated
investment company under Subchapter M of the Code, it shall
make every effort to maintain such qualification, and it shall
notify
Insurance Company promptly upon having a reasonable basis for
believing that any Portfolio invested in by a Separate Account
has ceased to so qualify or that it might not so qualify in
the future; and
(e) all of its directors, officers, employees, investment
advisers, and other individuals/entjtjes who deal with the
money and/or securities of Fund are and shall continue to be
at all times covered by a blanket fidelity bond or similar
coverage, which shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding
company, for the benefit of Fund in an amount not less than
that required by Rule l7g-l under the 0000 Xxx.
2.5 Fund makes no representation as to whether any aspect of is
operations, including without limitation, investment policies, fees
and expenses, complies with the insurance laws of any state.
2.6 Each Portfolio's assets will be managed and invested in a manner that
complies with the requirements of Section 817(h) of the Code and
Treasury Regulation Section 1.817-5, relating to the diversification
requirements for variable annuity, endowment or life insurance
contracts. If a Portfolio fails to comply with Section 817(h) of the
Code, Fund will take all reasonable steps to adequately diversify the
Portfolio so as to achieve compliance within the grace period afforded
by Treasury Regulation Section 1.817-5. If Fund does not adequately
diversify the Portfolio during the grace period, it will take
reasonable steps to notify Insurance Company that the Portfolio has
failed to so comply. In the event the IRS asserts in writing in
connection with any governmental audit or review of Insurance Company
or, to Insurance Company's knowledge, of any Contractholder, that any
Portfolio has failed or allegedly failed to comply with the
diversification requirements of Section 8 17(h) of the Code or the
regulations thereunder or Insurance Company otherwise becomes aware of
any facts that could give rise to any claim against Fund or its
affiliates as a result of such a failure or alleged failure, Insurance
Company shall promptly notify Fund and XXX of such assertion or
potential claim and shall permit Fund and XXX and its affiliates and
their legal and accounting advisers to participate in any conferences,
discussions or proceedings with the IRS, any Contractholder or any
other claimant regarding such claims.
2.7 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-F, or any similar term or
terms as defined in other applicable Privacy Law, "Customer
Information") received from another Party other than (a) as required
by law, regulation or rule; (b) as permitted in writing by the
disclosing party; (c) to its affiliates; or (d) as necessary to
perform this Agreement or to service Contractholders, in each case in
compliance with the reuse and redisclosure provisions of Privacy Law.
Each Party shall use its best efforts to (i) 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 (ii) 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, Customer Information.
2.8 Insurance Company and Contract Distributor have adopted compliance
policies and procedures to comply with any U.S. Department of the
Treasury and/or Office of Foreign Assets Control laws, regulations,
requirements and guidance (including, but not limited to, those
regarding Specially Designated Nationals and Blocked Persons, or any
similar provisions; collectively, 'OFAC Requirements") applicable to
the Fund or to Insurance Company, Contract Distributor and/or a
Separate Account (as record holder of Fund shares maintaining
information regarding Contractholders).
2.9 Insurance Company and Contract Distributor have adopted compliance
policies and procedures to comply with all money laundering and
currency transaction reporting laws, regulations, requirements and
guidance applicable to the Fund or to Insurance Company, Contract
Distributor and/or a Separate Account (as record holder of Fund shares
maintaining information regarding Contractholders), including
Contractholder identification and verification, suspicious activity
reporting and recordkeeping requirements (collectively with OFAC
Requirements, "AML Requirements"), and with any "money laundering"
guidelines as may be provided by XXX or the Fund or agreed between the
Parties.
2.10 Insurance Company and Contract Distributor will provide Fund with (i)
a copy of their policies and procedures regarding AML Requirements and
(ii) such other certifications and representations regarding AML
Requirements on Fund's reasonable request. Insurance Company and
Contract Distributor will ensure the ability of federal examiners to
obtain information and records relating to AML Requirements and the
ability of you and Fund or its agents to inspect Insurance Company's
and Contract Distributor's records and facilities regarding compliance
with AML Requirements.
ARTICLE III.
FUND SHARES
3.1 Fund agrees to make the shares of each Portfolio available for
purchase by Insurance Company and each Separate Account at net asset
value, subject to the terms and conditions of this Agreement and the
Portfolio Prospectus. Fund may refuse to sell the shares of any
Portfolio to any person, or suspend or terminate the offering of the
shares of any Portfolio, as permitted by law or by regulatory
authorities having jurisdiction or if, in the sole discretion of the
Board acting in good faith and in light of its fiduciary duties under
federal and any applicable state laws, suspension or termination is
necessary and in the best interests of the shareholders of such
Portfolio.
3.2 Fund agrees that it shall sell shares of the Portfolios only to
Participating Companies and their separate accounts, the general
accounts of Participating Companies and their affiliates and to
qualified pension and retirement plans. No shares of any Portfolio
will otherwise be sold to the general public.
3.3 Except as noted in this Article III, Fund and Insurance Company agree
that orders and related payments to purchase and redeem Portfolio
shares shall be processed in the manner set out in Schedule 2 hereto.
3.4 Fund shall confirm each purchase or redemption order made by Insurance
Company. Transfer of Portfolio shares shall be by book entry only. No
share certificates shall be issued to Insurance Company. Shares
ordered from Fund shall be recorded in an appropriate title for
Insurance Company, on behalf of each Separate Account or the General
Account.
3.5 Fund shall promptly notify Insurance Company of the amount of dividend
and capital gain, if
any, per share of each Portfolio to which each Separate Account is
entitled. Insurance Company hereby elects to reinvest all dividends
and capital gains of any Portfolio in additional shares of that
Portfolio at the applicable net asset value per share, until Insurance
Company otherwise notifies Fund in writing.
ARTICLE IV.
STATEMENTS AND REPORTS
4.1 Fund shall provide Insurance Company with monthly statements of
account for each Separate Account's Portfolio accounts as of the end
of each month by the fifteenth (15th) Business Day of the following
month.
4.2 (a) At least annually, Fund or its designee shall provide
Insurance Company with as many copies of Portfolio
Prospectuses as Insurance Company may reasonably request for
distribution by Insurance Company to existing Contractholders
and Participants with respect to Separate Accounts invested in
the relevant Portfolios.
(b) If requested by Insurance Company, Fund or its designee shall
provide Portfolio Prospectuses in "camera ready' copy or, at
the request of Insurance Company, electronically in .pdf
format, and other assistance as is reasonably necessary in
order for the Parties once a year (or more frequently if the
Portfolio Prospectuses are supplemented or updated) to have
the Contract Prospectuses and the Portfolio together in one
document. The expenses of such printing will be borne by
Insurance Company.
(c) Fund or its designee shall provide Insurance Company, at
Insurance Company's expense, with as many copies of Portfolio
Prospectuses as Insurance Company may reasonably request for
distribution by Insurance Company to prospective purchasers of
Contracts, and shall provide same electronically in .pdf
format at the request of Insurance Company.
(d) The form of the Portfolio Prospectuses provided to
Insurance Company shall be the final form of Portfolio
Prospectus as filed with the Commission, which form shall
include only those Portfolios identified on Schedule 1.
4.3 Fund shall provide Insurance Company with at least one complete copy
of all registration statements, periodic reports and proxy statements
and all applications for exemptive orders and requests for no-action
letters that relate to a Separate Account, or shall provide such
materials electronically in .pdf format at the request of Insurance
Company.
4.4 Fund shall provide Insurance Company with copies of each Portfolio's
periodic reports, proxy statements and other printed materials (which
the Portfolio customarily provides to its shareholders) in quantities
as Insurance Company may reasonably request for distribution by
Insurance Company to each Contractholder and Participant with respect
to Separate Accounts invested in that Portfolio, or shall provide such
materials electronically in .pdf format at the request of Insurance
Company.
4.5 Insurance Company shall provide Fund with at least one complete copy
of all registration statements, periodic reports, proxy statements,
applications for exemptive orders, requests for noaction letters, and
all amendments to any of the above, that are material to a Portfolio
promptly after the filing of such document with the Commission or
other regulatory authorities or, if such materials are not filed,
contemporaneously with first use. Insurance Company shall provide to
Fundd and XXX any complaints received from Contractholders pertaining
to Fund or a Portfolio.
ARTICLE V.
EXPENSES
5.1 Except as otherwise specifically provided herein, each Party will bear
all expenses incident to its performance under this Agreement.
5.2 Lazard Freres & Co. LLC ("LF & Co.") may pay Contract Distributor for
distribution and/or other services relating to Portfolio shares
pursuant to any distribution plan adopted by Fund in accordance with
Rule 12b-1 under the 1940 Act, subject to the terms of an agreement
between Contract Distributor and LF & Co. related to such plan.
ARTICLE VI.
EXEMPTIVE RELIEF
6.1 Insurance Company acknowledges that it has reviewed a copy of the
Order and, in particular, has reviewed the conditions to the relief
set forth in the Notice. As required by the conditions set forth in
the Notice, Insurance Company shall report any potential or existing
conflicts promptly to the Board. In addition; Insurance Company shall
be responsible for assisting the Board in carrying out its
responsibilities under the Order by providing the Board with all
information necessary for the Board to consider any issues raised
including, without limitation, information whenever Contract voting
instructions are disregarded. Insurance Company, at least annually
(but more frequently if requested by Fund), shall submit to the Board
such reports, materials, or data as the Board may reasonably request
so that the Board may carry out fully the obligations imposed upon it
by the Order. Insurance Company agrees to carry out such
responsibilities with a view only to the interests of existing
Contractholders.
6.2 If a majority of the Board, or a majority of Disinterested Board
Members, determines that a material irreconcilable conflict exists
with regard to Contractholder investments in Fund, the Board shall
give prompt notice to all Participating Companies. If the Board
determines that Insurance Company is a Participating Company for whom
the conflict is relevant, Insurance Company shall at its sole cost and
expense, and to the extent reasonably practicable (as determined by a
majority of the Disinterested Board Members), take such action as is
necessary to remedy or eliminate the irreconcilable material conflict.
Such necessary action may include, but shall not be limited to:
(a) withdrawing the assets allocable to some or all Separate
Accounts from Fund or any Portfolio and reinvesting such
assets in a different investment medium (which may include
another Portfolio);
(b) submitting the question of whether such segregation should be
implemented to a vote of all affected Contractholders and, as
appropriate, segregating the assets of any appropriate group
(i.e. variable annuity or variable life insurance
Contractholders) that votes in favor of such segregation;
and/or
(c) establishing a new registered management investment company or
managed separate account.
6.3 If a material irreconcilable conflict arises as a result of a decision
by Insurance Company
disregard Contractholder voting instructions and that decision
represents a minority position or would preclude a majority vote,
Insurance Company may be required, at the Board's election, to
withdraw the investments of its Separate Accounts in Fund.
6.4 For the purpose of this Article, a majority of the Disinterested Board
Members shall determine whether any proposed action adequately
remedies any material irreconcilable conflict, but in no event shall
Fund or XXX or any other investment adviser of Fund be required to
bear the expense of establishing a new funding medium for any
Contract. Insurance Company shall not be required by this Article to
establish a new funding medium for any Contract if an offer to do so
has been declined by vote of a majority of the Contractholders
materially and adversely affected by the material irreconcilable
conflict.
6.5 No action by Insurance Company taken or omitted, and no action by a
Separate Account or Fund taken or omitted as a result of any act or
failure to act by Insurance Company pursuant to this Article VI shall
relieve Insurance Company of its obligations under, or otherwise
affect the operations of, this Article VI.
ARTICLE VII.
VOTING OF FUND SHARES
7.1 Insurance Company shall provide pass-through voting privileges to all
Contractholders and Participants so long as and to the extent the
Commission continues to interpret the 1940 Act as requiring
pass-through voting privileges or to the extent otherwise required by
law. Accordingly, Insurance Company, where applicable, shall vote
shares of a Portfolio held in each Separate Account in a manner
consistent with voting instructions timely received from its
Contractholders and Participants. Insurance Company shall be
responsible for assuring that the Separate Account determines voting
privileges in a manner consistent with other Participating Companies.
Insurance Company shall vote shares for which it has not received
timely voting instructions, as well as shares it owns, in the same
proportion as it votes those shares for which it has received voting
instructions.
7.2 If and to the extent Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are
amended, or if Rule 6e-3 is adopted, to provide exemptive relief from
any provision of the 1940 Act or the rules thereunder with respect to
mixed and shared funding on terms and conditions materially different
from any exemptions granted in the Order, then Fund, and/or the
Participating Companies, as appropriate, shall take such steps as may
be necessary to comply with Rule 6e-2 and Rule 6e-3(T), as amended,
and Rule 6e-3, as adopted, to the extent such Rules are applicable.
7.3 Insurance Company agrees that it shall not, without the prior written
consent of Fund and XXX, solicit, introduce or encourage
Contractholders or Participants to (a) change or supplement Fund's
investment adviser or (b) change, modify, substitute, add to or delete
a Portfolio from the current investment options under the Contracts.
ARTICLE VIII.
MARKETING
8.1 Fund or its designee shall periodically furnish Insurance Company with
sales literature or other promotional materials for each Portfolio, in
quantities as Insurance Company may reasonably request, for
distribution to prospective purchasers of Contracts. Expenses for the
printing and distribution of such documents shall be borne by
Insurance Company.
8.2 Insurance Company shall designate certain persons or entities that
shall have the requisite licenses to solicit applications for the sale
of Contracts.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to
Fund each piece of sales literature or other promotional material in
which Fund, XXX, XX & Co. or Fund's investment adviser or
administrator is named, at least five (5) Business Days prior to its
use. No such material shall be used unless Fund and XXX or their
respective designees approve such material in writing.
8.4 Fund shall furnish, or shall cause to be furnished, to Insurance
Company each piece of Fund's sales literature or other promotional
material in which Insurance Company or a Separate Account is named, at
least five (5) Business Days prior to its use. No such material shall
be used unless Insurance Company approves such material in writing.
8.5 Insurance Company shall not give any information or make any
representations or statements on behalf of Fund, XXX or LF & Co. or
concerning Fund or any Portfolio other than the information or
representations contained in a Portfolio Prospectus, periodic reports,
proxy statements or in sales literature or other promotional material
approved by Fund.
8.6 Fund shall not, in connection with the sale of Portfolio shares, give
any information or make any representations on behalf of Insurance
Company or concerning Insurance Company, a Separate Account, or the
Contracts other than the information or representations contained in a
Contract Prospectus, in published reports for each Separate Account
that are in the public domain or approved by Insurance Company for
distribution to Contractholders or Participants, or in sales
literature or other promotional material approved by Insurance
Company.
8.7 For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without
limitation, advertisements (such as material published, or designed
for use, in a newspaper, magazine or other periodical, radio,
television, telephone or tape recording, videotape display, signs or
billboards, motion pictures or other public media), sales literature
(such as any written communication distributed or made generally
available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, or
reprints or excerpts of any other advertisement, sales literature or
published article), educational or training materials or other
communications distributed or made generally available to some or all
agents or employees, prospectuses, statements of additional
information, shareholder reports and proxy materials, and any other
material constituting sales literature or advertising under the rules
of the NASD, the 1940 Act or the 1933 Act.
ARTICLE IX.
INDEMNIFICATION
9.1 Insurance Company and Contract Distributor each agree to indemnify and
hold harmless Fund, XXX, any investment adviser of a Portfolio, and
their affiliates, and each of their
respective directors, trustees, general members, officers, employees,
agents and each person, if any, who controls any of the foregoing
entities or persons within the meaning of the 1933 Act (collectively,
the "Indemnified Parties' for purposes of this Section 9.1), against
any and all losses, claims, damages or liabilities, joint or several
(including any investigative, legal and other expenses reasonably
incurred in connection with or any amounts paid in settlement of, any
action, suit or proceeding or any claim asserted and any income taxes,
penalties or toll charges) (collectively, "Losses") for which the
Indemnified Parties may become subject insofar as such Losses (or
actions in respect thereof):
(a) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration
statement, Contract Prospectus, Contract or sales literature or other
promotional material relating to a Separate Account or the Contracts
(collectively, "Account documents") or arise out of or are based upon
the omission or the alleged omission to state in any Account documents
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading; provided, however, that neither Insurance
Company nor Contract Distributor shall be liable in any such case to
the extent that any such Loss arises out of or is based upon any such
materially untrue statement or material omission made in any Account
document which materially untrue statement or material omission was
made in reliance upon and in conformity with written information
furnished by or on behalf of Fund specifically for use therein;
(b) arise Out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration
statement, Portfolio Prospectus or sales literature or other
promotional material relating to Fund or a Portfolio (collectively,
"Portfolio documents") or arise out of or are based upon the omission
or the alleged omission to state in any Portfolio documents a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, provided such materially untrue statement or material
omission was made in reliance upon and in conformity with information
furnished to Fund or XXX by or on behalf of Insurance Company or
Contract Distributor specifically for use therein;
(c) arise out of or as a result of statements or representations (other
than statements or representations contained in any Portfolio document
not made in reliance upon and in conformity with information furnished
to Fund or XXX by or on behalf of Insurance Company or Contract
Distributor specifically for use therein and on which Insurance
Company or Contract Distributor have reasonably relied) or wrongful
conduct of Insurance Company or Contract Distributor or their
respective agents and persons under their respective control with
respect to the sale and distribution of Contracts or Portfolio shares;
(d) arise out of any material breach of any representation, warranty
and/or covenant made by Insurance Company or Contract Distributor in
this Agreement, or arise out of or result from any other material
breach of this Agreement by Insurance Company or Contract Distributor;
(e) arise out of Insurance Company's incorrect calculation and/or
incorrect or untimely reporting of net purchase or redemption orders;
or
(f) arise out of or are related to any tax liability under Section 851 of
the Code arising from purchases or redemptions by the General Account
or the accounts of Insurance Company's affiliates.
9.2 Fund and XXX each agree to indemnify and hold harmless Insurance
Company and Contract Distributor and each of their respective
directors, trustees, general members, officers, employees, agents and
each person, if any, who controls Insurance Company or Contract
Distributor within the meaning of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 9.2), against
Losses for which Indemnified Parties may become subject insofar as
such Losses (or actions in respect thereof):
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any
Portfolio documents or arise out of or are based upon the
omission or the alleged omission to state in any Portfolio
documents a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
provided, however, that neither Fund nor XXX shall be liable
in any such case to the extent that any such Loss arises out
of or is based upon any such materially untrue statement or
material omission made in any Portfolio document which
materially untrue statement or material omission was made in
reliance upon and in conformity with information furnished by
or on behalf of Insurance Company or Contract Distributor
specifically for use therein;
(b) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in Account
documents or arise out of or are based upon the omission or
the alleged omission to state in any Account documents a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in
which they were made, not misleading, provided such materially
untrue statement or material omission was made in reliance
upon and in conformity with written information furnished to
Insurance Company or Contract Distributor by or on behalf of
Fund specifically for use therein;
(c) arise out of or as a result of statements or representations
(other than statements or representations contained in any
Account document on which Fund or XXX have reasonably relied)
or wrongful conduct of Fund or XXX or their respective agents
and persons under their respective control with respect to the
sale and distribution of Portfolio shares;
(d) arise out of any material breach of any representation and/or
warranty made by Fund or XXX in this Agreement, or arise out
of or result from any other material breach of this Agreement
by Fund or XXX; or
(e) arise out of Fund's failure to correct in a timely manner any
incorrect calculation and/or reporting of the daily net asset
value, dividend rate or capital gain distribution rate of a
Portfolio; provided, however, that Fund shall have no
obligation to indemnify and hold harmless the Indemnified
Parties if the incorrect calculation or reporting was the
result of incorrect information furnished by or on behalf of
Insurance Company or Contract Distributor or otherwise as a
result of or relating to Insurance Company's or Contract
Distributor's negligence or breach of this Agreement.
9.3 In no event shall Fund or XXX be liable for any consequential,
incidental, special or indirect damages resulting to Insurance Company
or Contract Distributor hereunder.
9.4 Notwithstanding anything herein to the contrary, in no event shall
Fund or XXX be liable to any individual or entity including, without
limitation, Insurance Company, Contract
Distributor or any Contractholder or Participant, with respect to any
Losses that arise out of or result from a breach of any
representation, warranty, and/or covenant made by Insurance Company or
Contract Distributor hereunder or by any Participating Company under
an agreement containing substantially similar representations,
warranties and covenants.
9.5 (a)Promptly after receipt by a Party that may be entitled to
indemnification under this Article ("Indemnified Party" for purposes
of this Section) of notice of the commencement of any action which may
result in Losses, such Indemnified Party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Article ("Indemnifying Party" for purposes of this Section), notify
Indemnifying Party of the commencement thereof. The failure to so
notify shall not relieve Indemnifying Party from any liability under
this Article IX, except to the extent that Indemnifying Party is
damaged as a result of the failure to give such notice. If Indemnified
Party notifies Indemnifying Party of the commencement of any such
action, Indemnifying Party shall be entitled to participate therein
and, to the extent that it may wish, assume the defense thereof, with
counsel reasonably satisfactory to Indemnified Party, and to the
extent that Indemnifying Party has given notice to such effect and is
performing its obligations under this Article, Indemnifying Party
shall not be liable for any legal or other expenses subsequently
incurred by Indemnified Party in connection with the defense thereof,
other than reasonable costs of investigation. Notwithstanding the
foregoing, in any such proceeding, any Indemnified Party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at its expense unless (a) Indemnifying Party and
Indemnified Party shall have mutually agreed to the retention of such
counsel or (b) the named parties to any such proceeding (including any
impleaded parties) include both Indemnifying Party and Indemnified
Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent.
(b)No Party shall be liable under any of the foregoing indemnification
provisions with respect to any Losses 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 and duties under this Agreement.
9.6 A successor by law of any Party to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article IX.
ARTICLE X.
COMMENCEMENT AND TERMINATION
10.1 This Agreement shall continue in force until terminated in accordance
with the provisions herein.
10.2 This Agreement shall terminate without penalty as to one or more
Portfolios:
(a) at any time from the date hereof upon 60 days' written notice;
(b) at the option of Insurance Company if it determines that
shares of any Portfolio are not reasonably available to meet
the requirements of the Contracts; Insurance Company shall
furnish prompt written notice of election to terminate and
termination shall be effective ten days after receipt of
written notice unless Fund makes available a sufficient number
of shares to meet the requirements of the Contracts within
such ten day period;
(c) at the option of Insurance Company upon the institution of
formal proceedings against Fund or XXX or their respective
affiliates by the Commission or any other regulatory body, the
expected or anticipated ruling, judgment or outcome of which
would, in Insurance Company's reasonable judgment, materially
impair the other's ability to meet and perform its obligations
and duties hereunder; prompt written notice of election to
terminate shall be furnished with termination to be effective
as specified therein;
(d) at the option of Fund upon the institution of formal
proceedings against Insurance Company or Contract Distributor
or their respective affiliates by the Commission, the NASD or
any other regulatory body, the expected or anticipated ruling,
judgment or outcome of which would, in Fund's reasonable
judgment, materially impair the other's ability to meet and
perform its obligations and duties hereunder; prompt written
notice of election to terminate shall be furnished with
termination to be effective as specified therein;
(e) upon termination of the Investment Management Agreement
between Fund, on behalf of its Portfolios, and XXX or its
successors unless Insurance Company specifically approves the
selection of a new investment adviser for the Portfolios;
(f) at the option of Fund upon a determination by the Board in
good faith that it is no longer advisable and in the best
interests of shareholders for Fund to continue to operate
pursuant to this Agreement; termination shall be effective
upon notice by Fund to Insurance Company of such termination;
(g) at the option of any Party, upon another's breach of any
material representation, warranty or other provision of this
Agreement; or
(h) upon assignment (as defined in the 0000 Xxx) of this
Agreement, unless made with the written consent of the
non-assigning Parties.
Any such termination pursuant to this Article X shall not affect the
operation of Articles V or IX of this Agreement. The Parties agree
that any termination pursuant to Article VI shall be governed by that
Article.
10.3 Notwithstanding any termination of this Agreement, Fund and XXX may,
at the option of Fund, continue to make available additional Portfolio
shares for so long as Fund desires pursuant to the terms and
conditions of this Agreement as provided below, for all Contracts in
effect on the effective date of termination of this Agreement
(hereinafter referred to as the "Existing Contracts"). Specifically,
without limitation, if Fund so elects to make additional Portfolio
shares available, the owners of the Existing Contracts or Insurance
Company, whichever shall have legal authority to do so, shall be
permitted to reallocate investments among the Portfolios, redeem
investments in the Portfolios and/or invest in the Portfolios upon the
making of additional purchase payments under the Existing Contracts.
In the event of a termination of this Agreement pursuant to Section
10.2 hereof, Fund, as promptly as is
practicable under the circumstances, shall notify Insurance Company as
to whether Fund shall continue to make Portfolio shares available
after such termination. If Portfolio shares continue to be made
available after such termination, the provisions of this Agreement
shall remain in effect and thereafter either Fund or Insurance Company
may terminate the Agreement, as so continued pursuant to this Section
10.3, upon prior written notice to the other Parties, such notice to
be for a period that is reasonable under the circumstances but, if
given by Fund, need not be for more than six months.
10.4 In the event of any termination of this Agreement, the Parties agree
to cooperate and give reasonable assistance to one another in taking
all necessary and appropriate steps for the purpose of ensuring that a
Separate Account owns no shares of a Portfolio beyond six months from
the date of termination. Such steps may include, without limitation,
substituting other investment company shares for those of the affected
Portfolio.
ARTICLE XI.
AMENDMENTS
11.1 Any changes in the terms of this Agreement shall be made by agreement
in writing by the Parties hereto, except as otherwise specified
herein.
ARTICLE XII.
NOTICE
12.1 Each notice required by this Agreement shall be given by certified
mail, return receipt requested, to the appropriate Parties at the
following addresses:
Insurance Company: Jefferson National Life Insurance Company
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Contract Distributor: Inviva Securities Corporation
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fund: Lazard Retirement Series, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
XXX: Lazard Asset Management LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
with a copy to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Notice shall be deemed to be given on the date of receipt by the
addresses as evidenced by the return receipt.
ARTICLE XIII.
MISCELLANEOUS
13.1 If any provision of this Agreement is held or made invalid by a court
decision, statute, rule, or otherwise, the remainder of this Agreement
will not be affected thereby.
13.2 The rights, remedies, indemnities and obligations contained in this
Agreement are cumulative and are in addition to any and all rights,
remedies, indemnities and obligations, at law or in equity, to which
the Parties are entitled.
13.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and
the same instrument.
ARTICLE XIV.
LAW
14.1 This Agreement shall be construed in accordance with the internal laws
of the State of New York, without giving effect to principles of
conflict of laws.
IN WITNESS WHEREOF, this Agreement has been executed and attested on behalf of
the Parties as of the date first above written.
JEFFERSON NATIONAL LIFE INSURANCE COMPANY
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
-------------------- -------------------
INVIVA SECURITIES CORPORATION
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
-------------------- -------------------
LAZARD RETIREMENT SERIES, INC.
By: /s/ Signature Illegible
LAZARD ASSET MANAGEMENT LLC
By: /s/ Signature Illegible 6-23-03
SCHEDULE 1
PORTFOLIOS
Lazard Retirement Bantam Value Portfolio
Lazard Retirement Emerging Markets Portfolio
Lazard Retirement Emerging World Funds Portfolio
Lazard Retirement Equity Portfolio
Lazard Retirement Global Equity Portfolio
Lazard Retirement International Equity Portfolio
Lazard Retirement International Fixed-Income Portfolio
Lazard Retirement International Small Cap Portfolio
Lazard Retirement Small Cap Portfolio
Lazard Retirement Strategic Yield Portfolio
SEPARATE ACCOUNTS
Jefferson National Variable Annuity Account C
Jefferson National Variable Annuity Account E
Jefferson National Variable Annuity Account F
Jefferson National Variable Annuity Account G
Jefferson National Variable Annuity Account H
Jefferson National Variable-Annuity Account I
Jefferson National Variable Account L
CONTRACTS
CVIC-2000
CVIC -2001
CVTC-2004
CVIC-2005
22-4056
22-4025
32-4000
32-4002
32-4003
22-4047
22-4048
SCHEDULE 2
PORTFOLIO SHARE ORDER PROCESSING
PRICING
1. Each Business Day, Fund shall use its best efforts to make each
Portfolio's closing net asset value per share ("NAV") available to
Insurance Company by 6:30 p.m. Eastern time.
2. At the end of each Business Day, Insurance Company shall calculate
each Separate Account's unit values. Using this unit value, Insurance
Company shall process that Business Day's Contract and Separate
Account transactions to determine the net dollar amount of each
Portfolio's shares to be purchased or redeemed.
3. Fund hereby appoints Insurance Company as its agent for the limited
purpose of receiving orders for the purchase and redemption of
Portfolio shares for the Separate Accounts. Fund will execute orders
at the applicable net asset value per share determined as of the close
of trading on the New York Stock Exchange (the "close of trading") on
the day of receipt of such orders by Insurance Company acting as agent
("effective trade date"), provided that Fund receives both the notice
of the order and any related purchase payments in accordance with this
Schedule. With each communication of orders, Insurance Company
represents and warrants that orders submitted by Insurance Company for
execution on the effective trade date represent purchase or redemption
orders received from Contractholders prior to the close of trading on
the effective trade date.
4. Insurance Company shall transmit net purchase or redemption orders to
Fund or its designee by 9:30 a.m. Eastern time on the Business Day
next following the effective trade date. For informational purposes
only, Insurance Company shall separately describe the amount of shares
of each Portfolio that are being purchased, redeemed, or exchanged
from one Portfolio to the other. In addition, Insurance Company shall
use its best efforts to notify Fund in advance of any unusually large
purchase or redemption orders.
5. Fund shall execute purchase and redemption orders for a Portfolio's
shares that relate to Insurance Company's General Account, or that do
not relate to Contract transactions, at that Portfolio's NAV next
determined after Fund (not Insurance Company) receives the order and
any related purchase payments in accordance with this Schedule.
6. Fund shall execute purchase and redemption orders for a Portfolio's
shares that relate to Contracts funded by Separate Accounts either
registered under the 1940 Act or not so registered in the same manner,
but only to the extent that Insurance Company represents and warrants
that it is legally or contractually obligated to treat such orders in
the same manner. Each order for Portfolio shares placed by Insurance
Company that is attributable, in whole or in part, to Contracts funded
by an unregistered Separate Account shall be deemed to constitute such
representation and warranty by Insurance Company unless the order
specifically states to the contrary. Otherwise, Fund shall treat
orders attributable to unregistered Separate Account Contracts in the
same manner as orders for the General Account.
7. Fund shall execute purchase or redemption orders for a Portfolio's
shares that do not satisfy the conditions specified in this Schedule
at the Portfolio's NAV next determined after such
conditions have been satisfied.
8. If Fund provides Insurance Company with materially incorrect net asset
value per share information through no fault of Insurance Company,
Insurance Company, on behalf of the Separate Account, may be entitled
to an adjustment to the number of shares purchased or redeemed to
reflect the correct net asset value per share in accordance with
Fund's current policies for correcting pricing errors. Any material
error in the calculation of net asset value per share, dividend rate
or capital gain distribution rate information shall be reported
promptly upon discovery to Insurance Company.
PAYMENT
9. Insurance Company shall pay for any net purchase order by wiring
Federal Funds to Fund or its designated custodial account by 4:00 p.m.
Eastern time on the same Business Day it transmits the order to Fund.
If Fund does not receive such payment by 4:00 p.m., Insurance Company
shall promptly, upon Fund's request, reimburse Fund for any charges,
costs, fees, interest or other expenses incurred by Fund in connection
with any advances to, or borrowings or overdrafts by, Fund, or any
similar expenses incurred by Fund, as a result of portfolio
transactions effected by Fund based upon such purchase request.
10. Fund shall pay for any net redemption order by wiring the redemption
proceeds to Insurance Company, except as provided below, within two
Business Days after Insurance Company transmits such order to Fund or,
upon notice to Insurance Company, such longer period as permitted by
the 1940 Act or the rules, orders or regulations thereunder. In the
case of any net redemption order valued at or greater than $1 million,
Fund shall wire such amount to Insurance Company within seven days of
the order. In the case of any net redemption order requesting the
application of proceeds from the redemption of one Portfolio's shares
to the purchase of another Portfolio's shares, Fund shall so apply
such proceeds the same Business Day that Insurance Company transmits
such order to Fund.
THE LAZARD FUNDS OPERATIONS CONTROL SHEET
COMPANY NAME:J
TIN Jefferson National Life Insurance Company
Address: 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxxxxxxxxx, Xxxxxxxx 00000
MAIN CONTACT: Xxxxx Xxxxx
Title Director - Separate Accounts
Telephone Number 000-000-0000
FAX NUMBER 000-000-0000
Email Address xxxxxx@xxxxxx.xxx
OPERATIONS CONTACT: Xxxxx Xxxxx or Xxxx Xxxxx
Title Director - Separate Accounts
Telephone Number 000-000-0000
Fax Number 000-000-0000
Email Address xxxxxx@xxxxxx.xxx
FULFILLMENT CONTACT:XXXXX Xxxxx or Xxxx Xxxxx
Title Director - Separate Accounts
Telephone Number 000-000-0000
Fax Number 000-000-0000
Email Address xxxxxx@xxxxxx.xxx
MONTHLY/DAILY DIVIDEND
PRICE & RATE CONTACT: Xxxxx Xxxxx or Xxxxxxx Xxxxxxxxxxx
Title Director - Separate Accounts
Telephone Number 000-000-0000
Fax Number 000-000-0000
Email Address xxxxxx@xxxxxx.xxx
ICI YEAR END BROKER
DIVIDEND FILE CONTACT: XXXXX Xxxxx
Title Director - Separate Accounts
Telephone Number 000-000-0000
Fax Number 000-000-0000
Email Address xxxxxx@xxxxxx.xxx
Please indicate the number of prospectuses you will need with this startup
Special Notes or Situations:
NSCC Dealers Please Complete Section 1 Non NSCC
Dealers PLEASE COMPLETE SECTION 2
(a) Section 1
(i) NSCC Dealer Information Sheet
NSCC OPERATIONS Contact: Xxxxx Xxxxx or Xxxxxxx Xxxxxxxxxxx
Title Director - Separate Accounts
Telephone Number 000-000-0000
Fax Number 000-000-0000
Email Address xxxxxx@xxxxxx.xxx
NSCC Clearing # ALPHA Code Agent for Firm
In what capacity will trades be placed:
/X/ Broker/Dealer Trust Company / / TPA
Will you clear for other firms? / /Yes /X/No
If so, will you provide agent for firm symbols? / /Yes /X/No
(If yes, please attach a list of symbols arid associated firm addresses)
Do you support next day (T+ 1) settlement? /X/Yes / /No
Will trades settle into an omnibus account? / /Yes / /No
Will purchase arid redemption orders be aggregated? / /Yes /X/No
Will you be responsible for 1099-B reporting on Fund/SERV redemptions? / /Yes /X/No
Will you be responsible for 1099-B reporting on FundJSERV exchanges? / /Yes /X/No
Will you be using the networking system? /X/Yes / /No
If so, what networking level(s) / /l / /2 / /3 / /4
Networking position schedule / /First / /Second / /THIRD / /Fourth / /Last (Friday)
(If other, please specify by attaching a schedule)
What time of day will your orders release to NSCC? /X/ 8AM to 4PM DCC&S Late Files
Do you participate in NSCC Commission Settlement Service for 12b-ls? / / Yes /X/ No
Section 2
(ii) Non-NSCC Dealer Information Sheet
Will you be placing your trades in an omnibus account? / /Yes / /No
(please complete a Lazard Funds Application)
Omnibus account for Cash and Reinvest (check all the apply) / /Cash / /Reinvest / /One of each
Will you be able to place your trades by 4:00 PM on Trade Date? / /Yes / /No
If not, by 9:00 am Trade Date +1? / /Yes / /No
Will you be settling your trades by 4:00PM on Trade Date +1? / /Yes / /No
Your Redemption and Dividend Cash Wire Instructions:
Bank Name: _________________________________
Address _______________________________________
ABA Number: ____________________________
Account Name: _______________________________________
Account Number: ____________________________
Lazard Funds purchase settlement instructions:
Xxxxx Xxxxxx Xxxx xxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx
ABA Number 000000000
Account Number 0000-000-0
Attention: Lazard Funds Deposit Account
ADDITIONAL FUND INFORMATION FOR YOUR FILES
BRANCH ADDRESS LISTING MAY BE SENT TO:
Boston Financial Data Services
Dealer Services
0 Xxxxxxxx x)xxxx
Xxxxx Xxxxxx, XX 00000
Phone: 000-000-0000 Fax: 000-000-0000
TRANSFER AGENT OPERATIONS CONTACTS
Customer Service 000-000-0000
Fund/SERV Xxxxxxx Xxxxxx 000-000-0000 Email Xxxxxxx@xxxxxxxxxxxxxxx.xxx
Non Fund/SERV Xxxxxxx Xxxxx 000-000-0000 Email Xxxxxx@xxxxxxxxxxxxxxx.xxx
LAZARD FUNDS MARKETING
Xxxx XxXxxxxx 000-000-0000 Email Xxxx.Xxxxxxxx@Xxxxxx.xxx
Xxxx Xxxxxxxxx 000-000-0000 Email Xxxx.Xxxxxxxxx@Xxxxxx.xxx
LAZARD FUNDS RELATIONSHIP MANAGER
Xxxxxxx Xxxxxxx 000-000-0000 Email Xxxxxxx.Xxxxxxx@Xx.xxxx.xxx
Xxxxxxx St. Clair 000-000-0000 Email
Xxxxxxx.Xx._Xxxxx@Xxxxxx.xxx
FUND USE ONLY: DFZ
Systei/MGMT CO.
Dealer Number
Eligible Fund Number
Media Suppression Estab.
Date
Refresher Estab. Date
