EX-99.(e)
DISTRIBUTION AGREEMENT
AGREEMENT made this 5th day of May, 2005, between Lazard Retirement
Series, Inc., a Maryland corporation (the "Fund"), and Lazard Asset Management
Securities LLC, a New York limited liability company (the "Distributor").
W I T N E S S E T H:
WHEREAS, the Fund is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), authorized to reclassify and issue any unissued shares to any number of
additional classes or series, each having its own investment objective, policies
and restrictions (each such class to be hereinafter referred to as a
"Portfolio"), and it is in the interest of the Fund to offer the shares of each
Portfolio for sale continuously;
WHEREAS, the Fund and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of shares of $.001 par
value common stock of the Fund (the "Common Stock") representing interests in
each Portfolio, to commence after the effectiveness of the Fund's registration
statement filed pursuant to the Securities Act of 1933, as amended (the "1933
Act"), and the 1940 Act.
NOW, THEREFORE, the parties agree as follows:
Section 1. APPOINTMENT OF THE DISTRIBUTOR. The Fund hereby appoints the
Distributor as its exclusive agent to sell and to arrange for the sale of the
shares of Common Stock of each Portfolio, including both issued shares and
authorized but unissued shares, on the terms and for the period set forth in
this Agreement and the Distributor hereby accepts such appointment and agrees to
act hereunder.
Section 2. SERVICES AND DUTIES OF THE DISTRIBUTOR.
(a) The Distributor agrees to sell, as agent for the Fund, from time to
time during the term of this Agreement, the Common Stock of each Portfolio upon
the terms described in the Prospectus. As used in this Agreement, the term
"Prospectus" shall mean the prospectus included as part of the Fund's
registration statement, as such Prospectus may be amended or supplemented from
time to time, and the term "Registration Statement" shall mean the Registration
Statement most recently filed from time to time by the Fund with the Securities
and Exchange Commission and effective under the 1933 Act and the 1940 Act, as
such Registration Statement is amended by any amendments thereto at the time in
effect.
(b) Upon the commencement of each Portfolio's operations, the
Distributor will hold itself available to receive orders, satisfactory to the
Distributor, for the purchase of shares of the Common Stock of the Portfolio and
will accept such orders on behalf of the Fund as of the time of receipt of such
orders and will transmit such orders as are so accepted to the Fund's transfer
and dividend disbursing agent as promptly as practicable. Purchase orders shall
be deemed effective at the time and in the manner set forth in the Prospectus.
(c) The offering price of shares of the Common Stock of each Portfolio
shall be the net asset value (as determined as set forth in the Prospectus) per
share of the Common Stock next determined following receipt of an order, plus
postage and other charges, if any, determined as set forth in the Prospectus.
The Fund shall furnish the Distributor, with all possible promptness, an advice
of each computation of the net asset value of each Portfolio.
(d) The Distributor shall not be obligated to sell any certain number
of shares of the Common Stock of any Portfolio and nothing herein contained
shall prevent the Distributor from entering into like distribution arrangements
with other investment companies so long as the performance of its obligations
hereunder is not impaired thereby.
(e) The Distributor is authorized on behalf of the Fund to purchase
shares of the Common Stock of any Portfolio presented to it by dealers at the
price determined in accordance with, and in the manner set forth in, the
Prospectus.
Section 3. DUTIES OF THE FUND.
(a) The Fund agrees to sell shares of the Common Stock of any Portfolio
so long as Common Stock is available for sale; and to deliver certificates for,
or cause the Fund's transfer and dividend disbursing agent to issue
non-negotiable share deposit receipts evidencing, such shares of Common Stock
registered in such names and amounts as the Distributor has requested in
writing, as promptly as practicable after receipt by the Fund of the net asset
value thereof and written request of the Distributor therefor.
(b) The Fund shall keep the Distributor fully informed with regard to
its affairs and shall furnish to the Distributor copies of all information,
financial statements and other papers which the Distributor may reasonably
request for use in connection with the distribution of shares of the Common
Stock of the Portfolios, and this shall include one certified copy, upon request
by the Distributor, of all financial statements prepared for the Fund by
independent accountants and such reasonable number of copies of its most current
Prospectus and annual and interim reports as the Distributor may request and
shall cooperate fully in the efforts of the Distributor to sell and arrange for
the sale of shares of the Common Stock of the Portfolios and in the performance
of the Distributor under this Agreement.
(c) The Fund shall take, from time to time, all necessary action to fix
the number of authorized shares of Common Stock and such steps, including
payment of the related filing fee, as may be necessary to register the same
under the 1933 Act to the end that there will be available for sale such number
of shares of Common Stock as the Distributor may be expected to sell. The Fund
agrees to file from time to time such amendments, reports and other documents as
may be necessary in order that there may be no untrue statement of a material
fact in the Registration Statement or Prospectus, or necessary in order that
there may be no omission to state a material fact in the Registration Statement
or Prospectus which omission would make the statements therein misleading.
Section 4. EXPENSES.
(a) The Fund shall bear all costs and expenses of the continuous
offering of its shares of Common Stock in connection with: (i) fees and
disbursements of its counsel and independent accountants; (ii) the preparation,
filing and printing of any Registration Statements and/or Prospectuses required
by and under the federal securities laws; and (iii) the preparation and mailing
of annual and interim reports, Prospectuses and proxy materials to stockholders.
(b) The Distributor shall bear (i) the costs and expenses of preparing,
printing and distributing any materials not prepared by the Fund and other
materials used by the Distributor in connection with its offering of shares of
Common Stock for sale to the eligible investors described in the Prospectus,
including the additional cost of printing copies of the Prospectus and of annual
and interim reports to stockholders other than copies thereof required for
distribution to stockholders or for filing with any federal securities
authorities, (ii) any expenses of advertising and promotion incurred by the
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Distributor in connection with such offering and (iii) the expenses of
registration or qualification of the Distributor as a broker or dealer under
federal or state laws and the expenses of continuing such registration or
qualification.
Section 5. INDEMNIFICATION.
(a) The Fund will indemnify and hold harmless the Distributor and each
person, if any, who controls the Distributor within the meaning of the 1940 Act
against any losses, claims, damages or liabilities to which the Distributor or
such controlling person may become subject, under the 1940 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Fund's Registration Statement,
Prospectus or any other written sales material prepared by the Fund which is
utilized by the Distributor in connection with the sale of shares of Common
Stock or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or (in the case of
the Registration Statement and Prospectus) necessary to make the statements
therein not misleading or (in the case of such other sales material) necessary
to make the statements therein not misleading in the light of the circumstances
under which they were made; and will reimburse the Distributor and each such
controlling person for any legal or other expenses reasonably incurred by the
Distributor or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Fund will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such Registration Statement or Prospectus in conformity with written information
furnished to the Fund by the Distributor specifically for use therein; and
PROVIDED, FURTHER, that nothing herein shall be so construed as to protect the
Distributor against any liability to the Fund or its security holders to which
the Distributor would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of its duties, or by reason of the
reckless disregard ("disabling conduct") by the Distributor of its obligations
and duties under this Agreement. This indemnity agreement will be in addition to
any liability which the Fund may otherwise have. Any indemnification hereunder
(unless ordered by a court) shall be made by the Fund only as authorized in the
specific case upon a determination that indemnification of the Distributor is
proper in the circumstances and that the Distributor is not liable by reason of
disabling conduct. Such determination shall be made (i) by the Board of
Directors, by a majority vote of a quorum which consists of Directors who are
neither "interested persons" of the Fund as defined in Section 2(a)(19) of the
1940 Act nor parties to the proceeding, or (ii) if the required quorum is not
obtainable or if a quorum of such Directors so directs, by independent legal
counsel in a written opinion.
(b) The Distributor will indemnify and hold harmless the Fund, each of
its directors and officers and each person, if any, who controls the Fund within
the meaning of the 1940 Act, against any losses, claims, damages or liabilities
to which the Fund or any such director, officer or controlling person may become
subject, under the 1940 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, Prospectus or any sales material not
prepared by the Fund which is utilized in connection with the sale of shares of
Common Stock 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 (in
the case of the Registration Statement and Prospectus) necessary to make the
statements therein not misleading or (in the case of such other sales material)
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, in the case of the Registration
Statement and Prospectus to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in conformity with written information furnished to the Fund by the Distributor
specifically for use therein; and the
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Distributor will reimburse any legal or other expenses reasonably incurred by
the Fund or any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which the
Distributor may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
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
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from liability
which it may have to any indemnified party otherwise than under this Section. In
case any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, to
assume the defense thereof, with counsel satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Section 6. COMPLIANCE WITH SECURITIES LAWS. The Fund represents that it
is registered as an open-end management investment company under the 1940 Act,
and agrees that it will comply with all of the provisions of the 1940 Act and of
the rules and regulations thereunder. The Fund and the Distributor each agree to
comply with all of the applicable terms and provisions of the 1940 Act and the
1933 Act. The Distributor agrees to comply with all of the applicable terms and
provisions of the Securities Exchange Act of 1934, as amended.
Section 7. SUSPENSION OF SALES. The Fund shall have the right to
suspend the sales of shares of the Common Stock of one or more Portfolios and
the authority of the Distributor to accept orders for shares of the Common Stock
of any such Portfolio if the Board of Directors of the Fund determines that it
is in the best interest of the Fund or the Portfolio to do so. In that event,
the Distributor may make such sales as are necessary to cover unconditional
orders accepted by it prior to the suspension.
Section 8. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement
shall continue in full force and effect until the earlier of (a) December 31,
2006 or (b) the first meeting of the shareholders of the Fund after the date
hereof. If approved at such meeting by the affirmative vote of a majority of the
outstanding voting securities of the Fund (as defined by the 1940 Act), this
Agreement shall continue in full force and effect from year to year thereafter
if such continuance is approved in the manner required by the 1940 Act and the
Distributor shall not have notified the Fund in writing at least 60 days prior
to the anniversary date of the previous continuance that it does not desire such
continuance. This Agreement may be terminated at any time, without payment of
penalty by the Fund, on 60 days' written notice to the Distributor by vote of
the Board of Directors of the Fund or by vote of a majority of the outstanding
voting securities of the Fund (as defined by the 1940 Act). This Agreement shall
automatically terminate in the event of its assignment (as defined by the 1940
Act).
Section 9. AMENDMENTS OF THIS AGREEMENT. This Agreement may be amended
by the parties only if such amendment is specifically approved by (i) the Board
of Directors of the Fund, and (ii) a majority of those Directors of the Fund who
are not parties to this Agreement or interested persons of any such party and
who have no direct or indirect financial interest in this Agreement, cast in
person at a meeting called for the purpose of voting on such approval. Section
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10. NOTICES. Any notice required to be given pursuant to this Agreement
shall be deemed duly given if delivered or mailed by registered mail, postage
prepaid, (l) to the Distributor at 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Secretary, or (2) to the Fund at 00 Xxxxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: President.
Section 11. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LAZARD ASSET MANAGEMENT SECURITIES LLC
By: _________________________________
LAZARD RETIREMENT SERIES, INC.
By: __________________________________
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