Exhibit--(h)(3)
EXECUTED
EXECUTION COPY
ADMINISTRATION AGREEMEMT
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 DOCUMENTS
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 OF 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 31a-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 31a-1 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 Growth Fund Investor
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
Investor
Laudus Xxxxxxxxx Global Long/Short Equity Fund Institutional
Investor
Laudus Xxxxxxxxx Value Long/Short Equity Fund Institutional
LAUDUS VARIABLE INSURANCE TRUST CLASSES OF SHARES
------------------------------- -----------------
Laudus Xxxxxxxxx VIT Value Long/Short Equity Fund Class 1
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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