Amendment to Distribution Agreement
Ex - (e)(3)
Amendment to Distribution Agreement
This Amendment to the Distribution Agreement is dated as of October 1, 2006, by and among
Laudus Trust, a Massachusetts business trust, having its principal place of business at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the “Trust”), Laudus Variable Insurance Trust,
a Massachusetts business trust, having its principal place of business at 000 Xxxxxxxxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (“VIT” and collectively with the Trust, the “Trusts’’), Xxxxxxx
Xxxxxx Investment Management, Inc., a Delaware corporation, having its principal place of business
at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the “Adviser”) and ALPS Distributors,
Inc., a Colorado corporation, having its principal place of business at 0000 Xxxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000 (the “Distributor”).
WHEREAS, the Adviser was made a party to the Distribution Agreement for the sole purpose of
making payments under Section 4 thereof, and assumes no additional obligations under this
Amendment;
WHEREAS, pursuant to the Distribution Agreement between the Trusts, the Adviser and the
Distributor, the Distributor has agreed to act as principal underwriter and distributor for the
Trusts on the terms and conditions set forth therein;
WHEREAS, such duties of the Distributor, as set forth in the Distribution Agreement, include
entering into agreements with selected dealers, financial advisers and other financial
intermediaries (collectively, the “Financial Intermediaries”);
WHEREAS, each Trust has an obligation to enter into information sharing agreements with these
same Financial Intermediaries in order to fulfill its obligations under Rule 22c-2 of the
Investment Company Act of 1940 (the “1940 Act”); and
WHEREAS, the parties desire to amend the Distribution Agreement as follows to authorize the
Distributor to include language in the agreements with Financial Intermediaries which will allow
each Trust to meet its obligations under Rule 22c-2.
NOW THEREFORE, the parties hereby agree to amend the Distribution Agreement as follows:
1. The following language shall be appended at the end of the current Section 3(c) of the
Distribution Agreement:
“3. Duties of the Distributor
(c) ....In connection with Distributor entering into selling agreements with Financial
Intermediaries, each Trust authorizes and directs the Distributor, and Distributor hereby
agrees, to include language in the selling agreements which will enable the Funds to meet
the Funds’ obligations under Rule 22c-2 of the 1940 Act. Notwithstanding the foregoing,
each Trust agrees that Distributor assumes no obligation to request or receive data under
this provision of the selling agreements, but that Distributor’s only obligation is to
include language in the selling agreements substantively similar to the following:
‘19. Compliance with Rule 22c-2. Distributor represents that pursuant to the
Distribution Agreement between the Funds and the Distributor, as amended,
Distributor has been authorized by the Funds to include language in this
Agreement, and has agreed to include such language, as will enable the Funds to
meet the Funds’ obligations under
Rule 22c-2 of the 1940 Act. Notwithstanding the foregoing, Distributor has assumed no obligation
to request or receive data pursuant to this Section 19 on behalf of the Laudus Trust, the Funds or
their agents. As used hereinafter within this Section 19, and as further defined in Section 19(c)
below, “Funds” shall also include the Funds’ agents. No later than the Effective Date of Rule
22c-2, as defined in Section 19(c) below, the parties agree as follows:
a. Agreement to Provide Information. Upon request of the Funds, such request to
be in writing or by other means mutually agreed upon, Intermediary agrees to
provide to the Funds the taxpayer identification number (“TIN”), if known, of
any or all Shareholder(s) that purchased, redeemed, transferred or exchanged
Shares through an account maintained at Intermediary during the period covered
by the request, the name or other identifier of any investment professional
associated with such account, and the amounts and dates of each such purchase,
redemption, transfer, or exchange of Shares.
(i) Period Covered by Request. All requests by the Funds for the
transaction information specified in this section must set forth the
specific period, not to exceed ninety (90) days from the date of the
request, for which the information is sought. The Funds reserves the
right to request transaction information older than ninety (90) days
from the date of the request as it deems necessary to investigate
compliance with policies established by the Fund.
(ii) Form and Timing of Response.
Intermediary agrees to transmit the requested information on its
books and records to the Funds as soon as reasonably practicable
after Intermediary’s receipt of a request. Responses will be
communicated to the Funds in writing and, to the extent reasonably
practicable, in a format consistent with the NSCC Standardized Data
Reporting Format or in such other format as may be mutually agreed
upon by the parties. If the requested information pertains to an
account held by a sub-intermediary and is not on the Intermediary’s
books and records, Intermediary agrees to use reasonable efforts to:
(a) promptly obtain the requested information from the holder of the
sub-intermediary account and transmit that information to the Funds;
(b) obtain assurances from the holder of the sub-intermediary account
that the requested information will be provided directly and promptly
to the Funds; or (c) if the requested information cannot be provided
pursuant to (a) and (b) above, block further purchases and exchanges
of Fund Shares in the sub-intermediary account. Intermediary agrees
to
inform the Funds regarding which of the options above it will follow.
(iii) Limitations on Use of Information. The
Funds, its affiliates and agents shall not use the information received from
Intermediary pursuant to this section for any purpose other than to comply with Rule
22c-2 of the 1940 Act, and related obligations thereunder, and such other applicable
laws, rules and regulations, without the prior written consent of Intermediary. Each
party will comply with all applicable federal and state laws, rules and regulations
governing the privacy and confidentiality of all shareholder information disclosed to
it pursuant to Rule 22c-2, and will implement appropriate administrative, technical and
physical safeguards reasonably designed to (a) protect the security and confidentiality
of the shareholder information and (b) protect against unauthorized access to or use of
the shareholder information.
b. Agreement to Restrict Trading. Intermediary
agrees to execute written instructions from the Funds to restrict or prohibit further purchases or
exchanges of Shares by a Shareholder identified by the Funds as having engaged in transactions of
the Fund’s Shares (directly or indirectly through Intermediary’s account) that violate policies
established by the Fund. If the requested restriction pertains to an account held by a
sub-intermediary, Intermediary will forward the Fund’s instruction to the sub-intermediary, and
either (a) obtain assurances from the holder of the sub-intermediary account that it will promptly
execute the Fund’s written instructions with respect to investors effecting purchases and exchanges
through the sub-intermediary’s account, or (b) if the sub-intermediary does not or cannot execute
the Fund’s instruction, block further purchases and exchanges of all Fund Shares in the
sub-intermediary account.
(i) Form of Instructions. Instructions to Intermediary to restrict or prohibit further
purchases or exchanges of Shares by a Shareholder shall include, at a minimum, the TIN,
if known, and the specific restriction(s) to be executed. If the TIN is not known, the
instructions must include an equivalent identifying number of the Shareholder(s) or
account(s) or other agreed upon information to which the instruction relates.
(ii) Timing of Response. Intermediary agrees to execute the Fund’s written instructions
pursuant to this section as soon as reasonably practicable, but not later than five
business days after receipt of the instructions by Intermediary.
(iii) Confirmation by Intermediary.
Intermediary will provide confirmation to the Fund, in
writing or as otherwise mutually agreed upon by the parties,
that the Fund’s instructions have been executed. Intermediary
agrees to provide such confirmation as soon as reasonably
practicable, but not later than ten business days after the
instructions have been executed.
c. Definitions. The following definitions apply
solely for purposes of this Section 19.
(i) The term “Fund” does not include any “excepted funds” as
defined in Rule 22c-2(b) under the 0000 Xxx.
(ii) The term “Shares” means the interests of Shareholders
corresponding to the redeemable securities of record issued
by the Fund under the 1940 Act that are held by Intermediary.
(iii) The term “Shareholder” includes (a) the beneficial
owner of Shares, whether the Shares are held directly or by
Intermediary in nominee name; (b) a retirement plan
participant notwithstanding that the retirement plan may be
deemed to be the beneficial owner of Shares; or (iii) the
holder of interests in a variable annuity or variable life
insurance contract issued by Intermediary.
(iv) The term “written” includes electronic writings and
facsimile transmissions.’”
2. Except as specifically set forth herein, all other provisions of the Distribution Agreement
shall remain in full force and effect. Any items not herein defined shall have the meaning ascribed
to them in the Distribution Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written
above.
| LAUDUS TRUST | ALPS DISTRIBUTORS, INC. | |||||||||
By: Name: |
/s/ Xxxxxxx Xxxxxx
|
By: Name: |
/s/ Xxxxxx X. May
|
|||||||
Title:
|
Vice President | Title: | Managing Director | |||||||
Date:
|
10/3/06 | Date: | ||||||||
| LAUDUS VARIABLE INSURANCE TRUST | XXXXXXX XXXXXX INVESTMENT MANAGEMENT, INC. | |||||||||
By: Name: |
/s/ Xxxxxxx Xxxxxx
|
By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||||||
Title:
|
Vice President | Title: | Senior Vice President/CFO | |||||||
Date:
|
10/3/06 | Date: | 10/6/2006 | |||||||
