Ex 99.(m)(2)
LAZARD RETIREMENT SERIES, INC.
DISTRIBUTION AND SERVICING PLAN 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 assistance 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 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 for 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) We understand that the Fund's board will review, at least
quarterly, a written report of the amounts expended pursuant to this Agreement
and the purposes for which such expenditures were made.
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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.
(c) Each party will provide the other party with such information or
documentation necessary for the other party to fulfill its obligations hereunder
and such other information or documentation as each party may reasonably
request, and each party is entitled to rely on any written records or
instructions provided to it by the other party.
5. FEES. In consideration of the services described herein, we shall be
entitled to receive from you fees at the annual rate set forth opposite each
Portfolio's name 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 any payments pursuant to this
Agreement shall be paid only so long as this Agreement, the Fund's plan adopted
pursuant to Rule 12b-1 under the 1940 Act (the "Plan") 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");
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(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
(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 and, as to each Portfolio, this Agreement: (i)
shall continue until the last day of the calendar year of execution and
thereafter shall continue automatically for successive annual periods ending on
the last day of each calendar year, provided such continuance is approved at
least annually by a vote of a majority of the Fund's Board and the Board members
who are not "interested persons" (as defined in the 0000 Xxx) of the Fund and
have no direct or indirect financial interest in the operation of the Plan or
any agreement related to the 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); (iv) is terminable upon 15 days' notice
by you; and (v) will terminate automatically in the event of its assignment (as
defined in the 1940 Act).
(b) You shall have the right to terminate this Agreement, without
prior notice, if: (i) we or any of our registered principals become the subject
of any investigation or disciplinary action by any governmental, regulatory or
judicial authority that has resulted, or for which it appears reasonably likely
will result, in the loss or suspension of any required registration, membership
or license; (ii) our ability to perform our obligations under this Agreement has
become or is reasonably likely to become impaired; (iii) we otherwise breach any
of the representations, warranties or covenants set forth in this Agreement;
(iv) we fail to perform the services contemplated by this Agreement; or (v) the
Plan is terminated by the Fund's Board, or the 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. All communications to you shall be sent to you at the
address set forth above, attention: Lazard Asset Management Securities LLC,
Director, Legal Affairs. Any notice to us shall be duly given if delivered (via
hand delivery, commercial courier service or certified mail) or sent by
confirmed facsimile to us at the address or number set forth below.
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,
[COUNTERPARTY NAME
COUNTERPARTY ADDRESS
FAX NO.]
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
NAME OF PORTFOLIO ANNUAL PERCENTAGE RATE
%
SEPARATE ACCOUNTS AND CONTRACTS
SCHEDULE B
DISTRIBUTION AND SERVICING
We shall be responsible for:
1. providing distribution, advertising and marketing assistance to promote
Shares to Contractholders and prospective Contractholders in accordance
with this Agreement;
2. answering Contractholder and prospective Contractholder inquiries about
the Portfolios;
3. training Contractholder relationship personnel and sales agents;
4. establishing any appropriate information interfaces, which may include
websites and internal systems relating to the sale of Shares;
5. 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;
6. providing portfolio manager commentaries to Contractholders and other
interested parties;
7. 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;
8. providing such other information and services as you may reasonably
request, to the extent we are permitted by applicable statute, rule or
regulation; and
9. maintaining all other records as required by law.
