Exhibit (8)(n)(i)
FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 10th day of December, 1997, among Great
American Reserve Insurance Company ("Insurance Company"), a life insurance
company organized under the laws of the State of Indiana, LAZARD ASSET
MANAGEMENT ("XXX"), a division of Lazard Freres & Co. LLC, a New York limited
liability company, 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 Directors 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.
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. "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.
1.9. "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.
1.10. "Separate Account" shall mean (Organization Name) Company variable
Annuity Separate Account, a separate account established by Insurance
Company in accordance with the laws of the State of Indiana.
1.11. "Software Program" shall mean the software program used by the Fund
for providing Fund and account balance information including net asset
value per share.
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1.12. "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 Contracts currently
are and at the time of issuance will be treated as life insurance,
endowment or annuity contracts under applicable provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), that it will maintain such
treatment and that it will notify the 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.
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.
2.5. Fund represents that each Portfolio is currently qualified as a
Regulated Investment Company under Subchapter M of 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 any
Portfolio invested in by the Separate Account has ceased to so qualify or
that it might not so qualify in the future.
2.6. 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.
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2.7. 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 and to qualified
pension and retirement plans.
2.8. 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.
2.9. 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.
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 make the net asset value per share of the Portfolios
available to Insurance Company on a daily basis as soon as reasonably
practicable after the net asset value per share is calculated but shall use
its best efforts to make such net asset value available by 6:30 p.m.
Eastern time. If the 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,
shall be entitled to an adjustment to the number of shares purchased or
redeemed to reflect the correct net asset value per share. Any material
error in the calculation of net asset value per share,
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dividend or capital gain information shall be reported promptly upon
discovery to Insurance Company.
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 [9:00] 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 [9:00] 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 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.
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3.9. If Insurance Company's order requests a net redemption resulting in a
payment of redemption proceeds to Insurance Company, the Fund shall use its
best efforts to wire the redemption proceeds to Insurance Company, except
as provided below, within three Business Days or, upon notice to Insurance
Company, such longer period as permitted by the Act or the rules, orders or
regulations thereunder. 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. If Insurance Company's order requests the application of redemption
proceeds from the redemption of Portfolio shares to the purchase of shares
of another Portfolio, the Fund shall so apply such proceeds the same
Business Day that Insurance Company transmits such order to the Fund.
3.10. Fund has the obligation to ensure that Portfolio shares are
registered with the Commission at all times.
3.11. 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.
3.12. Fund shall credit Insurance Company with the appropriate number of
shares.
3.13. 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. At least annually, the Fund or its designee shall provide Insurance
Company, free of charge, with as many copies of the Fund's current
Prospectuses as Insurance Company may reasonably request for distribution
to existing Contractholders and Participants. Fund or its designee shall
provide Insurance Company, at Insurance Company's expense, with as many
copies of the Fund's current Prospectuses as Insurance Company may
reasonably request for distribution to prospective purchasers of Contracts.
If requested by Insurance Company in lieu thereof, the Fund or its designee
shall provide such documentation (including a "camera ready" copy of the
Prospectuses as set in type or, at
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the request of Insurance Company, as a diskette in the form sent to the
financial printer) and other assistance as is reasonably necessary in order
for the parties hereto once a year (or more frequently if the Prospectuses
are supplemented or amended) to have the prospectus for the Contracts and
the Prospectuses printed together in one document.
4.3. Fund shall distribute to Insurance Company copies of the Fund's 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.
4.4. 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.
4.5. 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.
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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 Order of Exemption of the
Commission under Section 6(c) of the Act (the "Order") and, in particular,
has reviewed the conditions to the relief set forth in the related Notice.
As set forth in the Notice, 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.
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.
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
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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. Insurance Company will provide pass-through voting privileges to all
Contractholders or Participants as long as the Commission continues to
interpret the Act as requiring pass-through voting privileges for
Contractholders or Participants. Accordingly, Insurance Company, where
applicable, will vote shares of a Portfolio held in its Separate Account in
a manner consistent with voting instructions timely received from its
Contractholders or Participants. Insurance Company will be responsible for
assuring that the Separate Account calculates voting privileges in a manner
consistent with other Participating Companies. Insurance Company will 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 Act are
amended, or if Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 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 the 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.
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.
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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.
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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
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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 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.
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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 could, 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
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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 Insurance Company or the Fund, upon a party's
breach of any material provision of this Agreement, which breach
has not been cured to the satisfaction of the non-breaching
party within 10 days after written notice of such breach is
delivered to the breaching party;
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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 by the parties hereto.
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: Great American Reserve Insurance Company
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Fund: Lazard Retirement Series, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
XXX: Lazard Asset Management
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.
Great American Reserve Insurance Company
By: Signature
------------------------------------
Attest: Signature
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LAZARD RETIREMENT SERIES, INC.
By: Signature
-------------------------------------
Attest: Signature
--------------------
LAZARD ASSET MANAGEMENT,
a division of Lazard Freres & Co., LLC
By: Signature
--------------------------------
Attest: Signature
--------------------
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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
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