EXHIBIT (9)(b)
FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the ___ day of ____________, 1997, between
___________________________________________ ("Insurance Company"), a life
insurance company organized under the laws of the State of ________, and LAZARD
RETIREMENT SERIES, INC. (the "Fund"), a corporation organized under the laws of
the State of Maryland, with respect to the Fund's portfolios set forth on
Schedule 1 hereto, as such Schedule may be revised from time to time (each, a
"Portfolio").
ARTICLE I.
DEFINITIONS
1.1. "Act" shall mean the Investment Company Act of 1940, as
amended.
1.2. "Board" shall mean the Board of Trustees of the Fund having the
responsibility for management and control of the Fund.
1.3. "Business Day" shall mean any day for which the Fund calculates net
asset value per share as described in the Fund's Prospectus.
1.4. "Commission" shall mean the Securities and Exchange
Commission.
1.5. "Contract" shall mean a variable annuity contract that uses the Fund
as an underlying investment medium. Individuals who participate under
a group Contract are "Participants".
1.6. "Contractholder" shall mean any entity that is a party to a Contract
with a Participating Company.
1.7. "Disinterested Board Members" shall mean those members of the Board
that are not deemed to be "interested persons" of the Fund, as
defined by the Act.
1.8. "XXX" shall mean Lazard Asset Management, a division of
Lazard Freres & Co. LLC.
1.9. "Participating Companies" shall mean any insurance company (including
Insurance Company), which offers variable annuity and/or variable
life insurance contracts to the public and which has entered into an
agreement with the Fund for the purpose of making Fund shares
available to serve as the underlying investment medium for the
aforesaid Contracts.
1.10. "Prospectus" shall mean the Fund's current prospectus and
statement of additional information, as most recently
filed with the Commission, with respect to the Portfolios.
1.11. "Separate Account" shall mean _____________________ Company Variable
Annuity Separate Account, a separate account established by Insurance
Company in accordance with the laws of the State of __________.
1.12. "Software Program" shall mean the software program used by the Fund
for providing Fund and account balance information including net
asset value per share.
1.13. "Insurance Company's General Account(s)" shall mean the general
account(s) of Insurance Company and its affiliates which invest in
the Fund.
ARTICLE II.
REPRESENTATIONS
2.1. Insurance Company represents and warrants that (a) it is an insurance
company duly organized and in good standing under applicable law; (b)
it has legally and validly established the Separate Account pursuant
to the __________ Insurance Code for the purpose of offering to the
public certain individual variable annuity contracts; (c) it has
registered the Separate Account as a unit investment trust under the
Act to serve as the segregated investment account for the Contracts;
and (d) each Separate Account is eligible to invest in shares of the
Fund without such investment disqualifying the Fund as an investment
medium for insurance company separate accounts supporting variable
annuity contracts or variable life insurance contracts.
2.2. Insurance Company represents and warrants that (a) the Contracts will
be described in a registration statement filed under the Securities
Act of 1933, as amended ("1933 Act"); (b) the Contracts will be
issued and sold in compliance in all material respects with all
applicable federal and state laws; and (c) the sale of the Contracts
shall comply in all material respects with state insurance law
requirements. Insurance Company agrees to inform the Fund promptly of
any investment restrictions imposed by state insurance law and
applicable to the Fund.
2.3. Insurance Company represents and warrants that the income, gains and
losses, whether or not realized, from assets allocated to the
Separate Account are, in accordance with the applicable Contracts, to
be credited to or charged against such Separate Account without
regard to other income, gains or losses from assets allocated to any
other accounts of Insurance Company. Insurance Company represents and
warrants that the assets of the Separate Account are and will be kept
separate from Insurance Company's General Account and any other
separate accounts Insurance Company may have, and will not be charged
with liabilities from any business that Insurance Company may conduct
or the liabilities of any companies affiliated with Insurance
Company.
2.4. Fund represents that the Fund is registered with the Commission under
the Act as an open-end, management investment company and possesses,
and shall maintain, all legal and regulatory licenses, approvals,
consents and/or exemptions required for the Fund to operate and offer
its shares as an underlying investment medium for Participating
Companies. The Fund has established nine portfolios and may in the
future establish other portfolios.
2.5. Fund represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code of
1986, as amended (the "Code"), and that it will make every effort to
maintain such qualification (under Subchapter M or any successor or
similar provision) and that it will notify Insurance Company
immediately upon having a reasonable basis for believing that it has
ceased to so qualify or that it might not so qualify in the future.
2.6 Insurance Company represents and agrees that the Contracts are
currently, and at the time of issuance will be, treated as life
insurance policies or annuity contracts, whichever is appropriate,
under applicable provisions of the Code, and that it will make every
effort to maintain such treatment and that it will notify the Fund
and XXX 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. Insurance Company agrees that any
prospectus offering a Contract that is a "modified endowment
contract," as that term is defined in Section 7702A of the Code, will
identify such Contract as a modified endowment contract (or policy).
2.7. Fund agrees that each Portfolio's assets shall be managed and
invested in a manner that complies with the requirements of Section
817(h) of the Code.
2.8. Insurance Company agrees that the Fund shall be permitted (subject to
the other terms of this Agreement) to make the Portfolios' shares
available to other Participating Companies and contractholders.
2.9. Fund represents and warrants that any of its directors, officers,
employees, investment advisers, and other individuals/entities who
deal with the money and/or securities of the Fund are and shall
continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less
than that required by Rule 17g-1 under the Act. The aforesaid Bond
shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
2.10. Insurance Company represents and warrants that all of its employees
and agents who deal with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity
bond or similar coverage in an amount not less than the coverage
required to be maintained by the Fund. The aforesaid Bond shall
include coverage for larceny and embezzlement and shall be issued by
a reputable bonding company.
2.11. Insurance Company agrees that XXX shall be deemed a third party
beneficiary under this Agreement and may enforce any and all rights
conferred by virtue of this Agreement.
ARTICLE III.
FUND SHARES
3.1. The Contracts funded through the Separate Account will provide for
the investment of certain amounts in the Portfolios' shares.
3.2. Fund agrees to make the shares of its Portfolios available for
purchase at the then applicable net asset value per share by
Insurance Company and the Separate Account on each Business Day
pursuant to rules of the Commission. Notwithstanding the foregoing,
the Fund may refuse to sell the shares of any Portfolio to any
person, or suspend or terminate the offering of the shares of any
Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the
Board, acting in good faith and in light of its fiduciary duties
under federal and any applicable state laws, necessary and in the
best interests of the shareholders of such Portfolio.
3.3. Fund agrees that shares of the Portfolios will be sold only to
Participating Companies, their separate accounts, the general
accounts of those Participating Companies and their affiliates and to
qualified pension and retirement plans. No shares of any Portfolio
will be sold to the general public.
3.4. Fund shall use its best efforts to provide closing net asset value,
dividend and capital gain information for each Portfolio available on
a per-share and Portfolio basis to Insurance Company by ____ p.m.
Eastern Time on each Business Day. Any material errors in the
calculation of net asset value, dividend and capital gain information
shall be reported immediately upon discovery to Insurance Company.
Non-material errors will be corrected in the next Business Day's net
asset value per share for the Portfolio in question.
3.5. At the end of each Business Day, Insurance Company will use the
information described in Section 3.4 to calculate the Separate
Account unit values for the day. Using this unit value, Insurance
Company will process the day's Separate Account transactions received
by it by the close of trading on the floor of the New York Stock
Exchange (currently 4:00 p.m. Eastern time) to determine the net
dollar amount of Portfolio shares which will be purchased or redeemed
at that day's closing net asset value per share for such Portfolio.
The net purchase or redemption orders will be transmitted to the Fund
by Insurance Company by [11:00] a.m. Eastern Time on the Business Day
next following Insurance Company's receipt of that information.
Subject to Sections 3.6 and 3.8, all purchase and redemption orders
for Insurance Company's General Accounts shall be effected at the net
asset value per share of the relevant Portfolio next calculated after
receipt of the order by the Fund or its Transfer Agent.
3.6. Fund appoints Insurance Company as its agent for the limited purpose
of accepting orders for the purchase and redemption of shares of each
Portfolio for the Separate Account. Fund will execute orders for any
Portfolio at the applicable net asset value per share determined as
of the close of trading on the day of receipt of such orders by
Insurance Company acting as agent ("effective trade date"), provided
that the Fund receives notice of such orders by [11:00] a.m. Eastern
Time on the next following Business Day and, if such orders request
the purchase of Portfolio shares, the conditions specified in Section
3.8, as applicable, are satisfied. A redemption or purchase request
for any Portfolio that does not satisfy the conditions specified
above and in Section 3.8, as applicable, will be effected at the net
asset value computed for such Portfolio on the Business Day
immediately preceding the next following Business Day upon which such
conditions have been satisfied.
3.7. Insurance Company will make its best efforts to notify Fund in
advance of any unusually large purchase or redemption orders.
3.8 If Insurance Company's order requests the purchase of Portfolio
shares, Insurance Company will pay for such purchases by wiring
Federal Funds to Fund or its designated custodial account on the day
the order is transmitted. Insurance Company shall make all reasonable
efforts to transmit to the Fund payment in Federal Funds by [12:00
noon] Eastern Time on the Business Day the Fund receives the notice
of the order pursuant to Section 3.5. Fund will execute such orders
at the applicable net asset value per share determined as of the
close of trading on the effective trade date if Fund receives payment
in Federal Funds by [12:00 midnight] Eastern Time on the Business Day
the Fund receives the notice of the order pursuant to Section 3.5. If
payment in Federal Funds for any purchase is not received or is
received by the Fund after [12:00 noon] Eastern Time on such Business
Day, Insurance Company shall promptly upon the Fund's request,
reimburse the Fund for any charges, costs, fees, interest or other
expenses incurred by the Fund in connection with any advances to, or
borrowings or overdrafts by, the Fund, or any similar expenses
incurred by the Fund, as a result of portfolio transactions effected
by the Fund based upon such purchase request. If Insurance Company's
order requests the redemption of Portfolio shares valued at or
greater than $1 million, the Fund will wire such amount to Insurance
Company within seven days of the order.
3.9. Fund has the obligation to ensure that Portfolio shares are
registered with the Commission at all times.
3.10. Fund will confirm each purchase or redemption order made by Insurance
Company. Transfer of Portfolio shares will be by book entry only. No
share certificates will be issued to Insurance Company. Insurance
Company will record shares ordered from Fund in an appropriate title
for the corresponding account.
3.11. Fund shall credit Insurance Company with the appropriate number of
shares.
3.12. On each ex-dividend date of the Fund or, if not a Business Day, on
the first Business Day thereafter, Fund shall communicate to
Insurance Company the amount of dividend and capital gain, if any,
per share of each Portfolio. All dividends and capital gains of any
Portfolio shall be automatically reinvested in additional shares of
the relevant Portfolio at the applicable net asset value per share of
such Portfolio on the payable date. Fund shall, on the day after the
payable date or, if not a Business Day, on the first Business Day
thereafter, notify Insurance Company of the number of shares so
issued.
ARTICLE IV.
STATEMENTS AND REPORTS
4.1. Fund shall provide monthly statements of account as of the end of
each month for all of Insurance Company's accounts by the fifteenth
(15th) Business Day of the following month.
4.2. Fund shall distribute to Insurance Company copies of the Fund's
Prospectuses, proxy materials, notices, periodic reports and other
printed materials (which the Fund customarily provides to its
shareholders) in quantities as Insurance Company may reasonably
request for distribution to each Contractholder and Participant.
4.3. Fund will provide to Insurance Company at least one complete copy of
all registration statements, Prospectuses, reports, proxy statements,
sales literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any
of the above, that relate to the Fund or its shares,
contemporaneously with the filing of such document with the
Commission or other regulatory authorities.
4.4. Insurance Company will provide to the Fund at least one copy of all
registration statements, Prospectuses, reports, proxy statements,
sales literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any
of the above, that relate to the Contracts or the Separate Account,
contemporaneously with the filing of such document with the
Commission.
ARTICLE V.
EXPENSES
5.1. The charge to the Fund for all expenses and costs of the
Portfolios, including but not limited to management fees,
administrative expenses and legal and regulatory costs, will be made
in the determination of the relevant Portfolio's daily net asset
value per share.
5.2. Except as provided in this Article V and, in particular in the next
sentence, Insurance Company shall not be required to pay directly any
expenses of the Fund or expenses relating to the distribution of its
shares. Insurance Company shall pay the following expenses or costs:
a. Such amount of the production expenses of any Fund
materials, including the cost of printing the Fund's
Prospectus, or marketing materials for prospective
Insurance Company Contractholders and Participants as XXX
and Insurance Company shall agree from time
to time.
b. Distribution expenses of any Fund materials or marketing
materials for prospective Insurance Company Contractholders
and Participants.
c. Distribution expenses of Fund materials or marketing
materials for Insurance Company Contractholders and
Participants.
Except as provided herein and as may be reflected in each
Portfolio's net asset value per share, all other Fund expenses
shall not be borne by Insurance Company.
ARTICLE VI.
EXEMPTIVE RELIEF
6.1. Insurance Company has reviewed a copy of the Application For an Order
of Exemption pending before the Commission under Section 6(c) of the
Act and, in particular, has reviewed the conditions to the requested
relief set forth in the related Notice. As set forth therein,
Insurance Company agrees to report any potential or existing
conflicts promptly to the Board, and in particular whenever contract
voting instructions are disregarded, and recognizes that it will be
responsible for assisting the Board in carrying out its
responsibilities under such application. Insurance Company agrees to
carry out such responsibilities with a view to the interests of
existing Contractholders. Fund agrees to promptly inform Insurance
Company of any additional conditions, if any, imposed by the
Commission in its Order granting the requested relief.
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 the Fund, the Board
shall give prompt notice to all Participating Companies. If the Board
determines that Insurance Company is responsible for causing or
creating said conflict, 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 the Separate Account from the
Portfolios and reinvesting such assets in a different
investment medium, or submitting the question of whether
such segregation should be implemented to a vote or all
affected Contractholders; and/or
b. Establishing a new registered management investment company.
6.3 If a material irreconcilable conflict arises as a result of a
decision by Insurance Company to disregard Contractholder voting
instructions and said decision represents a minority position or
would preclude a majority vote by all Contractholders having an
interest in the Fund, Insurance Company may be required, at the
Board's election, to withdraw the Separate Account's investment in
the Fund.
6.4. For the purpose of this Article, a majority of the Disinterested
Board Members shall determine whether or not any proposed action
adequately remedies any irreconcilable material conflict, but in no
event will the 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 adversely affected by the
irreconcilable material conflict.
6.5. No action by Insurance Company taken or omitted, and no action by the
Separate Account or the 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 operation of, Article V.
ARTICLE VII.
VOTING OF FUND SHARES
7.1. Fund shall provide Insurance Company with copies at no cost to
Insurance Company, of the Fund's proxy material, reports to
shareholders and other communications to shareholders in such
quantity as Insurance Company shall reasonably require for
distributing to Contractholders or Participants.
Insurance Company shall:
a. solicit voting instructions from Contractholders or
Participants on a timely basis and in accordance
with applicable law;
b. vote Portfolio shares in accordance with instructions
received from Contractholders or Participants; and
c. vote Portfolio shares for which no instructions have been
received in the same proportion as Portfolio shares for
which instructions have been received.
Insurance Company agrees at all times to votes its General Account
shares in the same proportion as Portfolio shares for which
instructions have been received from Contractholders or Participants.
Insurance Company further agrees to be responsible for assuring that
voting Portfolio shares for the Separate Account is conducted in a
manner consistent with other Participating Companies.
7.2. Insurance Company agrees that it shall not, without the prior written
consent of the Fund and XXX, solicit, induce or encourage
Contractholders to (a) change or supplement the Fund's current
investment adviser or (b) change, modify, substitute, add to or
delete the Fund from the current investment media for the Contracts.
ARTICLE VIII.
MARKETING AND REPRESENTATIONS
8.1. The Fund or its underwriter shall periodically furnish Insurance
Company with the following documents, in quantities as Insurance
Company may reasonably request:
a. Current Prospectus and any supplements thereto;
b. other marketing materials.
Expenses for the production of such documents shall be
borne by Insurance Company in accordance with Section 5.2 of this
Agreement.
8.2. Insurance Company shall designate certain persons or entities which
shall have the requisite licenses to solicit applications for the
sale of Contracts. No representation is made as to the number or
amount of Contracts that are to be sold by Insurance Company.
Insurance Company shall make reasonable efforts to market
the Contracts and shall comply with all applicable federal and state
laws in connection therewith.
8.3. Insurance Company shall furnish, or shall cause to be furnished, to
the Fund, each piece of sales literature or other promotional
material in which the Fund, its investment adviser or the
administrator is named, at least fifteen Business Days prior to its
use. No such material shall be used unless the Fund approves such
material. Such approval (if given) must be in writing and shall be
presumed not given if not received within ten Business Days after
receipt of such material. The Fund shall use all reasonable efforts
to respond within ten days of receipt.
8.4. Insurance Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the
Fund or any Portfolio in connection with the sale of the Contracts
other than the information or representations contained in the
registration statement or Prospectus, as may be amended or
supplemented from time to time, or in reports or proxy statements for
the Fund, or in sales literature or other promotional material
approved by the Fund.
8.5. Fund shall furnish, or shall cause to be furnished, to Insurance
Company, each piece of the Fund's sales literature or other
promotional material in which Insurance Company or the Separate
Account is named, at least fifteen Business Days prior to its use. No
such material shall be used unless Insurance Company approves such
material. Such approval (if given) must be in writing and shall be
presumed not given if not received within ten Business Days after
receipt of such material. Insurance Company shall use all reasonable
efforts to respond within ten days of receipt.
8.6. Fund shall not, in connection with the sale of Portfolio shares, give
any information or make any representations on behalf of Insurance
Company or concerning Insurance Company, the Separate Account, or the
Contracts other than the information or representations contained in
a registration statement or prospectus for the Contracts, as may be
amended or supplemented from time to time, or in published reports
for the Separate Account which 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, registration statements, prospectuses,
statements of additional information, shareholder reports and proxy
materials, and any other material constituting sales literature or
advertising under National Association of Securities Dealers, Inc.
rules, the Act or the 1933 Act.
ARTICLE IX.
INDEMNIFICATION
9.1. Insurance Company agrees to indemnify and hold harmless the Fund,
XXX, any sub-investment adviser of a Portfolio, and their affiliates,
and each of their directors, trustees, general members, officers,
employees, agents and each person, if any, who controls or is
associated with any of the foregoing entities or persons within the
meaning of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section), against any and all losses, claims,
damages or liabilities joint or several (including any investigative,
legal and other expenses reasonably incurred in connection with, and
any amounts paid in settlement of, any action, suit or proceeding or
any claim asserted) for which the Indemnified Parties may become
subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect to thereof) (i)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in information furnished by
Insurance Company for use in the registration statement or Prospectus
or sales literature or advertisements of the Fund or with respect to
the Separate Account or Contracts, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading; (ii) arise out of or as a result of conduct,
statements or representations (other than statements or
representations contained in the Prospectus and sales literature or
advertisements of the Fund) of Insurance Company or its agents, with
respect to the sale and distribution of Contracts for which Portfolio
shares are an underlying investment; (iii) arise out of the wrongful
conduct of Insurance Company or persons under its control with
respect to the sale or distribution of the Contracts or Portfolio
shares; (iv) arise out of Insurance Company's incorrect calculation
and/or untimely reporting of net purchase or redemption orders; or
(v) arise out of any breach by Insurance Company of a material term
of this Agreement or as a result of any failure by Insurance Company
to provide the services and furnish the materials or to make any
payments provided for in this Agreement. Insurance Company will
reimburse any Indemnified Party in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that with respect to clauses (i) and (ii) above
Insurance Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon any untrue statement or omission or alleged omission made
in such registration statement, prospectus, sales literature, or
advertisement in conformity with written information furnished to
Insurance Company by the Fund specifically for use therein. This
indemnity agreement will be in addition to any liability which
Insurance Company may otherwise have.
9.2. The Fund agrees to indemnify and hold harmless Insurance Company and
each of its directors, officers, employees, agents and each person,
if any, who controls Insurance Company within the meaning of the 1933
Act against any losses, claims, damages or liabilities to which
Insurance Company or any such director, officer, employee, agent or
controlling person may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) (1) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the registration statement or Prospectus or sales
literature or advertisements of the Fund; (2) arise out of or are
based upon the omission to state in the registration statement or
Prospectus or sales literature or advertisements of the Fund any
material fact required to be stated therein or necessary to make the
statements therein not misleading; or (3) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement or Prospectus or sales
literature or advertisements with respect to the Separate Account or
the Contracts and such statements were based on information provided
in writing to Insurance Company by the Fund specifically for use
therein; and the Fund will reimburse any legal or other expenses
reasonably incurred by Insurance Company or any such director,
officer, employee, agent or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Fund will not be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
omission or alleged omission made in such Registration Statement,
Prospectus, sales literature or advertisements in conformity with
written information furnished to the Fund by Insurance Company
specifically for use therein. This indemnity agreement will be in
addition to any liability which the Fund may otherwise have.
9.3. The Fund shall indemnify and hold Insurance Company harmless against
any and all liability, loss, damages, costs or expenses which
Insurance Company may incur, suffer or be required to pay due to the
Fund's (1) incorrect calculation of the daily net asset value,
dividend rate or capital gain distribution rate of a Portfolio; (2)
incorrect reporting of the daily net asset value, dividend rate or
capital gain distribution rate; and (3) untimely reporting of the net
asset value, dividend rate or capital gain distribution rate;
provided that the Fund shall have no obligation to indemnify and hold
harmless Insurance Company if the incorrect calculation or incorrect
or untimely reporting was the result of incorrect information
furnished by Insurance Company or information furnished untimely by
Insurance Company or otherwise as a result of or relating to a breach
of this Agreement by Insurance Company. In no event will the Fund be
liable for any consequential, incidental, special or indirect damages
resulting to Insurance Company hereunder.
9.4. Promptly after receipt by an indemnified party under this Article of
notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the
indemnifying party under this Article, notify the indemnifying party
of the commencement thereof. The omission to so notify the
indemnifying party will not relieve the indemnifying party from any
liability under this Article IX, except to the extent that the
omission results in a failure of actual notice to the indemnifying
party and such indemnifying party is damaged solely as a result of
the failure to give such notice. In case any such action is brought
against any indemnified party, and it notified the indemnifying party
of the commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it may wish, assume
the defense thereof, with counsel satisfactory to such indemnified
party, and to the extent that the indemnifying party has given notice
to such effect to the indemnified party and is performing its
obligations under this Article, the indemnifying party shall not be
liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, other than
reasonable costs of investigation. Notwithstanding the foregoing, in
any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent.
A successor by law of the parties 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 be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions
herein.
10.2. This Agreement shall terminate without penalty as to one or more
Portfolios at the option of the terminating party:
a. At the option of Insurance Company or the Fund at any time
from the date hereof upon 180 days' notice, unless a shorter
time is agreed to by the parties;
b. At the option of Insurance Company, if shares of any
Portfolio are not reasonably available to meet the
requirements of the Contracts as determined by Insurance
Company. Prompt notice of election to terminate shall be
furnished by Insurance Company, said termination to be
effective ten days after receipt of notice unless the Fund
makes available a sufficient number of shares to meet the
requirements of the Contracts within said ten-day period;
c. At the option of Insurance Company, upon the institution
of formal proceedings against the Fund by the
Commission, the National Association of Securities Dealers,
Inc. 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 Fund's ability to meet and perform the Fund's
obligations and duties hereunder. Prompt notice of election
to terminate shall be furnished by Insurance Company with
said termination to be effective upon receipt of notice;
d. At the option of the Fund, upon the institution of formal
proceedings against Insurance Company by the Commission, the
National Association of Securities Dealers, Inc. or any
other regulatory body, the expected or anticipated ruling,
judgment or outcome of which would, in the Fund's reasonable
judgment, materially impair Insurance Company's ability to
meet and perform Insurance Company's obligations
and duties hereunder. Prompt notice of election to
terminate shall be furnished by the Fund with said
termination to be effective upon receipt of notice;
e. At the option of the Fund, if the Fund shall determine, in
its sole judgment reasonably exercised in good faith, that
Insurance Company has suffered a material adverse change in
its business or financial condition or is the subject of
material adverse publicity and such material adverse change
or material adverse publicity is likely to have a material
adverse impact upon the business and operation of the Fund
or XXX, the Fund shall notify Insurance Company in writing
of such determination and its intent to terminate this
Agreement, and after considering the actions taken by
Insurance Company and any other changes in circumstances
since the giving of such notice, such determination of the
Fund shall continue to apply on the sixtieth (60th) day
following the giving of such notice, which sixtieth day
shall be the effective date of termination;
f. Upon termination of the Investment Management Agreement
between the Fund and XXX or its successors unless Insurance
Company specifically approves the selection of a new Fund
investment adviser. The Fund shall promptly furnish notice
of such termination to Insurance Company;
g. In the event Portfolio shares are not registered, issued or
sold in accordance with applicable federal law, or such law
precludes the use of such shares as the underlying
investment medium of Contracts issued or to be issued by
Insurance Company. Termination shall be effective
immediately upon such occurrence without notice;
h. At the option of the Fund upon a determination by the Board
in good faith that it is no longer advisable and in the best
interests of shareholders for the Fund to continue to
operate pursuant to this Agreement. Termination pursuant to
this Subsection (h) shall be effective upon notice by the
Fund to Insurance Company of such termination;
i. At the option of the Fund if the Contracts cease to qualify
as annuity contracts or life insurance policies, as
applicable, under the Code, or if the Fund reasonably
believes that the Contracts may fail to so qualify;
j. At the option of either party to this Agreement, upon
another party's breach of any material provision of this
Agreement;
k. At the option of the Fund, if the Contracts are not
registered, issued or sold in accordance with applicable
federal and/or state law; or
l. Upon assignment of this Agreement, unless made with the
written consent of the non-assigning party.
Any such termination pursuant to this Article X shall not affect the
operation of Article V of this Agreement. Any termination of this
Agreement shall not affect the operation of Article IX of this
Agreement.
10.3. Notwithstanding any termination of this Agreement pursuant to Section
10.2 hereof, the Fund and XXX may, at the option of the Fund,
continue to make available additional Portfolio shares for so long as
the Fund desires pursuant to the terms and conditions of this
Agreement as provided below, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred
to as "Existing Contracts"). Specifically, without limitation, if the
Fund or XXX 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 in the Portfolio, redeem investments in the Fund and/or
invest in the Fund 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, the Fund and XXX, as
promptly as is practicable under the circumstances, shall notify
Insurance Company whether XXX and the Fund will 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 the Fund or Insurance Company may terminate the Agreement, as
so continued pursuant to this Section 10.3, upon prior written notice
to the other party, such notice to be for a period that is reasonable
under the circumstances but, if given by the Fund, need not be for
more than six months.
ARTICLE XI.
AMENDMENTS
11.1. Any changes in the terms of this Agreement shall be made by agreement
in writing between Insurance Company and Fund.
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:
Fund: Lazard Retirement Series, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
with copies to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Notice shall be deemed to be given on the date of receipt by the
addresses as evidenced by the return receipt.
ARTICLE XIII.
MISCELLANEOUS
13.1. This Agreement has been executed on behalf of the Fund by the
undersigned officer of the Fund in his capacity as an officer of the
Fund.
ARTICLE XIV.
LAW
14.1 This Agreement shall be construed in accordance with the internal
laws of the State of New York, without giving effect to principles of
conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
[NAME OF INSURANCE COMPANY]
By:______________________
Attest:_____________________
LAZARD RETIREMENT SERIES, INC.
By:_________________________
Attest:_____________________
SCHEDULE 1
NAME OF PORTFOLIO
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
