Exhibit 99.(h)(1)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
THE LAZARD FUNDS, INC.
AND
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
Page
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1. Terms of Appointment and Duties.....................................1
2. Third Party Administrators for Defined Contribution Plans...........3
3. Fees and Expenses ..................................................4
4. Representations and Warranties of the Transfer Agent................5
5. Representations and Warranties of the Fund..........................6
6. Wire Transfer Operating Guidelines/Article 4A.......................6
7. Data Access and Proprietary Information.............................8
8. Indemnification ....................................................9
9. Standard of Care...................................................11
10. Confidentiality....................................................11
11. Covenants of the Fund and the Transfer Agent.......................12
12. Termination of Agreement...........................................12
13. Assignment and Third Party Beneficiaries...........................13
14. Subcontractors ....................................................13
15. Miscellaneous .................................................14
16. Additional Portfolios..............................................15
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 15th day of August, 2002, by and between THE LAZARD
FUNDS, INC., a Maryland corporation, having its principal office and place of
business at 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Fund"), and
BOSTON FINANCIAL DATA SERVICES, INC., a Massachusetts corporation having its
principal office and place of business at 0 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Fund currently offers shares in eleven (11) series, such series
shall be named in the attached Schedule A, which may be amended by the parties
from time to time (each such series, together with all other series subsequently
established by the Fund and made subject to this Agreement in accordance with
Section 16, being herein referred to as a "Portfolio," and collectively as the
"Portfolios"); and
WHEREAS, the Fund, on behalf of the Portfolios, desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent, custodian of certain
retirement plans and agent in connection with certain other activities, and the
Transfer Agent desires to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment and Duties
1.1 TRANSFER AGENCY SERVICES. Subject to the terms and conditions
set forth in this Agreement, the Fund, on behalf of the
Portfolios, hereby employs and appoints the Transfer Agent to
act, and the Transfer Agent agrees to act as, transfer agent
for the Fund's authorized and issued shares of its common
stock ("Shares"), dividend disbursing agent, custodian of
certain retirement plans and agent in connection with any
accumulation, open-account or similar plan provided to the
shareholders of record of each of the Portfolios
("Shareholders") and set out in the currently effective
prospectus and statement of additional information
("Prospectus") of the Fund on behalf of the applicable
Portfolio, including, without limitation, any periodic
investment plan or periodic withdrawal program. In accordance
with procedures established from time to time by agreement
between the Fund, on behalf of each of the Portfolios, as
applicable, and the Transfer Agent, the Transfer Agent agrees
that it will perform the following services:
(a) Receive for acceptance, orders and payment for the
purchase of Shares, and promptly deliver payment and
appropriate documentation thereof to the authorized custodian
of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number
of Shares and hold such Shares in the appropriate Shareholder
account;
(c) Receive for acceptance, redemption requests and redemption
directions and deliver the appropriate documentation thereof
to the Custodian;
(d) In respect to the transactions in items (a), (b) and (c)
above, the Transfer Agent may execute transactions directly
with financial institutions, securities dealers and other
industry professional authorized by the Fund or its
distributor;
(e) At the appropriate time as and when it receives monies
paid to it by the Custodian with respect to any redemption,
pay over or cause to be paid over in the appropriate manner
such monies as instructed by the redeeming Shareholders;
(f) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of the applicable
Portfolio;
(h) Maintain records of account for and advise the Fund and
its Shareholders as to the foregoing; and
(i) Record the issuance of Shares of the Fund and maintain
pursuant to Securities and Exchange Commission ("SEC") Rule
17Ad-10(e) a record of the total number of Shares of the Fund
which are authorized, based upon data provided to it by the
Fund, and issued and outstanding. The Transfer Agent shall
also provide the Fund on a regular basis with the total number
of Shares which are authorized and issued and outstanding and
shall have no obligation, when recording the issuance of
Shares, to monitor the issuance of such Shares or to take
cognizance of any laws relating to the issue or sale of such
Shares, which functions shall be the sole responsibility of
the Fund.
1.2 ADDITIONAL SERVICES. In addition to, and neither in lieu nor
in contravention of, the services set forth in the above
paragraph, the Transfer Agent shall perform the following
services:
(a) OTHER CUSTOMARY SERVICES. Perform the customary services
of a transfer agent, dividend disbursing agent, custodian of
certain retirement plans and, as relevant, agent in connection
with accumulation, open-account or similar plan (including
without limitation any periodic investment plan or periodic
withdrawal program), including but not limited to: maintaining
all Shareholder accounts, preparing Shareholder meeting lists,
mailing Shareholder proxy statements, Shareholder reports, and
Prospectuses to current Shareholders, withholding taxes on
U.S. resident and non-resident alien accounts, preparing and
filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders,
preparing and mailing confirmation forms and statements of
account to Shareholders for all purchases and redemptions of
Shares and other confirmable transactions in Shareholder
accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information;
(b) CONTROL BOOK (ALSO KNOWN AS "SUPER SHEET"). Maintain a
daily record and produce a daily report for the Fund of all
transactions and receipts and disbursements of money and
securities and deliver a copy of such report for the Fund for
each business day to the Fund
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no later than 9:00 AM Eastern Time, or such earlier time as
the Fund may reasonably require, on the next business day;
(c) "BLUE SKY" REPORTING. The Fund shall (i) identify to the
Transfer Agent in writing those transactions and assets to be
treated as exempt from blue sky reporting for each State; and
(ii) verify the establishment of transactions for each State
on the Transfer Agent's system prior to activation and
thereafter monitor the daily activity for each State. The
responsibility of the Transfer Agent for the Fund's blue sky
State qualification status is solely limited to the initial
establishment of transactions subject to blue sky compliance
by the Fund and providing a system which will enable the Fund
to monitor the total number of Shares sold in each State;
(d) NATIONAL SECURITIES CLEARING CORPORATION (THE "NSCC"). (i)
Accept and effectuate the registration and maintenance of
accounts through Networking and the purchase, redemption,
transfer and exchange of Shares in such accounts through
Fund/SERV (Networking and Fund/SERV being programs operated by
the NSCC on behalf of the NSCC'S participants, including the
Fund's distributor), in accordance with instructions
transmitted to and received by the Transfer Agent via
transmission from the NSCC on behalf of broker-dealers,
trusts, banks and TPAs (defined in Section 2.1 below)
participants which have been established by, or in accordance
with the instructions of the Fund on the dealer file
maintained by the Transfer Agent; (ii) issue instructions to
the Custodian for the settlement of transactions between the
Fund and NSCC (acting on behalf of its broker-dealer, trust,
bank and TPA participants); (iii) provide account and
transaction information from the Fund's records on DST
Systems, Inc. computer system TA2000 or its successor system
("TA2000 System") in accordance with the NSCC'S Networking and
Fund/SERV rules for those broker-dealers, trusts, banks and
TPAs; and (iv) maintain Shareholder accounts on the TA2000
System through Networking;
(e) RELATED SERVICES. Upon request of the Fund, provide
additional related services to enable the Fund to comply with
applicable requirements relating to abandoned property
escheatment (upon approval by the Fund regarding the out-of
pocket fee), garnishment orders, bankruptcy and divorce
proceedings, federal or state tax levies and summonses and
similar matters. Such services will be provided in accordance
with the Transfer Agent's written policies and procedures;
(f) NEW PROCEDURES. New procedures as to who shall provide
certain of these services in SECTION 1 may be established in
writing from time to time by agreement between the Fund and
the Transfer Agent. The Transfer Agent may at times perform
only a portion of these services and the Fund or its agent may
perform these services on the Fund's behalf.
2. THIRD PARTY ADMINISTRATORS FOR DEFINED CONTRIBUTION PLANS
2.1 The Fund may decide to make available to certain of its
customers a qualified plan program (the "Program"), pursuant
to which the customers ("Employers") may adopt certain plans
of deferred compensation ("Plan or Plans") for the benefit of
the individual Plan participant (the "Plan Participant"), such
Plan(s) being qualified under Section 401(a) of the Internal
Revenue Code of 1986, as amended, and administered by third
party administrators which may be plan administrators as
defined in the Employee
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Retirement Income Security Act of 1974, as amended ("TPA(s)").
2.2 In accordance with the procedures established in the Schedule
2.1 entitled "Third Party Administrator Procedures," as may be
amended by the Transfer Agent and the Fund from time to time
("Schedule 2.1"), the Transfer Agent shall:
(a) Treat Shareholder accounts established by the Plans in the
name of the trustees, Plans, TPAs or their nominees, as the
case may be, as omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of
the trustees, Plans, TPAs or their nominees as the trustee for
the benefit of the Plan; and
(c) Perform all services under SECTION 1 as transfer agent of
the Fund and not as a record-keeper for the Plans.
2.3 Transactions identified under SECTION 2 of this Agreement
shall be deemed exception services ("Exception Services") when
such transactions:
(a) Require the Transfer Agent to use methods and procedures
other than those usually employed by the Transfer Agent to
perform services under SECTION 1 of this Agreement;
(b) Involve the provision of information to the Transfer Agent
after the commencement of the nightly processing cycle of the
TA2000 System; or
(c) Require more manual intervention by the Transfer Agent,
either in the entry of data or in the modification or
amendment of reports generated by the TA2000 System, than is
usually required by non-retirement plan and pre-nightly
transactions.
3. FEES AND EXPENSES
3.1 FEE SCHEDULE. For the performance by the Transfer Agent
pursuant to this Agreement, the Fund agrees to pay the
Transfer Agent an annual maintenance fee for each Shareholder
account as set forth in the attached fee schedule ("Schedule
3.1"). Such fees and out-of-pocket expenses and advances
identified under SECTION 3.2 below may be changed from time to
time subject to mutual written agreement between the Fund and
the Transfer Agent.
3.2 OUT-OF-POCKET EXPENSES. In addition to the fee paid under
SECTION 3.1 above, the Fund agrees to reimburse the Transfer
Agent for out-of-pocket expenses including, but not limited
to, production of confirmation statements and investor
statements, banking fees, postage, forms, telephone, records
retention, microfilm, microfiche, customized programming /
enhancements that have been approved in advance by the Fund,
federal wire, transcripts, mailing and tabulating proxies, or
advances incurred by the Transfer Agent for the items set out
in Schedule 3.1 attached hereto. In addition, any other
expenses incurred by the Transfer Agent at the request or with
the consent of the Fund, will be reimbursed by the Fund.
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3.3 INVOICES. The Fund agrees to pay all fees and reimbursable
expenses within thirty (30) days following the receipt of the
respective billing notice, except for any fees or expenses
which are subject to good faith dispute. In the event of such
a dispute, the Fund may only withhold that portion of the fee
or expense subject to the good faith dispute. The Fund shall
notify the Transfer Agent in writing within twenty-one (21)
calendar days following the receipt of each billing notice if
the Fund is disputing any amounts in good faith. If the Fund
does not provide such notice of dispute within the required
time, the billing notice will be deemed accepted by the Fund.
The Fund shall settle such disputed amounts within five (5)
days of the day on which the parties agree on the amount to be
paid by payment of the agreed amount. If no agreement is
reached, then such disputed amounts shall be settled as may be
required by law or legal process.
3.4 COST OF LIVING ADJUSTMENT. Following three years from the date
of this Agreement (the "Initial Term"), unless the parties
shall otherwise agree and provided that the service mix and
volumes remain consistent as previously provided in the
Initial Term, the total fee for all services shall equal the
fee that would be charged for the same services based on a fee
rate (as reflected in a fee rate schedule) increased by the
percentage increase (not to exceed 3% for any year) for the
twelve-month period of such previous calendar year of the
Consumer Price Index for Urban Wage Earners and Clerical
Workers, for the Boston area, as published bimonthly by the
United States Department of Labor, Bureau of Labor Statistics,
or, in the event that publication of such index is terminated,
any successor or substitute index, appropriately adjusted,
acceptable to both parties.
4. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT
The Transfer Agent represents and warrants to the Fund that:
4.1 It is duly registered as a transfer agent pursuant to the
Securities Exchange Act of 1934, as amended.
4.2 It is a corporation duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
4.3 It is duly qualified to carry on its business in The
Commonwealth of Massachusetts.
4.4 It is empowered under applicable laws and by its Articles of
Organization and By-Laws to enter into and perform this
Agreement.
4.5 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
4.6 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
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5. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a corporation duly organized and existing and in good
standing under the laws of the State of Maryland.
5.2 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this
Agreement.
5.3 All corporate proceedings required by said Articles of
Incorporation and By-Laws have been taken to authorize it to
enter into and perform this Agreement.
5.4 It is an open-end investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
5.5 A registration statement under the Securities Act of 1933, as
amended is currently effective and will remain effective, and
appropriate state securities law filings have been made and
will continue to be made, with respect to all Shares of the
Fund being offered for sale.
6. WIRE TRANSFER OPERATING GUIDELINES/ARTICLE 4A OF THE UNIFORM COMMERCIAL
CODE
6.1 OBLIGATION OF SENDER. The Transfer Agent is authorized to
promptly debit the appropriate Fund account(s) upon the
receipt of a payment order in compliance with the selected
security procedure (the "Security Procedure") chosen for funds
transfer and in the amount of money that the Transfer Agent
has been instructed to transfer. The Transfer Agent shall
execute payment orders in compliance with the Security
Procedure and with the Fund instructions on the execution date
provided that such payment order is received by the customary
deadline for processing such a request, unless the payment
order specifies a later time. All payment orders and
communications received after the customary deadline will be
deemed to have been received on the next business day.
6.2 SECURITY PROCEDURE. The Fund acknowledges that the Security
Procedure it has designated on the Fund selection form was
selected by the Fund from security procedures offered by the
Transfer Agent. The Fund shall restrict access to confidential
information relating to the Security Procedure to authorized
persons as communicated to the Transfer Agent in writing. The
Fund must notify the Transfer Agent immediately if it has
reason to believe unauthorized persons may have obtained
access to such information or of any change in the Fund's
authorized personnel. The Transfer Agent shall verify the
authenticity of all Fund instructions according to the
Security Procedure.
6.3 ACCOUNT NUMBERS. The Transfer Agent shall process all payment
orders on the basis of the account number contained in the
payment order. In the event of a discrepancy between any name
indicated on the payment order and the account number, the
account number shall take precedence and govern.
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6.4 REJECTION. The Transfer Agent reserves the right to decline to
process or delay the processing of a payment order which (a)
is in excess of the collected balance in the account to be
charged at the time of the Transfer Agent's receipt of such
payment order; (b) if processed, would cause the Transfer
Agent, in the Transfer Agent's reasonable judgement, to exceed
any volume, aggregate dollar, network, time, credit or similar
limits which are applicable to the Transfer Agent; or (c) the
Transfer Agent, in good faith, is not satisfied that the
transaction has been properly authorized.
6.5 CANCELLATION OR AMENDMENT. The Transfer Agent shall use
reasonable efforts to act promptly on all authorized requests
to cancel or amend payment orders received in compliance with
the Security Procedure provided that such requests are
received in a timely manner affording the Transfer Agent
reasonable opportunity to act. However, the Transfer Agent
assumes no liability if the request for amendment or
cancellation cannot be satisfied notwithstanding the Transfer
Agent's reasonable efforts.
6.6 ERRORS. The Transfer Agent shall assume no responsibility for
failure to detect any erroneous payment order provided that
the Transfer Agent complies with the payment order
instructions as received, the Transfer Agent complies with the
Security Procedure and the Transfer Agent has no actual
knowledge that the payment order is erroneous. The Security
Procedure is established for the purpose of authenticating
payment orders only and not for the detection of errors in
payment orders.
6.7 INTEREST. The Transfer Agent shall assume no responsibility
for lost interest with respect to the refundable amount of any
unauthorized payment order, unless the Transfer Agent is
notified of the unauthorized payment order within thirty (30)
days of the Transfer Agent's delivery of the confirmation of
such order to the Fund.
6.8 ACH CREDIT ENTRIES/PROVISIONAL PAYMENTS. When the Fund
initiates or receives Automated Clearing House ("ACH") credit
and debit entries pursuant to these guidelines and the rules
of the National Automated Clearing House Association and the
New England Clearing House Association, the Transfer Agent
will act as an Originating Depository Financial Institution
and/or Receiving Depository Financial Institution, as the case
may be, with respect to such entries. Credits given by the
Transfer Agent with respect to an ACH credit entry are
provisional until the Transfer Agent receives final settlement
for such entry from the Federal Reserve Bank. If the Transfer
Agent does not receive such final settlement, the Fund agrees
that the Transfer Agent shall receive a refund of the amount
credited to the Fund in connection with such entry, and the
party making payment to the Fund via such entry shall not be
deemed to have paid the amount of the entry.
6.9 CONFIRMATION. Confirmation of the Transfer Agent's execution
of payment orders shall ordinarily be provided within twenty
four (24) hours, notice of which may be delivered through the
Transfer Agent's proprietary information systems, or by
facsimile or call-back. The Fund must report any objections to
the execution of an order within thirty (30) days of the
delivery of the confirmation of such order to the Fund.
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7. DATA ACCESS AND PROPRIETARY INFORMATION
7.1 The Fund acknowledges that the databases, computer programs,
screen formats, report formats, interactive design techniques,
and documentation manuals furnished to the Fund by the
Transfer Agent as part of the Fund's ability to access certain
Fund-related data ("Customer Data") maintained by the Transfer
Agent on databases under the control and ownership of the
Transfer Agent or other third party ("Data Access Services")
constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of
substantial value to the Transfer Agent or other third party.
In no event shall Proprietary Information be deemed Customer
Data. The Fund agrees to treat all Proprietary Information as
proprietary to the Transfer Agent and further agrees that it
shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without
limiting the foregoing, the Fund agrees for itself and its
employees and agents to:
(a) Use such programs and databases (i) solely on the Fund's
computers, or solely from equipment at the location agreed to
between the Fund and the Transfer Agent; and (ii) materially
in accordance with the Transfer Agent's applicable user
documentation as advised by the Transfer Agent;
(b) Refrain from copying or duplicating in any way (other than
in the normal course of performing processing on the Fund's
computer(s)), the Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion
of the Proprietary Information, and if such access is
inadvertently obtained, to inform in a timely manner of such
fact and dispose of such information in accordance with the
Transfer Agent's instructions;
(d) Refrain from causing or allowing Proprietary Information
transmitted from the Transfer Agent's computer to the Fund's
terminal to be retransmitted to any other computer terminal or
other device except as expressly permitted by the Transfer
Agent (such permission not to be unreasonably withheld);
(e) Allow the Fund to have access only to those authorized
transactions as agreed to between the Fund and the Transfer
Agent; and
(f) Honor all reasonable written requests made by the Transfer
Agent to protect at the Transfer Agent's expense the rights of
the Transfer Agent in Proprietary Information at common law,
under federal copyright law and under other federal or state
law.
7.2 Proprietary Information shall not include all or any portion
of any of the foregoing items that: (i) are or become publicly
available without breach of this Agreement; (ii) are released
for general disclosure by a written release by the Transfer
Agent; or (iii) are already in the possession of the receiving
party at the time of receipt without obligation of
confidentiality or breach of this Agreement.
7.3 The Fund acknowledges that its obligation to protect the
Transfer Agent's Proprietary Information is essential to the
business interest of the Transfer Agent and that the
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disclosure of such Proprietary Information in breach of this
Agreement would cause the Transfer Agent immediate,
substantial and irreparable harm, the value of which would be
extremely difficult to determine. Accordingly, the parties
agree that, in addition to any other remedies that may be
available in law, equity, or otherwise for the disclosure or
use of the Proprietary Information in breach of this
Agreement, the Transfer Agent shall be entitled to seek and
obtain a temporary restraining order, injunctive relief, or
other equitable relief against the continuance of such breach.
7.4 If the Fund notifies the Transfer Agent that any of the Data
Access Services do not operate in material compliance with the
most recently issued user documentation for such services, the
Transfer Agent shall endeavor in a timely manner to correct
such failure. Organizations from which the Transfer Agent may
obtain certain data included in the Data Access Services are
solely responsible for the contents of such data and the Fund
agrees to make no claim against the Transfer Agent arising out
of the contents of such third-party data, including, but not
limited to, the accuracy thereof. DATA ACCESS SERVICES AND ALL
COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN
CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE
BASIS. THE TRANSFER AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES
EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
7.5 If the transactions available to the Fund include the ability
to originate electronic instructions to the Transfer Agent in
order to: (i) effect the transfer or movement of cash or
Shares; or (ii) transmit Shareholder information or other
information, then in such event the Transfer Agent shall be
entitled to rely on the validity and authenticity of such
instruction without undertaking any further inquiry as long as
such instruction is undertaken in conformity with the Security
Procedure, and the Transfer Agent has no actual knowledge that
the payment order is not valid and authentic.
7.6 Each party shall take reasonable efforts to advise its
employees of their obligations pursuant to this Section 7. The
obligations of this SECTION shall survive any earlier
termination of this Agreement.
8. INDEMNIFICATION
8.1 The Transfer Agent shall not be responsible for, and the Fund
shall indemnify and hold the Transfer Agent harmless from and
against, any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liability ("Losses") arising out
of or attributable to:
(a) All actions of the Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement
(including the defense of any lawsuit in which the Transfer
Agent or affiliate is a named party), provided that such
actions are taken in good faith and without negligence or
willful misconduct;
(b) The Fund's lack of good faith, negligence or willful
misconduct in the performance of this Agreement;
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(c) The reasonable reliance upon, and any subsequent use of or
action taken or omitted, by the Transfer Agent, or its agents
or subcontractors on: (i) any information, records, documents,
data, stock certificates or services, which are received by
the Transfer Agent or its agents or subcontractors by machine
readable input, facsimile, CRT data entry, electronic
instructions or other similar means authorized by the Fund,
and which have been prepared, maintained or performed by the
Fund or any other person or firm on behalf of the Fund
including but not limited to any broker-dealer, TPA or
previous transfer agent; (ii) any instructions or requests of
the Fund or any of its officers; (iii) any instructions or
opinions of legal counsel with respect to any matter arising
in connection with the services to be performed by the
Transfer Agent under this Agreement which are provided to the
Transfer Agent after consultation with such legal counsel; or
(iv) any paper or document, reasonably believed to be genuine,
authentic, or signed by the proper person or persons,
providing, however, that the Losses are not arising out of or
attributable to the Transfer Agent's failure to act in
accordance with the standard of care set forth in Section 9 of
this Agreement;
(d) The offer or sale of Shares in violation of federal or
state securities laws or regulations requiring that such
Shares be registered or in violation of any stop order or
other determination or ruling by any federal or any state
agency with respect to the offer or sale of such Shares,
providing, however, that the Losses are not arising out of or
attributable to the Transfer Agent's failure to act in
accordance with the standard of care set forth in Section 9 of
this Agreement;
(e) The negotiation and processing of any checks including
without limitation for deposit into the Fund's demand deposit
account maintained by the Transfer Agent, providing, however,
that the Losses are not arising out of or attributable to the
Transfer Agent's failure to act in accordance with the
standard of care set forth in Section 9 of this Agreement; or
(f) Upon the Fund's request entering into any agreements
required by the NSCC for the transmission of Fund or
Shareholder data through the NSCC clearing systems, providing,
however, that the Losses are not arising out of or
attributable to the Transfer Agent's failure to act in
accordance with the standard of care set forth in Section 9 of
this Agreement.
8.2 In order that the indemnification provisions contained in this
SECTION 8 shall apply, upon the assertion of a claim for which
the Fund may be required to indemnify the Transfer Agent, the
Transfer Agent shall promptly notify the Fund of such
assertion, and shall keep the Fund advised with respect to all
developments concerning such claim. The Fund shall have the
option to participate with the Transfer Agent in the defense
of such claim or to defend against said claim in its own name
or in the name of the Transfer Agent. The Transfer Agent shall
in no case confess any claim or make any compromise in any
case in which the Fund may be required to indemnify the
Transfer Agent except with the Fund's prior written consent.
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8.3 The absence of any provision in this Agreement providing for
indemnification of the Fund by the Transfer Agent for breach
of this Agreement shall not limit the Fund's remedies, at law
or in equity, for any such breach.
9. STANDARD OF CARE
The Transfer Agent shall at all times act in good faith and in
compliance with applicable law and agrees to use its best
efforts within reasonable limits to ensure the accuracy of all
services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due
to errors, including encoding and payment processing errors,
unless said errors are caused by its negligence, bad faith, or
willful misconduct or that of its employees or agents. The
parties agree that any encoding or payment processing errors
shall be governed by this standard of care and Section 4-209
of the Uniform Commercial Code is superseded by SECTION 9 of
this Agreement. This standard of care also shall apply to
Exception Services, as defined in SECTION 2.3 herein, but such
application shall take into consideration the manual
processing involved in, and time sensitive nature of,
Exception Services.
10. CONFIDENTIALITY
10.1 The Transfer Agent and the Fund agree that they will not, at
any time during the term of this Agreement or after its
termination, reveal, divulge, or make known to any person,
firm, corporation or other business organization, any customer
or shareholder lists, trade secrets, cost figures and
projections, profit figures and projections, or any other
secret or confidential information whatsoever, whether of the
Transfer Agent or of the Fund, used or gained by the Transfer
Agent or the Fund during performance under this Agreement. The
Fund and the Transfer Agent further covenant and agree to
retain all such knowledge and information acquired during and
after the term of this Agreement respecting such lists, trade
secrets, or any secret or confidential information whatsoever
in trust for the sole benefit of the Transfer Agent or the
Fund, as applicable, and their successors and assigns. In the
event of breach of the foregoing by either party, the remedies
provided by SECTION 7.3 shall be available to the party whose
confidential information is disclosed (with respect to the
Fund, as if reference to the Fund and the Transfer Agent are
substituted for each other). The above prohibition of
disclosure shall not apply to the extent that the Transfer
Agent must disclose such data to its sub-contractor or a Fund
agent for purposes of providing services under this Agreement;
provided, however, that the Transfer Agent shall use its best
efforts to require such sub-contractors to agree that such
data be kept in the strictest confidence and used solely for
the purposes of performing this Agreement. The Transfer Agent
shall maintain physical, electronic and procedural safeguards
reasonably designed to protect the security, confidentiality
and integrity of , and to prevent unauthorized access to or
use of, such data.
10.2 In the event that any requests or demands are made of the
Transfer Agent by a third party for the inspection of the
Shareholder records of the Fund, other than request for
records of Shareholders pursuant to standard subpoenas
directed to the Transfer Agent from state or federal
government authorities (i.e., divorce and criminal actions)
that are handled in accordance with the Transfer Agent's
standard procedures, the Transfer Agent will notify the Fund,
unless prohibited by law or court order, and secure
instructions
11
from an authorized officer of the Fund as to such inspection.
The Transfer Agent expressly reserves the right, however, to
exhibit the Shareholder records to any person whenever it is
advised by counsel that it may be held liable for the failure
to exhibit the Shareholder records to such person or if
required by law or court order.
11. COVENANTS OF THE FUND AND THE TRANSFER AGENT
11.1 The Fund shall promptly furnish to the Transfer Agent the
following, to the extent the Fund has not already provided
such information to the Transfer Agent:
(a) A certified copy of the resolution of the Board of
Directors of the Fund authorizing the appointment of the
Transfer Agent and the execution and delivery of this
Agreement; and
(b) A copy of the Articles of Incorporation of the Fund and
all amendments thereto and a copy of the By-Laws of the Fund
and all amendments thereto in each case that may affect the
Transfer Agent's performance of this Agreement.
11.2 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund
for safekeeping of stock certificates, check forms and
facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such
certificates, forms and devices.
11.3 The Transfer Agent shall keep records relating to the services
to be performed hereunder, in the form and manner as it may
deem advisable. To the extent required by Section 31 of the
1940 Act and the rules thereunder, the Transfer Agent agrees
that all such records prepared or maintained by the Transfer
Agent relating to the services to be performed by the Transfer
Agent hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with
such Section and Rules, and will be surrendered promptly to
the Fund on and in accordance with its request.
11.4 The Transfer Agent will provide for back-up of its computer
files and data with respect to the Fund. The Transfer Agent
will maintain a comprehensive Disaster Recovery Plan and will
provide the Fund with a summary of its Disaster Recovery Plan
upon the reasonable request of the Fund.
11.5 The Transfer Agent shall continue in effect its current level
of insurance coverage, provided that such coverage is
available from a domestic insurance carrier at a reasonable
cost. The Transfer Agent shall provide the Fund with written
notice of any modification which decreases coverage or of any
termination of such coverage. Such notice shall be sent to the
Fund within ten (10) business days of the Transfer Agent's
receipt of notice of such modification or termination.
12. TERMINATION OF AGREEMENT
12.1 TERM. This Agreement may be terminated by either party upon
one hundred and twenty (120) days' written notice to the other
party.
12
12.2 CONFIDENTIAL INFORMATION. Upon termination of this Agreement,
each party shall return to the other party all copies of
confidential or proprietary materials or information received
from such other party hereunder, other than materials or
information required to be retained by such party under
applicable laws or regulations.
12.3 UNPAID INVOICES. The Transfer Agent may terminate this
Agreement immediately upon an unpaid invoice payable by the
Fund to the Transfer Agent being outstanding for more than
ninety (90) days, except with respect to any amount subject to
a good faith dispute within the meaning of SECTION 3.3 of this
Agreement.
12.4 BANKRUPTCY. Either party hereto may terminate this Agreement
by notice to the other party, effective at any time specified
therein, in the event that (a) the other party ceases to carry
on its business or (b) an action is commenced by or against
the other party under Title 11 of the United States Code or a
receiver, conservator or similar officer is appointed for the
other party and such suit, conservatorship or receivership is
not discharged within thirty (30) days.
13. ASSIGNMENT AND THIRD PARTY BENEFICIARIES
13.1 Except as provided in SECTION 14.1 below, neither this
Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the
other party. Any attempt to do so in violation of this Section
shall be void. Unless specifically stated to the contrary in
any written consent to an assignment, no assignment will
release or discharge the assignor from any duty or
responsibility under this Agreement.
13.2 Except as explicitly stated elsewhere in this Agreement,
nothing under this Agreement shall be construed to give any
rights or benefits in this Agreement to anyone other than the
Transfer Agent and the Fund, and the duties and
responsibilities undertaken pursuant to this Agreement shall
be for the sole and exclusive benefit of the Transfer Agent
and the Fund. This Agreement shall inure to the benefit of and
be binding upon the parties and their respective permitted
successors and assigns.
13.3 This Agreement does not constitute an agreement for a
partnership or joint venture between the Transfer Agent and
the Fund. Other than as provided in SECTION 14.1 and Schedule
1.2(f), neither party shall make any commitments with third
parties that are binding on the other party without the other
party's prior written consent.
14. SUBCONTRACTORS
14.1 The Transfer Agent may, without further consent on the part of
the Fund, subcontract for the performance hereof with (i) a
subsidiary of the Transfer Agent that is a duly registered as
a transfer agent or (ii) an affiliate of the Transfer Agent
that is duly registered as a transfer agent; provided,
however, that the Transfer Agent shall be as fully responsible
to the Fund for the acts and omissions of its subsidiary or
affiliate as it is for its own acts and omissions.
13
14.2 Nothing herein shall impose any duty upon the Transfer Agent
in connection with or make the Transfer Agent liable for, the
actions or omissions to act of unaffiliated third parties such
as, by way of example and not limitation, Airborne Services,
Federal Express, United Parcel Service, the U.S. mail, the
NSCC and telecommunication companies, provided, if the
Transfer Agent selected such company, the Transfer Agent shall
have exercised due care in selecting the same.
15. MISCELLANEOUS
15.1 AMENDMENT. This Agreement may be amended or modified by a
written agreement executed by both parties.
15.2 MASSACHUSETTS LAW TO APPLY. This Agreement shall be construed
and the provisions thereof interpreted under and in accordance
with the laws of The Commonwealth of Massachusetts.
15.3 FORCE MAJEURE. In the event either party is unable to perform
its obligations under the terms of this Agreement because of
acts of God, acts of war or terrorism, strikes, equipment or
transmission failure or damage reasonably beyond its control,
or other causes reasonably beyond its control, such party
shall not be liable for damages to the other for any damages
resulting from such failure to perform or otherwise from such
causes. Notwithstanding the foregoing, each party agrees to
make a good faith effort to perform its obligations hereunder.
15.4 CONSEQUENTIAL DAMAGES. Neither party to this Agreement shall
be liable to the other party for special, indirect or
consequential damages under any provision of this Agreement or
for any special, indirect or consequential damages arising out
of any act or failure to act hereunder.
15.5 SURVIVAL. All provisions regarding indemnification, warranty
(other than in Sections 4 and 5), liability, and limits
thereon, and confidentiality and/or protections of proprietary
rights and trade secrets shall survive the termination of this
Agreement.
15.6 SEVERABILITY. If any provision or provisions of this Agreement
shall be held invalid, unlawful, or unenforceable, the
validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired.
15.7 PRIORITIES CLAUSE. In the event of any conflict, discrepancy
or ambiguity between the terms and conditions contained in
this Agreement and any Schedules or attachments hereto, the
terms and conditions contained in this Agreement shall take
precedence.
15.8 WAIVER. No waiver by either party or any breach or default of
any of the covenants or conditions herein contained and
performed by the other party shall be construed as a waiver of
any succeeding breach of the same or of any other covenant or
condition.
15.9 MERGER OF AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior
agreement with respect to the subject matter hereof whether
oral or written.
14
15.10 COUNTERPARTS. This Agreement may be executed by the parties
hereto on any number of counterparts, and all of said
counterparts taken together shall be deemed to constitute one
and the same instrument.
15.11 REPRODUCTION OF DOCUMENTS. This Agreement and all schedules,
exhibits, attachments and amendments hereto may be reproduced
by any photographic, photostatic, microfilm, micro-card,
miniature photographic or other similar process. The parties
hereto each agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial
or administrative proceeding, whether or not the original is
in existence and whether or not such reproduction was made by
a party in the regular course of business, and that any
enlargement, facsimile or further reproduction shall likewise
be admissible in evidence.
15.12 NOTICES. All notices and other communications as required or
permitted hereunder shall be in writing and sent by first
class mail, postage prepaid, addressed as follows or to such
other address or addresses of which the respective party shall
have notified the other.
(a) If to the Transfer Agent, to:
Boston Financial Data Services, Inc.
0 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Fax: 000- 000-0000
(b) If to the Fund, to:
Lazard Asset Management
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
General Counsel
Fax: 000-000-0000
16. ADDITIONAL PORTFOLIOS
In the event that the Fund establishes one or more series of Shares, in
addition to those listed on the attached Schedule A, with respect to
which it desires to have the Transfer Agent render services as transfer
agent under the terms hereof, it shall so notify the Transfer Agent in
writing, and if the Transfer Agent agrees in writing to provide such
services, such series of Shares shall become a Portfolio hereunder.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
BOSTON FINANCIAL DATA SERVICES, INC. THE LAZARD FUNDS, INC.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------ --------------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
------------------------------------ --------------------------------------
Title: Vice President Title: Treasurer
------------------------------------ --------------------------------------
Attest: /s/ Xxxxxx X. Xxxxxx Attest: /s/ Xxxxxxx St. Clair
------------------------------------ --------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx St. Clair
------------------------------------ --------------------------------------
16
SCHEDULE A
CLASS: INSTITUTIONAL
631 Lazard Equity Portfolio
632 Lazard International Equity Portfolio
634 Lazard Bond Portfolio
635 Lazard Strategic Yield Portfolio
636 Lazard Small Cap Portfolio
637 Lazard International Small Cap Portfolio
638 Lazard Emerging Markets Portfolio
641 Lazard Mortgage Portfolio
991 Lazard Mid Cap Portfolio
993 Lazard High Yield Portfolio
1160 Lazard International Equity Select Portfolio
CLASS: OPEN
645 Lazard Equity Portfolio
646 Lazard International Equity Portfolio
648 Lazard Bond Portfolio
649 Lazard Strategic Yield Portfolio
650 Lazard Small Cap Portfolio
651 Lazard International Small Cap Portfolio
652 Lazard Emerging Markets Portfolio
992 Lazard Mid Cap Portfolio
994 Lazard High Yield Portfolio
1161 Lazard International Equity Select Portfolio
BOSTON FINANCIAL DATA SERVICES, INC. THE LAZARD FUNDS, INC.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------ --------------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
------------------------------------ --------------------------------------
Title: Vice President Title: Treasurer
------------------------------------ --------------------------------------
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated ____________
1. For TPA(s) which receive, on behalf of and as agent of the Fund,
Instructions (as hereinafter defined) from Plans or Plan Participants,
as the case may be, the TPA(s) shall notify the Transfer Agent of the
net amount of purchases or redemptions, as the case may be, for each
omnibus account for Shares beneficially held by Plans ("Plan Accounts")
on the next succeeding day on which both the New York Stock Exchange
and the Fund are open for business (a "Business Day") following the
Trade Date on which the TPA(s) accepted Instructions for the purchase
and redemption of Shares ("(TD+1)"). Each Business Day on which the TPA
receives Instructions shall be a "Trade Date." In the case of net
purchases by any Plan Account, the TPA(s) shall arrange for the
transmission of the aggregate purchase price for Shares by wire
transfer to the Transfer Agent on (TD+1). In the case of net
redemptions by any Plan Account, the TPA(s) shall instruct the
Custodian regarding transmission of the aggregate redemption proceeds
for Shares by wire transfer on (TD+1). The times at which such
notification and transmission shall occur on (TD+1) shall be as
mutually agreed upon by the Fund or its agent and the TPA(s), as
acceptable to the Transfer Agent.
2. Instructions shall mean (a) orders in respect of Plan Accounts for the
purchases of Shares, and (b) requests in respect of Plan Accounts for
the redemption of Shares, in each case based on purchase orders and
redemption requests in respect of a Plan Account in proper form by the
time required by the terms of the Plan, but not later than the time of
day at which the net asset value of the Fund is calculated, as
described from time to time in the Fund's Prospectus (currently as of
the close of trading on the New York Stock Exchange (normally 4:00
p.m., Eastern time)).
3. The Fund and the Transfer Agent agree that responsibility for the
following matters shall be determined as between the Fund and the
TPA(s) by an agreement of such parties and in no event shall they be
deemed to be the responsibility of the Transfer Agent, except, in the
case of (a) - (d), (f) and (g), where a Plan is a record holder of
Shares:
(a) maintenance of separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the
date and price for all transactions, and Share balances;
(b) maintenance of records of all proceeds of redemptions of
Shares and all other distributions not reinvested in Shares;
(c) preparation, and transmission to each of the Plans, of
periodic account statements showing the total number of Shares
owned by that Plan as of the statement closing date, purchases
and redemptions of Shares by the Plan during the period
covered by the statement, and the dividends and other
distributions paid to the Plan on Shares during the statement
period (whether paid in cash or reinvested in Shares);
(d) transmission to the Plans of the Prospectuses, Shareholder
proxy materials, Shareholder reports, and other information
provided by the Fund for delivery to its Shareholders;
(e) preparation and transmission to each Fund, or any agent
designated by it, of such periodic reports covering Shares of
each Plan as each Fund shall reasonably conclude are necessary
to enable the Fund to comply with state Blue Sky requirements;
(f) transmission to the Plans of confirmation of purchase orders
and redemption requests placed by the Plans; and
(g) with respect to Shares, maintenance of account balance
information for the Plan(s) and daily and monthly purchase
summaries expressed in Shares and dollar amounts.
BOSTON FINANCIAL DATA SERVICES, INC. THE LAZARD FUNDS, INC.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------ --------------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
------------------------------------ --------------------------------------
Title: Vice President Title: Treasurer
------------------------------------ --------------------------------------
2
SCHEDULE 3.1
FEES
FEE TERM: AUGUST 15, 2002 THROUGH AUGUST 14, 2005
ANNUAL ACCOUNT SERVICE FEES
Per Open / Active Account Rate
0 -10,000 $19.75
10,000-25,000 $17.50
>25,000 $15.50
Closed Accounts $1.80
Redemption Fee Charge per account per year $2.00
Minimum Per Cusip
Open/Institutional $22,000.00
Fees are billable on a monthly basis at the rate of 1/12 of the annual fee. A
charge is made for an account in the month that an account opens or closes.
XXX CUSTODIAL FEE
Annual Maintenance $10.00 / account
OUT OF POCKET EXPENSES
Payment of out-of-pocket expenses shall be as set forth in Section 3.2 of the
Agreement.
BOSTON FINANCIAL DATA SERVICES, INC. THE LAZARD FUNDS, INC.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------ --------------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
------------------------------------ --------------------------------------
Title: Vice President Title: Treasurer
------------------------------------ --------------------------------------
