FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 11 day of January, 2000, among Conseco
Variable Insurance Company (Insurance Company), a life insurance company
organized under the laws of the State of Texas. LAZARD ASSET MANAGEMENT ("LAM"),
a division of Lazard Freres & Co. LLC, a New York limited liability company,
and LAZARD RETIREMENT SERIES, INC. (the "Fund"), a corporation organized under
the laws of the State of Maryland, with respect to the Fund's portfolios set
forth on Schedule 1 hereto, as such Schedule may be revised from time to time
(each, a "Portfolio").
ARTICLE I.
DEFINITIONS
1.1. "Act" shall mean the Investment Company Act of 1940, as amended.
1.2. "Board" shall mean the Board of Directors of the Fund having the
responsibility for management and control of the Fund.
1.3. "Business Day" shall mean any day for which the Fund calculates
net asset value per share as described in the Fund's Prospectus.
1.4. "Commission" shall mean the Securities and Exchange Commission.
1.5. "Contract" shall mean a variable annuity contract and/or
variable life contract that uses the Fund as an underlying investment
medium. Individuals who participate under a group Contract are
"Participants."
1.6. "Contractholder" shall mean any entity that is a party to a
Contract with a Participating Company.
1.7. "Disinterested Board Members" shall mean those members of the
Board that are not deemed to be "interested persons" of the Fund, as
defined by the Act.
1.8. "Participating Companies" shall mean any insurance company
(including Insurance Company), which offers variable annuity and/or
variable life insurance contracts to the public and which has entered
into an agreement with the Fund for the purpose of making Fund shares
available to serve as the underlying investment medium for the aforesaid
Contracts.
1.9. "Prospectus" shall mean the Fund's current prospectus and
statement of additional information, as most recently filed with the
Commission, with respect to the Portfolios.
1.10. "Separate Account" shall mean Conseco Variable Accounts C, E, F,
G & H and Conseco Variable Life Account A, separate accounts established
by Insurance Company in accordance with the laws of the State of Texas.
1.11. "Software Program" shall mean the software program used by the
Fund for providing Fund and account balance information including net
asset value per share.
1.12. "Insurance Company's General Account(s)" shall mean the general
account(s) of Insurance Company and its affiliates which invest in the
Fund.
ARTICLE II.
REPRESENTATIONS
2.1. Insurance Company represents and warrants that (a) it is an
insurance company duly organized and in good standing under applicable
law; (b) it has legally and validly established the Separate Account
pursuant to the Texas Insurance Code for the purpose of offering to the
public certain individual variable annuity contracts; (c) it has
registered the Separate Account as a unit investment trust under the Act
to serve as the segregated investment account for the Contracts; and (d)
each Separate Account is eligible to invest in shares of the Fund
without such investment disqualifying the Fund as an investment medium
for insurance company separate accounts supporting variable annuity
contracts or variable life insurance contracts.
2.2. Insurance Company represents and warrants that (a) the Contracts
will be described in a registration statement filed under the Securities
Act of 1933. as amended ("1933 Act"); (b) the Contracts will be issued
and sold in compliance in all material respects with all applicable
federal and state laws; and (c) the sale of the Contracts shall comply
in all material respects with state insurance law requirements.
Insurance Company agrees to inform the Fund promptly of any investment
restrictions imposed by state insurance law and applicable to the Fund.
2.3. Insurance Company represents and warrants that the Contracts
currently are and at the time of issuance will be treated as life
insurance, endowment or annuity contracts under applicable provisions of
the Internal Revenue Code of 1986, as amended (the "Code"), that it will
maintain such treatment and that it will notify the Fund immediately
upon having a reasonable basis for believing that the Contracts have
ceased to be so treated or that they might not be so treated in the
future.
2.4. Fund represents that the Fund is registered with the Commission
under the Act as an open-end, management investment company and
possesses, and shall maintain, all legal and regulatory licenses,
approvals, consents and/or exemptions required for the Fund to operate
and offer its shares as an underlying investment medium for
Participating Companies.
2.5. Fund represents that each Portfolio is currently qualified as a
Regulated Investment Company under Subchapter M of the Code, and that it
will make every effort to maintain such qualification (under Subchapter
M or any successor or similar provision) and that it will notify
Insurance Company immediately upon having a reasonable basis for
believing that any Portfolio invested in by the Separate Account has
ceased to so qualify or that it might not so qualify in the future.
2.6. Fund agrees that each Portfolio's assets shall be managed and
invested in a manner that complies with the requirements of Section
817(h) of the Code.
2.7. Insurance Company agrees that the Fund shall be permitted
(subject to the other terms of this Agreement) to make the Portfolios'
shares available to other Participating Companies and contractholders
and to qualified pension and retirement plans.
2.8. Fund represents and warrants that any of its directors,
officers, employees, investment advisers, and other individuals/entities
who deal with the money and/or securities of the Fund are and shall
continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than
that required by Rule 17g-l under the Act. The aforesaid Bond shall
include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company.
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2.9 Insurance Company represents and warrants that all of its
employees and agents who deal with the money and/or securities of the
Fund are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage in an amount not less than the
coverage required to be maintained by the Fund. The aforesaid Bond shall
include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company.
ARTICLE III.
FUND SHARES
3.1. The Contracts funded through the Separate Account will provide
for the investment of certain amounts in the Portfolios' shares.
3.2. Fund agrees to make the shares of its Portfolios available for
purchase at the then applicable net asset value per share by Insurance
Company and the Separate Account on each Business Day pursuant to rules
of the Commission. Notwithstanding the foregoing, the Fund may refuse to
sell the shares of any Portfolio to any person, or suspend or terminate
the offering of the shares of any Portfolio if such action is required
by law or by regulatory authorities having jurisdiction or is, in the
sole discretion of the Board, acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws, necessary
and in the best interests of the shareholders of such Portfolio.
3.3. Fund agrees that shares of the Portfolios will be sold only to
Participating Companies, their separate accounts, the general accounts
of those Participating Companies and their affiliates and to qualified
pension and retirement plans. No shares of any Portfolio will be sold to
the general public.
3.4. Fund shall make the net asset value per share of the Portfolios
available to Insurance Company on a daily basis as soon as reasonably
practicable after the net asset value per share is calculated but shall
use its best efforts to make such net asset value available by 6:30 p.m.
Eastern time. If the Fund provides Insurance Company with materially
incorrect net asset value per share information through no fault of
Insurance Company, Insurance Company, on behalf of the Separate Account,
shall be entitled to an adjustment to the number of shares purchased or
redeemed to reflect the correct net asset value per share. Any material
error in the calculation of net asset value per share, dividend or
capital gain information shall be reported promptly upon discovery to
Insurance Company.
3.5. At the end of each Business Day, Insurance Company will use the
information described in Section 3.4 to calculate the Separate Account
unit values for the day. Using this unit value, Insurance Company will
process the day's Separate Account transactions received by it by the
close of trading on the floor of the New York Stock Exchange (currently
4:00 p.m. Eastern time) to determine the net dollar amount of Portfolio
shares which will be purchased or redeemed at that day's closing net
asset value per share for such Portfolio. The net purchase or redemption
orders will be transmitted to the Fund by Insurance Company by [9:00]
a.m. Eastern time on the Business Day next following Insurance Company's
receipt of that information. Subject to Sections 3.6 and 3.8, all
purchase and redemption orders for Insurance Company's General Accounts
shall be effected at the net asset value per share of the relevant
Portfolio next calculated after receipt of the order by the Fund or its
Transfer Agent.
3.6. Fund appoints Insurance Company as its agent for the limited
purpose of accepting orders
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for the purchase and redemption of shares of each Portfolio for the
Separate Account. Fund will execute orders for any Portfolio at the
applicable net asset value per share determined as of the close of
trading on the day of receipt of such orders by Insurance Company acting
as agent ("effective trade date"), provided that the Fund receives
notice of such orders by [9:00] a.m. Eastern time on the next following
Business Day and, if such orders request the purchase of Portfolio
shares, the conditions specified in Section 3.8, as applicable, are
satisfied. A redemption or purchase request for any Portfolio that does
not satisfy the conditions specified above and in Section 3.8, as
applicable, will be effected at the net asset value computed for such
Portfolio on the Business Day immediately preceding the next following
Business Day upon which such conditions have been satisfied.
3.7. Insurance Company will make its best efforts to notify Fund in
advance of any unusually large purchase or redemption orders.
3.8. If Insurance Company's order requests the purchase of Portfolio
shares, Insurance Company will pay for such purchases by wiring Federal
Funds to Fund or its designated custodial account on the day the order
is transmitted. Insurance Company shall make all reasonable efforts to
transmit to the Fund payment in Federal Funds by [12:00 noon] Eastern
time on the Business Day the Fund receives the notice of the order
pursuant to Section 3.5. Fund will execute such orders at the applicable
net asset value per share determined as of the close of trading on the
effective trade date if Fund receives payment in Federal Funds by [12:00
midnight] Eastern time on the Business Day the Fund receives the notice
of the order pursuant to Section 3.5. If payment in Federal Funds for
any purchase is not received or is received by the Fund after [12:00
noon] Eastern time on such Business Day, Insurance Company shall
promptly upon the Fund's request, reimburse the Fund for any charges,
costs, fees, interest or other expenses incurred by the Fund in
connection with any advances to, or borrowings or overdrafts by, the
Fund, or any similar expenses incurred by the Fund, as a result of
portfolio transactions effected by the Fund based upon such purchase
request.
3.9. If Insurance Company's order requests a net redemption resulting
in a payment of redemption proceeds to Insurance Company, the Fund shall
use its best efforts to wire the redemption proceeds to Insurance
Company, except as provided below, within three Business Days or, upon
notice to Insurance Company, such longer period as permitted by the Act
or the rules, orders or regulations thereunder. If Insurance Company's
order requests the redemption of Portfolio shares valued at or greater
than $1 million, the Fund will wire such amount to Insurance Company
within seven days of the order. If Insurance Company's order requests
the application of redemption proceeds from the redemption of Portfolio
shares to the purchase of shares of another Portfolio, the Fund shall so
apply such proceeds the same Business Day that Insurance Company
transmits such order to the Fund.
3.10. Fund has the obligation to ensure that Portfolio shares are
registered with the Commission at all times.
3.11. Fund will confirm each purchase or redemption order made by
Insurance Company. Transfer of Portfolio shares will be by book entry
only. No share certificates will be issued to Insurance Company.
Insurance Company will record shares ordered from Fund in an appropriate
title for the corresponding account.
3.12. Fund shall credit Insurance Company with the appropriate number
of shares.
3.13. On each ex-dividend date of the Fund or, if not a Business Day,
on the first Business Day
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thereafter. Fund shall communicate to Insurance Company the amount of
dividend and capital gain, if any, per share of each Portfolio. All
dividends and capital gains of any Portfolio shall be automatically
reinvested in additional shares of the relevant Portfolio at the
applicable net asset value per share of such Portfolio on the payable
date. Fund shall, on the day after the payable date or, if not a
Business Day, on the first Business Day thereafter, notify Insurance
Company of the number of shares so issued.
ARTICLE IV.
STATEMENTS AND REPORTS
4.1. Fund shall provide monthly statements of account as of the end
of each month for all of Insurance Company's accounts by the fifteenth
(15th) Business Day of the following month.
4.2. At least annually, the Fund or its designee shall provide
Insurance Company, free of charge, with as many copies of the Fund's
current Prospectuses as Insurance Company may reasonably request for
distribution to existing Contractholders and Participants. Fund or its
designee shall provide Insurance Company, at Insurance Company's
expense, with as many copies of the Fund's current Prospectuses as
Insurance Company may reasonably request for distribution to prospective
purchasers of Contracts. If requested by Insurance Company in lieu
thereof, the Fund or its designee shall provide such documentation
(including a "camera ready" copy of the Prospectuses as set in type or,
at the request of Insurance Company, as a diskette in the form sent to
the financial printer) and other assistance as is reasonably necessary
in order for the parties hereto once a year (or more frequently if the
Prospectuses are supplemented or amended) to have the prospectus for the
Contracts and the Prospectuses printed together in one document.
4.3. Fund shall distribute to Insurance Company copies of the Fund's
proxy materials, notices, periodic reports and other printed materials
(which the Fund customarily provides to its shareholders) in quantities
as Insurance Company may reasonably request for distribution to each
Contractholder and Participant.
4.4. Fund will provide to Insurance Company at least one complete
copy of all registration statements, Prospectuses, reports, proxy
statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Fund or its shares,
contemporaneously with the filing of such document with the Commission
or other regulatory authorities.
4.5. Insurance Company will provide to the Fund at least one copy of
all registration statements, Prospectuses, reports, proxy statements,
sales literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any of
the above, that relate to the Contracts or the Separate Account,
contemporaneously with the filing of such document with the Commission.
ARTICLE V. EXPENSES
5.1. The charge to the Fund for all expenses and costs of the
Portfolios, including but not limited to management fees, administrative
expenses and legal and regulatory costs, will be made in the
determination of the relevant Portfolio's daily net asset value per
share.
5.2. Except as provided in this Article V and, in particular in the
next sentence, Insurance
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Company shall not be required to pay directly any expenses of the Fund
or expenses relating to the distribution of its shares. Insurance
Company shall pay the following expenses or costs:
a. Such amount of the production expenses of any Fund materials,
including the cost of printing the Fund's Prospectus, or
marketing materials for prospective Insurance Company
Contractholders and Participants as LAM and Insurance Company
shall agree from time to time.
b. Distribution expenses of any Fund materials or marketing
materials for prospective Insurance Company Contractholders and
Participants.
c. Distribution expenses of Fund materials or marketing materials
for Insurance Company Contractholders and Participants.
Except as provided herein and as may be reflected in each Portfolio's
net asset value per share, all other Fund expenses shall not be borne by
Insurance Company.
ARTICLE VI.
EXEMPTIVE RELIEF
6.1. Insurance Company has reviewed a copy of the Order of Exemption
of the Commission under Section 6(c) of the Act (the "Order") and, in
particular, has reviewed the conditions to the relief set forth in the
related Notice. As set forth in the Notice, Insurance Company agrees to
report any potential or existing conflicts promptly to the Board, and in
particular whenever contract voting instructions are disregarded, and
recognizes that it will be responsible for assisting the Board in
carrying out its responsibilities under such application. Insurance
Company agrees to carry out such responsibilities with a view to the
interests of existing Contractholders.
6.2. If a majority of the Board, or a majority of Disinterested Board
Members, determines that a material irreconcilable conflict exists with
regard to Contractholder investments in the Fund, the Board shall give
prompt notice to all Participating Companies. If the Board determines
that Insurance Company is responsible for causing or creating said
conflict, Insurance Company shall at its sole cost and expense, and to
the extent reasonably practicable (as determined by a majority of the
Disinterested Board Members), take such action as is necessary to remedy
or eliminate the irreconcilable material conflict. Such necessary action
may include, but shall not be limited to:
a. Withdrawing the assets allocable to the Separate Account from
the Portfolios and reinvesting such assets in a different
investment medium, or submitting the question of whether such
segregation should be implemented to a vote or all affected
Contractholders; and/or
b. Establishing a new registered management investment company.
6.3. If a material irreconcilable conflict arises as a result of a
decision by Insurance Company to disregard Contractholder voting
instructions and said decision represents a minority position or would
preclude a majority vote by all Contractholders having an interest in
the Fund, Insurance Company may be required, at the Board's election, to
withdraw the Separate Account's investment in the Fund.
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6.4. For the purpose of this Article, a majority of the Disinterested
Board Members shall determine whether or not any proposed action
adequately remedies any irreconcilable material conflict, but in no
event will the Fund be required to bear the expense of establishing a
new funding medium for any Contract. Insurance Company shall not be
required by this Article to establish a new funding medium for any
Contract if an offer to do so has been declined by vote of a majority of
the Contractholders materially adversely affected by the irreconcilable
material conflict.
6.5. No action by Insurance Company taken or omitted, and no action
by the Separate Account or the Fund taken or omitted as a result of any
act or failure to act by Insurance Company pursuant to this Article VI
shall relieve Insurance Company of its obligations under, or otherwise
affect the operation of, Article V.
ARTICLE VII.
VOTING OF FUND SHARES
7.1 Insurance Company will provide pass-through voting privileges to all
Contractholders or Participants as long as the Commission continues to
interpret the Act as requiring pass-through voting privileges for
Contractholders or Participants. Accordingly, Insurance Company, where
applicable, will vote shares of a Portfolio held in its Separate Account
in a manner consistent with voting instructions timely received from its
Contractholders or Participants. Insurance Company will be responsible
for assuring that the Separate Account calculates voting privileges in a
manner consistent with other Participating Companies. Insurance Company
will vote shares for which it has not received timely voting
instructions, as well as shares it owns, in the same proportion as it
votes those shares for which it has received voting instructions.
7.2 If and to the extent Rule 6e-2 and Rule 6e-3(T) under the Act are
amended, or if Rule 6e-3 is adopted, to provide exemptive relief from
any provision of the Act or the rules thereunder with respect to mixed
and shared funding on terms and conditions materially different from any
exemptions granted in the Order, then the Fund, and/or the Participating
Companies, as appropriate, shall take such steps as may be necessary to
comply with Rule 6e-2 and Rule 6e3(T), as amended, and Rule 6e-3, as
adopted, to the extent such Rules are applicable.
ARTICLE VIII.
MARKETING AND REPRESENTATIONS
8.1. The Fund or its underwriter shall periodically furnish Insurance
Company with the following documents, in quantities as Insurance Company
may reasonably request:
a. Current Prospectus and any supplements thereto;
b. other marketing materials.
Expenses for the production of such documents shall be borne by
Insurance Company in accordance with Section 5.2 of this Agreement.
8.2. Insurance Company shall designate certain persons or entities
which shall have the requisite licenses to solicit applications for the
sale of Contracts. No representation is made as to the number or amount
of Contracts that are to be sold by Insurance Company. Insurance Company
shall make reasonable efforts to market the Contracts and shall comply
with all applicable federal and state laws in connection therewith.
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8.3. Insurance Company shall furnish, or shall cause to be furnished.
to the Fund, each piece of sales literature or other promotional
material in which the Fund, its investment adviser or the administrator
is named, at least fifteen Business Days prior to its use. No such
material shall be used unless the Fund approves such material. Such
approval (if given) must be in writing and shall be presumed not given
if not received within ten Business Days after receipt of such material.
The Fund shall use all reasonable efforts to respond within ten days of
receipt.
8.4. Insurance Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the
Fund or any Portfolio in connection with the sale of the Contracts other
than the information or representations contained in the registration
statement or Prospectus, as may be amended or supplemented from time to
time, or in reports or proxy statements for the Fund, or in sales
literature or other promotional material approved by the Fund.
8.5. Fund shall furnish, or shall cause to be furnished, to Insurance
Company, each piece of the Fund's sales literature or other promotional
material in which Insurance Company or the Separate Account is named, at
least fifteen Business Days prior to its use. No such material shall be
used unless Insurance Company approves such material. Such approval (if
given) must be in writing and shall be presumed not given if not
received within ten Business Days after receipt of such material.
Insurance Company shall use all reasonable efforts to respond within ten
days of receipt.
8.6. Fund shall not, in connection with the sale of Portfolio shares,
give any information or make any representations on behalf of Insurance
Company or concerning Insurance Company, the Separate Account, or the
Contracts other than the information or representations contained in a
registration statement or prospectus for the Contracts, as may be
amended or supplemented from time to time, or in published reports for
the Separate Account which are in the public domain or approved by
Insurance Company for distribution to Contractholders or Participants,
or in sales literature or other promotional material approved by
Insurance Company.
8.7. For purposes of this Agreement, the phrase "sales literature or
other promotional material" or words of similar import include, without
limitation, advertisements (such as material published, or designed for
use, in a newspaper, magazine or other periodical, radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures or other public media), sales literature (such as any
written communication distributed or made generally available to
customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, or reprints or
excerpts of any other advertisement, sales literature, or published
article), educational or training materials or other communications
distributed or made generally available to some or all agents or
employees, registration statements, prospectuses, statements of
additional information, shareholder reports and proxy materials, and any
other material constituting sales literature or advertising under
National Association of Securities Dealers, Inc. rules, the Act or the
1933 Act.
ARTICLE IX.
INDEMNIFICATION
9.1. Insurance Company agrees to indemnify and hold harmless the
Fund, LAM, any subinvestment adviser of a Portfolio, and their
affiliates, and each of their directors, trustees, general members,
officers, employees, agents and each person, if any, who controls or is
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associated with any of the foregoing entities or persons within the
meaning of the 1933 Act (collectively" the "Indemnified Parties" for
purposes of this Section), against any and all losses, claims, damages
or liabilities joint or several (including any investigative, legal and
other expenses reasonably incurred in connection with, and any amounts
paid in settlement of, any action, suit or proceeding or any claim
asserted) for which the Indemnified Parties may become subject, under
the 1933 Act or otherwise, insofar as such losses. claims. damages or
liabilities (or actions in respect to thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in information furnished by Insurance Company
for use in the registration statement or Prospectus or sales literature
or advertisements of the Fund or with respect to the Separate Account or
Contracts, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; (ii) arise
out of or as a result of conduct, statements or representations (other
than statements or representations contained in the Prospectus and sales
literature or advertisements of the Fund) of Insurance Company or its
agents, with respect to the sale and distribution of Contracts for which
Portfolio shares are an underlying investment; (iii) arise out of the
wrongful conduct of Insurance Company or persons under its control with
respect to the sale or distribution of the Contracts or Portfolio
shares; (iv) arise out of Insurance Company's incorrect calculation
and/or untimely reporting of net purchase or redemption orders; or (v)
arise out of any breach by Insurance Company of a material term of this
Agreement or as a result of any failure by Insurance Company to provide
the services and furnish the materials or to make any payments provided
for in this Agreement. Insurance Company will reimburse any Indemnified
Party in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that with respect
to clauses (i) and (ii) above Insurance Company will not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
omission or alleged omission made in such registration statement,
prospectus, sales literature, or advertisement in conformity with
written information furnished to Insurance Company by the Fund
specifically for use therein. This indemnity agreement will be in
addition to any liability which Insurance Company may otherwise have.
9.2. The Fund agrees to indemnify and hold harmless Insurance Company
and each of its directors, officers, employees, agents and each person,
if any, who controls Insurance Company within the meaning of the 1933
Act against any losses, claims, damages or liabilities to which
Insurance Company or any such director, officer, employee, agent or
controlling person may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) (1) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the
registration statement or Prospectus or sales literature or
advertisements of the Fund; (2) arise out of or are based upon the
omission to state in the registration statement or Prospectus or sales
literature or advertisements of the Fund any material fact required to
be stated therein or necessary to make the statements therein not
misleading; or (3) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the
registration statement or Prospectus or sales literature or
advertisements with respect to the Separate Account or the Contracts and
such statements were based on information provided in writing to
Insurance Company by the Fund specifically for use therein; and the Fund
will reimburse any legal or other expenses reasonably incurred by
Insurance Company or any such director, officer, employee, agent or
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
the Fund will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an
untrue statement or omission or alleged omission made in such
Registration Statement, Prospectus, sales literature or advertisements
in conformity with written information
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furnished to the Fund by Insurance Company specifically for use therein.
This indemnity agreement will be in addition to any liability which the
Fund may otherwise have.
9.3. The Fund shall indemnify and hold Insurance Company harmless
against any and all liability, loss, damages, costs or expenses which
Insurance Company may incur, suffer or be required to pay due to the
Fund's (1) incorrect calculation of the daily net asset value, dividend
rate or capital gain distribution rate of a Portfolio; (2) incorrect
reporting of the daily net asset value, dividend rate or capital gain
distribution rate; and (3) untimely reporting of the net asset value,
dividend rate or capital gain distribution rate; provided that the Fund
shall have no obligation to indemnify and hold harmless Insurance
Company if the incorrect calculation or incorrect or untimely reporting
was the result of incorrect information furnished by Insurance Company
or information furnished untimely by Insurance Company or otherwise as a
result of or relating to a breach of this Agreement by Insurance
Company. In no event will the Fund be liable for any consequential,
incidental, special or indirect damages resulting to Insurance Company
hereunder.
9.4. Promptly after receipt by an indemnified party under this
Article of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Article, notify the indemnifying party of
the commencement thereof. The omission to so notify the indemnifying
party will not relieve the indemnifying party from any liability under
this Article IX, except to the extent that the omission results in a
failure of actual notice to the indemnifying party and such indemnifying
party is damaged solely as a result of the failure to give such notice.
In case any such action is brought against any indemnified party, and it
notified the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, assume the defense thereof, with counsel
satisfactory to such indemnified party, and to the extent that the
indemnifying party has given notice to such effect to the indemnified
party and is performing its obligations under this Article, the
indemnifying party shall not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof, other than reasonable costs of investigation.
Notwithstanding the foregoing, in any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent.
A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article IX.
ARTICLE X.
COMMENCEMENT AND TERMINATION
10.1. This Agreement shall be effective as of the date hereof and
shall continue in force until terminated in accordance with the
provisions herein.
10.2. This Agreement shall terminate without penalty as to one or more
Portfolios at the option
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of the terminating party:
a. At the option of Insurance Company or the Fund at any time from
the date hereof upon 180 days' notice, unless a shorter time is
agreed to by the parties;
b. At the option of Insurance Company, if shares of any Portfolio
are not reasonably available to meet the requirements of the
Contracts as determined by Insurance Company. Prompt notice of
election to terminate shall be furnished by Insurance Company,
said termination to be effective ten days after receipt of
notice unless the Fund makes available a sufficient number of
shares to meet the requirements of the Contracts within said
ten-day period;
c. At the option of Insurance Company, upon the institution of
formal proceedings against the Fund by the Commission, the
National Association of Securities Dealers, Inc. or any other
regulatory body, the expected or anticipated ruling, judgment or
outcome of which would, in Insurance Company's reasonable
judgment, materially impair the Fund's ability to meet and
perform the Fund's obligations and duties hereunder. Prompt
notice of election to terminate shall be furnished by Insurance
Company with said termination to be effective upon receipt of
notice;
d. At the option of the Fund, upon the institution of formal
proceedings against Insurance Company by the Commission, the
National Association of Securities Dealers, Inc. or any other
regulatory body, the expected or anticipated ruling, judgment or
outcome of which would, in the Fund's reasonable judgment,
materially impair Insurance Company's ability to meet and
perform Insurance Company's obligations and duties hereunder.
Prompt notice of election to terminate shall be furnished by the
Fund with said termination to be effective upon receipt of
notice;
e. At the option of the Fund, if the Fund shall determine, in its
sole judgment reasonably exercised in good faith, that Insurance
Company has suffered a material adverse change in its business
or financial condition or is the subject of material adverse
publicity and such material adverse change or material adverse
publicity is likely to have a material adverse impact upon the
business and operation of the Fund or LAM, the Fund shall notify
Insurance Company in writing of such determination and its
intent to terminate this Agreement, and after considering the
actions taken by Insurance Company and any other changes in
circumstances since the giving of such notice, such
determination of the Fund shall continue to apply on the
sixtieth (60th) day following the giving of such notice, which
sixtieth day shall be the effective date of termination;
f. Upon termination of the Investment Management Agreement between
the Fund and LAM or its successors unless Insurance Company
specifically approves the selection of a new Fund investment
adviser. The Fund shall promptly furnish notice of such
termination to Insurance Company;
g. In the event Portfolio shares are not registered, issued or sold
in accordance with applicable federal law, or such law precludes
the use of such shares as the underlying investment medium of
Contracts issued or to be issued by Insurance Company.
Termination shall be effective immediately upon such occurrence
without notice;
h. At the option of the Fund upon a determination by the Board in
good faith that it is no longer advisable and in the best
interests of shareholders for the Fund to continue to
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operate pursuant to this Agreement. Termination pursuant to this
Subsection (h) shall be effective upon notice by the Fund to
Insurance Company of such termination;
i. At the option of the Fund if the Contracts cease to qualify as
annuity contracts or life insurance policies. as applicable,
under the Code, or if the Fund reasonably believes that the
Contracts may fail to so qualify;
j. At the option of Insurance Company or the Fund, upon a party's
breach of any material provision of this Agreement, which breach
has not been cured to the satisfaction of the non-breaching
party within 10 days after written notice of such breach is
delivered to the breaching party;
k. At the option of the Fund, if the Contracts are not registered,
issued or sold in accordance with applicable federal and/or
state law; or
l. Upon assignment of this Agreement, unless made with the written
consent of the non-assigning party.
Any such termination pursuant to this Article X shall not affect the
operation of Article V of this Agreement. Any termination of this
Agreement shall not affect the operation of Article IX of this
Agreement.
10.3. Notwithstanding any termination of this Agreement pursuant to
Section 10.2 hereof, the Fund and LAM may, at the option of the Fund,
continue to make available additional Portfolio shares for so long as
the Fund desires pursuant to the terms and conditions of this Agreement
as provided below, for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, if the Fund or LAM so
elects to make additional Portfolio shares available, the owners of the
Existing Contracts or Insurance Company, whichever shall have legal
authority to do so, shall be permitted to reallocate investments in the
Portfolio, redeem investments in the Fund and/or invest in the Fund upon
the making of additional purchase payments under the Existing Contracts.
In the event of a termination of this Agreement pursuant to Section 10.2
hereof, the Fund and LAM, as promptly as is practicable under the
circumstances, shall notify Insurance Company whether LAM and the Fund
will continue to make Portfolio shares available after such termination.
If Portfolio shares continue to be made available after such
termination, the provisions of this Agreement shall remain in effect and
thereafter either the Fund or Insurance Company may terminate the
Agreement, as so continued pursuant to this Section 10.3, upon prior
written notice to the other party, such notice to be for a period that
is reasonable under the circumstances but, if given by the Fund, need
not be for more than six months.
ARTICLE XI.
AMENDMENTS
11.1. Any changes in the terms of this Agreement shall be made by
agreement in writing by the parties hereto.
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ARTICLE XII.
NOTICE
12.1. Each notice required by this Agreement shall be given by
certified mail, return receipt requested, to the appropriate parties at
the following addresses:
Insurance Company: Conseco Variable Insurance Company
11815 North Pennsylvania
Carmel, IN 46032
Attention: L. Gregory Gloeckner
Fund: Lazard Retirement Series, Inc.
30 Rockefeller Plaza
New York, New York 10020
Attention: William Butterly
LAM: Lazard Asset Management
30 Rockefeller Plaza
New York, New York 10020
Attention: Steven Swain
with copies to: Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
Attn: Stuart H. Coleman, Esq.
Notice shall be deemed to be given on the date of receipt by the
addresses as evidenced by the return receipt.
ARTICLE XIII.
MISCELLANEOUS
13.1. This Agreement has been executed on behalf of the Fund by the
undersigned officer of the Fund in his capacity as an officer of the
Fund.
ARTICLE XIV.
LAW
14.1. This Agreement shall be construed in accordance with the
internal laws of the State of New York, without giving effect to
principles of conflict of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
CONSECO VARIABLE INSURANCE
COMPANY
By: /s/
-----------------------------
Attest:
-----------------------------
LAZARD RETIREMENT SERIES, INC.
By: /s/ ROBERT P. MORGANTHAU
-----------------------------
Robert P. Morganthau
Managing Director
Attest: /S/
-----------------------------
LAZARD ASSET MANAGEMENT,
a division of Lazard Freres & Co., LLC
By: /s/ ROBERT P. MORGANTHAU
-----------------------------
Robert P. Morganthau
Managing Director
Attest:
-----------------------------
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SCHEDULE 1
NAME OF PORTFOLIO
Lazard Retirement Equity Portfolio
Lazard Retirement Small Cap Portfolio