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