Exhibit 23(h)(3)
EXECUTED
EXECUTION COPY
ADMINISTRATION AGREEMENT
Agreement dated as of October 1, 2005 by and between State Street
Bank and Trust Company, a Massachusetts trust company (the "Administrator"),
and each of Laudus Trust and Laudus Variable Insurance Trust, each a
Massachusetts business trust (hereinafter each is referred to individually as
the "Trust").
WHEREAS, the Trust is registered as an open-end, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Trust desires to retain the Administrator to furnish
certain administrative services to the Trust, and the Administrator is willing
to furnish such services, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF ADMINISTRATOR
The Trust hereby appoints the Administrator to act as administrator
with respect to the Trust for purposes of providing certain administrative
services for the period and on the terms set forth in this Agreement. The
Administrator accepts such appointment and agrees to render the services stated
herein.
The Trust will initially consist of the portfolio(s) and/or
class(es) of shares (each an "Investment Fund") listed in Schedule A to this
Agreement. In the event that the Trust establishes one or more additional
Investment Funds with respect to which it wishes to retain the Administrator to
act as administrator hereunder, the Trust shall notify the Administrator in
writing. Upon written acceptance by the Administrator, such Investment Fund
shall become subject to the provisions of this Agreement to the same extent as
the existing Investment Funds, except to the extent that such provisions
(including those relating to the compensation and expenses payable by the Trust
and its Investment Funds) may be modified with respect to each additional
Investment Fund in writing by the Trust and the Administrator at the time of the
addition of the Investment Fund.
2. DELIVERY OF DOCUMENT
The Trust will promptly deliver to the Administrator copies of each
of the following documents and all future amendments and supplements, if any:
a. The Trust's Declaration and by-laws;
b. The Trust's currently effective registration statement under
the Securities Act of 1933, as amended (the "1933 Act"), and
the 1940 Act and the Trust's Prospectus(es) and Statement(s)
of Additional Information relating to all Investment Funds and
all amendments and supplements thereto as in effect from time
to time;
c. Certified copies of the resolutions of the Board of Trustees
of the Trust (the "Board") authorizing (1) the Trust to enter
into this Agreement and (2) certain individuals or entities on
behalf of the Trust to (a) give instructions to the
Administrator pursuant to this Agreement and (b) sign checks
and pay expenses ("Authorized Persons");
d. A copy of the investment advisory agreement between the Trust
and its investment adviser; and
e. Such other certificates, documents or opinions which the
Administrator reasonably believes to be necessary or
appropriate in the proper performance of its duties, subject
to the consent of Trust which shall not be unreasonably
withheld.
3. REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR
The Administrator represents and warrants to the Trust that:
a. It is a Massachusetts trust company, duly organized and
existing under the laws of The Commonwealth of Massachusetts;
b. It has the corporate power and authority to carry on its
business in The Commonwealth of Massachusetts;
c. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
d. No legal or administrative proceedings have been instituted or
threatened which would impair the Administrator's ability to
perform its duties and obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or
obligation of the Administrator or any law or regulation
applicable to it.
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4. REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to the Administrator that:
a. It is a business trust, duly organized, existing and in good
standing under the laws of Massachusetts;
b. It has the corporate power and authority under applicable laws
and by its charter and by-laws to enter into and perform this
Agreement;
c. All requisite proceedings have been taken to authorize it to
enter into and perform this Agreement;
d. It is an investment company duly registered under the 1940
Act;
e. A registration statement under the 1933 Act and the 1940 Act
has been filed and will be effective and remain effective
during the term of this Agreement. The Trust also warrants to
the Administrator that as of the effective date of this
Agreement, all necessary filings under the securities laws of
the states in which the Trust offers or sells its shares have
been made;
f. No legal or administrative proceedings have been instituted or
threatened which would impair the Trust's ability to perform
its duties and obligations under this Agreement;
g. Its entrance into this Agreement will not cause a material
breach or be in material conflict with any other agreement or
obligation of the Trust or any law or regulation applicable to
it; and
h. As of the close of business on the date of this Agreement, the
Trust is authorized to issue shares of beneficial interest,
and it will initially offer shares, in the authorized amounts
as set forth in Schedule A to this Agreement.
5. ADMINISTRATION SERVICES
The Administrator shall provide the services set forth on Schedule C
hereto (collectively, "Services"), subject to the control, supervision,
authorization and direction of the Trust and, in each case where appropriate,
the review and comment by the Trust's auditors and legal counsel and in
accordance with procedures which may be established from time to time between
the Trust and the Administrator.
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The Administrator shall perform such other services for the Trust
that are mutually agreed to by the parties from time to time in writing, for
which the Trust will pay such fees as may be mutually agreed upon in writing,
including the Administrator's reasonable out-of-pocket expenses which are
required to perform such other services. All such expenses in excess of $500
must be pre-approved by the Trust in writing and such approval shall not be
unreasonably withheld. The provision of such services shall be subject to the
terms and conditions of this Agreement:
6. FEES; EXPENSES; EXPENSE REIMBURSEMENT; DELEGATES
The Administrator shall receive from the Trust such compensation for
the Administrator's services provided pursuant to this Agreement as may be
agreed to from time to time in a written fee schedule approved by the parties
and initially set forth in the Fee Schedule to this Agreement. The fees are
accrued daily and billed monthly and shall be due and payable within thirty (30)
days of the Trust's receipt of the invoice. Upon the termination of this
Agreement before the end of any month, the fee for the part of the month before
such termination shall be prorated according to the proportion which such part
bears to the full monthly period and shall be payable within thirty (30) days
of termination of this Agreement. In addition, the Trust shall reimburse the
Administrator for its reasonable out-of-pocket costs which are required to
perform the services under this Agreement, All expenses in excess of $500 must
be pre-approved by the Trust in writing and such approval shall not be
unreasonably withheld. All rights of compensation and expense reimbursement
under this Agreement for services performed as of the termination date shall
survive the termination of this Agreement.
At no additional charge to the Trust, the Administrator shall
provide the office facilities, equipment, supplies, the personnel and other
items determined by it to perform the services contemplated herein. The Trust
agrees promptly to reimburse the Administrator for any equipment and supplies
specially ordered in writing by or for the Trust through the Administrator and
for any other reasonable expenses not contemplated by this Agreement that the
Administrator may incur on the Trust's behalf at the Trust's request or with
the Trust's consent. All such equipment, supplies and expenses must be
pre-approved by the Trust in writing and such approval shall not be unreasonably
withheld.
The Trust will bear all expenses that are incurred in its operation
and not assumed by the Administrator. Expenses to be borne by the Trust,
include, but are not limited to: the Trust's organizational expenses; cost of
services of independent accountants and the Trust's outside legal and tax
counsel (including such counsel's review of the Trust's registration statement,
proxy materials, federal and state tax qualification as a regulated investment
company and other reports and materials prepared by the Administrator under this
Agreement); cost of any services contracted for by the Trust directly from
parties other than the Administrator; cost of trading operations and brokerage
fees, commissions and transfer taxes in connection with the purchase and sale of
securities for the Trust; investment advisory fees; taxes, insurance premiums
applicable to the Trust's operation; costs incidental to any meetings of
shareholders (excluding costs specifically assumed by the Administrator)
including, but not limited to, the
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Trust's legal and accounting fees, proxy filing fees and the costs of printing
and mailing of any proxy materials; costs incidental to Board meetings
(excluding costs specifically assumed by the Administrator), including fees and
expenses of Board members; the salary and expenses of any officer, director/
trustee or employee of the Trust; costs of printing and distribution of the
Trust's registration statements and any amendments thereto and shareholder
reports; cost of typesetting and printing of prospectuses; cost of filing of the
Trust's tax returns, Form N-1A or N-2, Form N-CSR Form N-Q, Form N-PX and Form
N-SAR, and all notices, registrations and amendments associated with applicable
federal and state tax and securities laws; all applicable registration fees and
filing fees required under federal and state securities laws; the Trust's
fidelity bond and directors' and officers' liability insurance; and cost of
independent pricing services that have been approved by the Trust used in
computing the Investment Funds' net asset values.
The Administrator is authorized to and may employ or associate with
such person, persons, entity or entities as the Administrator may deem desirable
to assist it in performing its duties under this Agreement (collectively,
"Delegates"); provided, however; (1) Administrator may not delegate more fifty
percent of any Service to such Delegates without the prior written approval of
the Trust which shall not be unreasonably withheld; (2) Administrator shall pay
all compensation and expenses of such Delegates; and; (3) Administrator agrees
that as used in this paragraph, the references to Delegates applies only to the
provision of services by temporary workers or sub-contractors for the purpose of
handling short-term increases in Trust activity or short-term shortage of
Administrator personnel.
7. INSTRUCTIONS
At any time, the Administrator may apply to any officer of the Trust
or to independent accountants for the Trust for written instructions with
respect to any matter arising in connection with the services to be performed by
the Administrator under this agreement. Nothing in this paragraph shall be
construed as imposing upon the Administrator any obligation to seek
instructions, except to the extent. Administrator is required by law or the
other terms of this Agreement to obtain such instructions. Administrator shall
act in accordance with all such instructions, unless Administrator reasonable
believes that to do so would violate applicable law or the other terms of this
Agreement. Administrator shall provide written notice to the Trust of its
intention to not act on any instructions.
8. STANDARD OF CARE/LIMITATION OR LIABILITY AND INDEMNIFICATION
The Administrator shall, at all times, act in good faith and
exercise reasonable care in performing the Services, The Administrator shall be
responsible for the performance of only the Services and shall have no
responsibility for the actions or activities of any other party, including other
service providers. Notwithstanding the foregoing sentence, the Administrator
shall be fully responsible for the acts and omissions of such Delegates as
Administrator is for its own acts and omissions. The Administrator shall be
entitled to obtain, receive, rely on and act upon the advice of counsel for the
Trust on all matters. The Administrator shall be without
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liability for any action reasonably taken or omitted in good faith in accordance
with the advice of counsel for the Trust. For the avoidance of doubt, it is
hereby specifically understood and agreed that nothing in this section shall be
construed as imposing upon the Administrator any obligation to seek such advice
of counsel for the Trust.
The Administrator shall have no liability in respect of any loss,
damage or expense suffered by the Trust insofar as such loss, damage or expense
arises from the performance of the Administrator's duties hereunder in good
faith reliance upon records that were maintained for the Trust by entities other
than the Administrator prior to the Administrator's appointment as
administrator for the Trust. The Administrator shall have no liability for any
error of judgment or mistake of law or for any loss or damage resulting from the
performance or nonperformance of its duties hereunder except to the extent
caused by or resulting from the negligence, bad faith or willful misconduct of
the Administrator, its directors, officers, employees or Delegates (the
"Responsible Parties"). Neither party shall be liable to the other party for any
special, indirect, incidental, punitive or consequential damages, including lost
profits, of any kind whatsoever (including, without limitation, attorneys' fees)
under any provision of this Agreement or for any such damages arising out of any
act or failure to act hereunder, each of which is hereby excluded by agreement
of the parties regardless of whether such damages were foreseeable or whether
either party or any entity had been advised of the possibility of such damages.
In any event, for any liability or loss suffered by the Trust including, but not
limited to, any liability relating to qualification of the Trust as a regulated
investment company under the Internal Revenue Code of 1986, as amended, or any
liability relating to the Trust's compliance with any federal or state tax or
securities statute, regulation or ruling, the Administrator's liability under
this Agreement shall be limited to such amount as may be agreed upon from time
to time between the parties hereto.
The Administrator shall not be responsible or liable for any
failure or delay in performance of its obligations under this Agreement arising
out of or caused, directly or indirectly, by circumstances beyond its control
or, on an industry standard basis, its anticipation.
The Trust shall indemnify and hold the Administrator and its
directors, officers, employees and Delegates harmless from all loss, cost,
damage and expense, including reasonable fees and expenses for counsel
(collectively "Losses"), incurred by the Administrator resulting from any claim,
demand, action or suit (collectively "Claims") in connection with any action or
omission by the Administrator in the performance of its duties hereunder, or as
a result of acting upon any instructions reasonably believed by it to have been
communicated by Authorized Persons or upon reasonable reliance on information or
records given or made by the Trust or its investment adviser, provided that this
indemnification shall not apply to actions or omissions of the Responsible
Parties in cases of its or their own negligence, bad faith or willful
misconduct.
The indemnification contained herein shall survive the termination
of this Agreement.
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9. DISASTER RECOVERY AND BUSINESS CONTINUITY
The Administrator shall implement and maintain reasonable disaster
recovery and business continuity procedures that are reasonably designed to
recover data processing systems, data communications facilities, information,
data and other business related functions of the Administrator in a manner and
time frame consistent with legal, regulatory and business requirements
applicable to the Administrator in its provision of services hereunder. In the
event of any disaster which causes a business interruption, the Administrator
shall act in good faith and take reasonable steps to minimize service
interruptions.
10. SERVICE LEVEL DOCUMENTS
The Trust and the Administrator may from time to time, in good
faith, agree on certain performance measures by which the Administrator is
expected to provide the services contemplated by this Agreement ("Service Level
Documents"). The Service Level Documents are designed to provide metrics and
other information that can be utilized by the parties to help measure the
Administrator's performance. The parties agree the Service Level Documents
reflect performance measures as opposed to specific contractual obligations.
Notwithstanding, the parties agree that (1) Administrator's inability to achieve
such performance measures may give rise to grounds for termination pursuant to
Section 14; and (2) Administrator's performance and/or nonperformance of the
services, separate and apart from the performance measures in the Service Level
Documents, may give rise to any remedies tort or contract that the Trust may
assert against Administrator under the terms of this Agreement.
11. CONFIDENTIALITY
Definition of "Trust Confidential Information". The term "Trust
Confidential Information" means any information that Trust discloses, whether in
writing, electronically or orally, to Administrator whether in tangible or
intangible form which is identified as confidential at the time of disclosure or
which by the circumstances of disclosure or nature of the information would be
considered to be confidential. By way of example and not limitation, Trust
Confidential Information includes: (i) any information concerning Trust's, its
agents or licensors' technology, such as systems, source code, databases,
hardware, software, programs, applications, engine protocols, routines, models,
displays and manuals, including, without limitation, the selection,
coordination, and arrangement of the contents thereof; and (ii) any information
concerning Trust's, its agents or licensors' financial or business plans or
operations, such as research activities and plans, marketing or sales plans,
pricing or pricing strategies, operational techniques, internal controls,
compliance policies, methods of operation, security procedures, strategic plans,
customer information, and unpublished financial information, including
information concerning revenues, profits and profit margins. Administrator
agrees that Trust will have no obligation to specifically identify by any notice
or other action any information to which the protection of this Agreement
extends. Without limiting the foregoing, to the extent disclosed to the
Administrator, portfolio holdings information of the Trust shall be deemed to be
Confidential Information of the Trust until such time as such portfolio holdings
information shall made in a public filing by the Trust. The Administrator shall
not purchase or sell securities or
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other investments on the basis of confidential portfolio holdings information of
the Trust provided to the Administrator and shall take reasonable steps to
prevent any employee or agent of Administrator from purchasing or selling
securities or other investments on the same basis.
Restrictions on Use. Without the prior written consent of Trust,
Administrator will not use any portion of Trust Confidential Information for any
purpose other than for the services provided under this Agreement. Administrator
further agrees that:
(a) it will hold Trust Confidential Information of Trust in the
strictest confidence;
(b) it will exercise the same care with respect to Trust
Confidential Information as it exercises with respect to its
own proprietary and confidential information;
(c) it will not, without Trust's prior written consent, copy or
disclose to any third party any portion thereof;
(d) it will notify immediately Trust of any unauthorized
disclosure or use unless in and ownership of Trust
Confidential Information resulting from such unauthorized
disclosure or use by or through Administrator; and
(e) it will restrict dissemination of Trust Confidential
Information to only those persons within or related to its
organization who are involved in the delivery of services
provided under this Agreement to Administrator's regulatory
authorities as required to comply with such regulatory
authorities' request or order and to Administrator's
examiners, auditors, directors and legal counsel to the extent
Administrator believes the same is reasonably required
provided that Administrator makes reasonable efforts to notify
such parties as to the confidential nature of the Trust
Confidential.
Exceptions. The foregoing shall not prohibit or limit
Administrator's use, disclosure, reproduction or dissemination of Trust
Confidential Information which:
(a) is or becomes public domain information or material through no
fault or breach on the part of Administrator;
(b) as demonstrated by the written records of Administrator or
otherwise, was already lawfully known (without restriction on
disclosure) to Administrator prior to the information being
disclosed to Administrator by Trust or any representative of
Trust;
(c) has been or is hereafter rightfully furnished to Administrator
without restriction on disclosure by the Trust or a third
person lawfully in possession thereof;
(d) has been independently developed, by or for Administrator,
without reference to Trust Confidential Information;
(e) is requested or required to be disclosed pursuant to any legal
or regulatory proceeding, investigation, audit, examination,
subpoena, civil investigative demand or
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other similar process where required by law, regulation, rule
or self-regulatory organization rule, or where the
Administrator has determined that disclosure is necessary for
the protection of its interests, provided that, unless
prohibited from doing so in such circumstance, the
Administrator notifies the Trust as promptly as possible so
that Trust may to have a reasonable opportunity to obtain a
protective order or other form of protection against
disclosure. Notwithstanding any such disclosure by
Administrator, such disclosure will not otherwise affect
Administrator's obligations hereunder with respect to Trust
Confidential Information so disclosed which is retained by
Administrator; or
(f) is disclosed by the Administrator with the prior written
consent of the Trust, which consent shall not be unreasonably
withheld.
Any Trust Confidential Information in the possession of Administrator that has
been disclosed to it by Trust or any representative of Trust that is not within
any of the exceptions above shall be considered confidential unless the
Administrator may demonstrate otherwise by records and documentation or other
reasonable means.
Equitable Relief. Administrator agrees and acknowledges that any
breach of Section 11 may cause Trust irreparable harm for which monetary damages
would be inadequate. Accordingly, Trust will be entitled to seek injunctive or
other equitable relief to remedy any threatened or actual breach of Section 11
by Administrator, as well as monetary damages.
No Publicity. Neither party will announce or disclose the existence
of this Agreement, or its contents to any third party without the prior written
consent of the other or except as may be required by law, in which case the
party required to make such a disclosure will give the other party the maximum
feasible prior notice of such disclosure.
12. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS
The Trust assumes full responsibility for complying with all
securities, banking, tax, commodities and other laws, rules and regulations
applicable to it.
The Administrator assumes full responsibility for complying with all
applicable securities, banking, tax, commodities and other laws, rules and
regulations applicable to it in connection with and as applicable to its
provision of services hereunder.
In compliance with the requirements of Rule 3la-3 under the 1940
Act, the Administrator agrees that all records which it maintains for the Trust
shall at all times remain the property of the Trust, shall be readily accessible
during normal business hours, and shall be promptly surrendered upon the
termination of the Agreement or otherwise on written request. The Administrator
further agrees that all records which it maintains for the Trust pursuant to
Rule 3la-l under the 1940 Act will be preserved for the periods prescribed by
Rule 31a-2 under the 1940 Act unless any such records are earlier surrendered as
provided above. Records may be surrendered in either written or machine-readable
form.
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13. SERVICES NOT EXCLUSIVE
The services of the Administrator to the Trust are not to be deemed
exclusive, and the Administrator shall be free to render similar services to
others. The Administrator shall be deemed to be an independent contractor and
shall, unless otherwise expressly provided herein or authorized by the Trust
from time to time, have no authority to act or represent the Trust in any way or
otherwise be deemed an agent of the Trust.
14. TERM, TERMINATION AND AMENDMENT
(a) This Agreement shall become effective on the date of its
execution and shall remain in full force and effect for a
period of three (3) years from the effective date (the
"Initial Term"), and thereafter shall automatically continue
in full force and effect unless either party terminates this
Agreement by written notice to the other party at least ninety
(90) days prior to the date of termination.
(b) During the Initial Term and thereafter, the Administrator may,
at its discretion, terminate this Agreement for cause with
respect to (1) one or more Investment Funds; and/or (2) the
Trust in its entirety by providing not less than 60 days prior
written notice to the Trust upon occurrence of any of the
following termination events:
(A) Trust has been convicted, pled guilty or pled no
contest to criminal conduct in a criminal
proceeding;
(B) Trust has been found to have violated federal or
state law in an administrative or regulatory
proceeding; provided such violation (1) involves
unethical conduct; and (2) Administrator
reasonably believes that such violation would have
a material adverse impact on Administrator's
ability to the perform services under this
Agreement;
(C) Trust has encountered financial difficulties which
are evidenced by the authorization or commencement
of, or involvement by way of pleading, answer,
consent or acquiescence in, a voluntary or
involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or
any applicable law, other than said Title 11, of
any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification
or alteration of the rights of creditors;
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(D) Trust has been terminated for cause by the
Administrator pursuant to the terms of (1) any
fund accounting or custody agreement between
Administrator and Trust, or (2) any Fund
accounting, custody or administrative agreement
between Administrator and any other investment
company advised by Xxxxxxx Xxxxxx Investment
Management, Inc. ("CSIM");
(E) CSIM has been terminated for cause by the
Administrator pursuant to the terms of any
sub-administrative agreement between Administrator
and CSIM;
(F) Trust attempts to assign this Agreement in
violation of Section 16 of this Agreement; and
(G) Trust has committed a material breach of this
Agreement, and such breach has not been remedied
by the Trust within sixty days written notice of
such breach by Administrator.
(c) During the Initial Term and thereafter, Trust, at its
discretion, may terminate this agreement for cause with
respect to (1) one or more Investment Funds, and/or (2) the
Trust in its entirety by providing at least 60 days written
notice to Administrator upon the occurrence of any of the
following termination events:
(A) Administrator has been convicted, pled guilty or
pled no contest to criminal conduct in any criminal
proceeding in connection with the provision of
administration services, fund accounting services and/or
custody services to any client;
(B) Administrator has been found to have violated
federal or state law in any administrative or regulatory
proceeding; provided such violation (1) involves
unethical behavior and (2) relates to the provision of
administration services, fund accounting services and/or
custody services to any client;
(C) Administrator has encountered financial difficulties
which are evidenced by the authorization or commencement
of, or involvement by way of pleading, answer, consent
or acquiescence in, a voluntary or involuntary case
under Title 11 of the United States Code, as from time
to time is in effect, or any applicable law, other than
said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors;
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(D) Administrator has been terminated by the Trust for
cause pursuant to the terms of (1) any fund accounting
or custody agreement between Administrator or its
affiliates and Trust, or (2) any fund Accounting,
custody or administrative agreement between
Administrator or its affiliates and any investment
company (other than Trust) advised by CSIM;
(E) Administrator has been terminated by CSIM for cause
pursuant to the terms of any sub-administrative
agreement between Administrator and or its affiliates
and CSIM;
(F) Administrator transfers fifty percent (50%) or more
of any class of its voting securities; (2) transfers
all, or substantially all, of its assets to a
non-affiliate; or (3) attempts to assign this Agreement
in violation of Section 16 of this Agreement; and
(G) In Trust's reasonable opinion, Administrator has not
achieved one or more of the performance measures set
forth in any Service Level Document established pursuant
to Section 10 of this Agreement, and a plan or revised
plan has not been put into place in accordance with the
following procedures: In the event that Trust reasonably
believes that the Administrator has not met one or more
of the performance measures set forth in any Service
Level Document during any calendar quarter or other
period of measurement as may be set forth in any Service
Level Document, the Trust may, in its discretion, submit
a written deficiency notice to Administrator outlining
the performance deficiencies ("Deficiency Notice"). Such
Deficiency Notice must be provided to Administrator
within 20 days of the end of such quarter. After receipt
of such notice, Administrator shall present the Trust
with a written plan to address the deficiencies set
forth in the Deficiency Notice (the "Plan"). Such Plan
must be provided to Trust within 30 days after receipt
of the Deficiency Notice. If Administrator fails to
submit a Plan within such 30 day period, Trust may
terminate the Agreement upon 60 days written notice to
Administrator. The Trust, in its discretion, may accept
the Plan or reject the Plan ("Rejection Notice"). Such
Rejection Notice must be submitted to Administrator
within 15 days after submission of the Plan. If Trust
fails to provide a Rejection Notice within such 15 day
period, it shall be presumed that Trust accepted the
Plan. In the event, Trust submits a Rejection Notice,
Administrator shall submit a revised plan ("Revised
Plan") to the Trust. Such Revised Plan must be
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provided to Trust within 30 after provision of the
Rejection Notice. If Administrator fails to submit a
Revised Plan within such 30 day period, Trust may
terminate the Agreement upon 60 days written notice to
Administrator. The Trust, in its sole discretion, may
accept the Revised Plan or reject the Revised Plan
("Denial Notice"). Any Denial Notice must be submitted
to Administrator within 15 days after provision of the
Revised Plan. If Trust fails to provide a Denial Notice
within such 15 day period, it shall be presumed that
Trust accepted the Revised Plan. If Trust provides a
Denial Notice to Administrator, Trust may, in its sole
discretion, terminate this Agreement upon 60 days
written notice to Administrator. Such termination notice
must be submitted to Administrator within 60 days after
provision of the Denial Notice; and
(H) Administrator has committed a material breach of
this Agreement and such breach has not been remedied by
the Administrator within sixty days written notice of
such breach by Trust.
(e) Termination of this Agreement with respect to any given
Investment Fund shall in no way affect the continued validity
of this Agreement with respect to any other Investment Fund.
(f) Upon termination of this Agreement, the Trust shall pay to the
Administrator such compensation and any reimbursable expenses
as may be due and undisputed under the terms hereof as of the
date of such termination, including reasonable out-of-pocket
expenses associated with such termination. All out-of
pocket expenses associated under this sub-paragraph for which
the Administrator seeks reimbursement must be pre-approved by
the Trust in writing, such approval shall not be unreasonably
withheld.
(g) This Agreement may be modified or amended from time to time by
mutual written agreement of the parties hereto.
15. NOTICES
Any notice or other communication authorized or required by this
Agreement to be given to either party shall be in writing and deemed to have
been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the following address (or such
other address as a party may specify by written notice to the other): if to the
Trusts: 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000, Attn: Xxxx X, Xxxxxxxx,
facsimile: 000-000-0000; if to the Administrator: State Street Bank and Trust
Company, X.X.
00
Xxx 0000, Xxxxxx, XX 00000-0000, Attn: Fund Administration Legal Department,
facsimile: 000-000-0000.
16. NON-ASSIGNABILITY
This Agreement, nor any part thereof, shall be assigned by either
party hereto without the prior consent in writing of the other party, except
that either party may assign this Agreement to a successor of all or a
substantial portion of its business, or to a party controlling, controlled by or
under common control with such party.
17. SUCCESSORS
This Agreement shall be binding on and shall inure to the benefit of
the Trust and the Administrator and their respective successors and permitted
assigns.
18. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties
hereto with respect to the subject matter hereof and supersedes all previous
representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
19. WAIVER
The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver nor shall it
deprive such party of the right thereafter to insist upon strict adherence to
that term or any term of this Agreement. Any waiver must be in writing signed by
the waiving party.
20. SEVERABILITY
If any provision of this Agreement is invalid or unenforceable, the
balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any person or circumstance it shall nevertheless remain
applicable to all other persons and circumstances.
21. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
22. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and
amendments hereto may be reproduced by any photographic, xerographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process. The parties hereto all/each agree that any such
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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 of such reproduction shall likewise be admissible in evidence.
23. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below as of the date first written
above.
LAUDUS TRUST
LAUDUS VARIABLE INSURANCE TRUST
By: /s/ Xxxxxx Xxxx
--------------------------------
Name: Xxxxxx Xxxx
Title: Treasurer and Chief Financial Officer
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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EXECUTED
ADMINISTRATION AGREEMENT
SCHEDULE A
LISTING OF INVESTMENT FUNDS AND CLASSES OF SHARES
LAUDUS TRUST CLASSES OF SHARES
------------ -----------------
Laudus Xxxxxxxxx U.S. Large Capitalization Fund Investor
Institutional
Laudus Xxxxxxxxx U.S. Large Capitalization Investor
Growth Fund Institutional
Laudus Xxxxxxxxx U.S. Large Capitalization Value Investor
Fund Institutional
Laudus Xxxxxxxxx U.S. Discovery Fund Investor
Institutional
Laudus Xxxxxxxxx U.S. Small Capitalization Fund Investor
Adviser
Institutional
Laudus Xxxxxxxxx International Equity Fund Investor
Institutional
Laudus Xxxxxxxxx International Small Investor
Capitalization Fund Institutional
Laudus Xxxxxxxxx U.S. Large/Mid Capitalization Investor
Long/Short Equity Fund Institutional
Laudus Xxxxxxxxx Global Long/Short Equity Fund Investor
Institutional
Laudus Xxxxxxxxx Value Long/Short Equity Fund Investor
Institutional
LAUDUS VARIABLE INSURANCE TRUST CLASSES OF SHARES
------------------------------- -----------------
Laudus Xxxxxxxxx VIT Value Long/Short Equity Class 1
Fund Class 2
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ADMINISTRATION AGREEMENT
SCHEDULE B
NOTICE FILING WITH
STATE SECURITIES ADMINISTRATORS
AT THE SPECIFIC DIRECTION OF THE TRUST, THE ADMINISTRATOR WILL PREPARE REQUIRED
DOCUMENTATION AND MAKE NOTICE FILINGS IN ACCORDANCE WITH THE SECURITIES LAWS OF
EACH JURISDICTION IN WHICH TRUST SHARES ARE TO BE OFFERED OR SOLD PURSUANT TO
INSTRUCTIONS GIVEN TO THE ADMINISTRATOR BY THE TRUST.
THE TRUST SHALL BE SOLELY RESPONSIBLE FOR THE DETERMINATION (I) OF THOSE
JURISDICTIONS IN WHICH NOTICE FILINGS ARE TO BE SUBMITTED AND (II) THE NUMBER OF
TRUST SHARES TO BE PERMITTED TO BE SOLD IN EACH SUCH JURISDICTION. THE
ADMINISTRATOR WILL MONITOR THE SALE OF TRUST SHARES FOR COMPLIANCE WITH STATE
SECURITIES LAWS AND WILL PROMPTLY NOTIFY THE TRUST IF THE TRUST IS REQUIRED TO
AMEND OR RENEW ANY NOTICE FILINGS OR PAY ANY ADDITIONAL NOTICE FILING FEES TO
REMAIN COMPLIANT WITH STATE SECURITIES LAWS. IN THE EVENT THAT THE ADMINISTRATOR
BECOMES AWARE OF (A) THE SALE OF TRUST SHARES IN A JURISDICTION IN WHICH NO
NOTICE FILING HAS BEEN MADE OR (B) THE SALE OF TRUST SHARES IN EXCESS OF THE
NUMBER OF TRUST SHARES PERMITTED TO BE SOLD IN SUCH JURISDICTION, THE
ADMINISTRATOR SHALL REPORT SUCH INFORMATION TO THE TRUST, AND IT SHALL BE THE
TRUST'S RESPONSIBILITY TO DETERMINE APPROPRIATE CORRECTIVE ACTION AND INSTRUCT
THE ADMINISTRATOR WITH RESPECT THERETO.
The Blue Sky services shall consist of the following:
1. Preparing and filing of Trust's Initial Notice Filings, as directed
by the Trust;
2. Preparing and filing of Trust's renewals and amendments as required;
3. Preparing and filing of amendments to the Trust's registration
statement where required;
4. Preparing and filing Trust sales reports where required;
5. Payment at the expense of the Trust of all Trust Notice Filing fees;
6. Filing the Prospectuses and Statements of Additional Information and
any amendments or supplements thereto, and any other documents,
where required;
7. Filing of annual reports and proxy statements where required; and
8. The performance of such additional services as the Administrator and
the Trust may agree upon in writing.
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Unless otherwise specified in writing by the Administrator, Blue Sky services by
the Administrator shall not include determining the availability of exemptions
under a jurisdiction's blue sky law. Any such determination shall be made by
the Trust or its legal counsel. In connection with the services described
herein, the Trust shall issue in favor of the Administrator a power of attorney
to submit Notice Filings on behalf of the Trust, which power of attorney shall
be substantially in the form of Exhibit I attached hereto.
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ADMINISTRATION AGREEMENT
SCHEDULE C
LIST OF SERVICES
1. Provide periodic testing of portfolios with respect to compliance with
Internal Revenue Code mandatory qualification requirements, the requirements of
the 1940 Act and the Investment Funds' prospectus limitations as may be mutually
agreed upon, including quarterly compliance reporting to the Trust's officers as
well as preparation of Board compliance materials;
2. Prepare, for review and approval by officers of the Trust, such Investment
Fund's periodic financial reports required to be filed with the Securities and
Exchange Commission on Form N-SAR and financial information required by Form
N-1A, Form N-CSR and such other reports, forms or filings as may be mutually
agreed upon;
3. Prepare and coordinate the filing of Rule 24f-2 notices, including
coordination of payment;
4. Provide on a periodic basis information to the Investment Funds' Chief
Compliance Officer regarding State Street's compliance with its Compliance
Program;
5. Prepare and sign as paid preparer each Investment Fund's federal, state,
and local income tax returns and extension requests for review and for execution
and filing by the Trust's independent accountants and execution and filing by
the Trust's treasurer, including Form 1120-RIC, Form 8613 and Form 1099-MISC;
6. Prepare information for Section 852 mailings;
7. Provide sub-certificates in connection with the certification requirements
of the Xxxxxxxx-Xxxxx Act of 2002 with respect to the services provided by
State Street;
8. Maintain certain books and records of the Trust as required under Rule
31a-l(b) of the 1940 Act, as may be mutually agreed upon;
9. Consult with the Trust's officers, independent accountants, legal counsel,
custodian, fund accountant, distributor, and transfer agent in establishing the
accounting policies of the Trust;
10. Perform Blue Sky services pursuant to the specific instructions of the
Trust's officers as detailed in Schedule B hereto;
11. Assist in developing guidelines and procedures to improve overall
compliance by the Trust;
12. Assist the Trust in the handling of routine regulatory examinations and
work with the Trust's legal counsel in response to any non-routine regulatory
matters; and
13. Provide periodic certifications and reasonable documentation to the Chief
Compliance Officer of the Trust in connection with Rule 38a-1 of the 1940 Act.
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