Exhibit-23(e)
DISTRIBUTION AGREEMENT
AGREEMENT dated as of October 1, 2005, 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 together 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, each Trust is registered under the Investment Company Act of
1940, as amended (the "1940 ACT"), as an open-end management investment company,
and is authorized to issue shares of beneficial interest ("SHARES") in separate
series, with each series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Adviser serves as the investment adviser for each Trust and
is duly registered under the Investment Advisers Act of 1940, as amended, as an
investment adviser;
WHEREAS, each Trust desires to retain the Distributor in connection with
the offering and sale of Shares of each series listed on Schedule A hereto (and
classes thereof), as may be amended from time to time (each a "FUND," and
collectively the "FUNDS")
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and is a
member of NASD, Inc. (the "NASD");
WHEREAS, the Agreement has been approved by a vote of each Trust's Board
of Trustees (the "BOARD") and each of its trustees who is not an "interested
person" of each Trust (as defined under the 0000 Xxx) and who is neither a party
to this Agreement nor an interested persons of a party to this Agreement
(collectively, the "INDEPENDENT TRUSTEES") in conformity with Section 15 of the
1940 Act; and
WHEREAS, the Distributor is willing to act as principal underwriter and
distributor for each Trust on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. Appointment of Distributor -- Each Trust hereby appoints the Distributor as
its agent to act as principal underwriter in connection with the sale and
distribution of Shares of the Funds on the terms and conditions set forth in
this Agreement, and the Distributor hereby accepts such appointment and agrees
to perform the services and duties set forth in this Agreement.
2. Sales of Shares -- Each Trust grants to the Distributor the right to sell the
Shares as agent on behalf of each Trust, during the term of this Agreement,
subject to the registration requirements of the Securities Act of 1933, as
amended (the "SECURITIES ACT"), the 1940 Act and of the laws governing the sale
of securities in the various states ("BLUE SKY LAWS"), under the terms and
conditions set forth in this Agreement. The Distributor agrees to sell Shares of
the Funds on a best efforts basis covered by this Agreement upon the terms and
at the current offering price (plus any sales charges, if any) described in the
Prospectus. As used in this Agreement, the term "PROSPECTUS" shall mean the
current prospectus,
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including the statement of additional information, as amended or supplemented,
relating to the Funds and included in each Trust's currently effective
registration statement or post-effective amendment thereto (the "REGISTRATION
STATEMENT") filed with the Securities and Exchange Commission ("SEC") under the
Securities Act and the 1940 Act. The Distributor shall devote its best efforts
to effect sales of Shares of the Funds but shall not be obligated to sell any
certain number of Shares.
3. Duties of the Distributor -- (a) During the continuous public offering of
Shares, the Distributor will hold itself available to receive orders for the
purchase and redemption of Shares of the Funds and will accept such orders on
behalf of the Fund, provided the orders are in satisfactory form as described in
the Fund's Prospectus. Such orders shall be deemed effective at the time and in
the manner set forth in the Prospectus. The Distributor, with the operational
assistance of each Trust's transfer agent, shall make Shares available for sale
and redemption through the National Securities Clearing Corporation's Fund/SERV
system and/or such other trading system(s) as identified by each Trust.
(b) In connection with all matters relating to this Agreement, the
Distributor agrees to act in conformity with each Trust's Agreement and
Declaration of Trust and By-Laws, as each may be amended or supplemented, and
with the instructions of the Board and to comply with the requirements of the
Securities Act, the Exchange Act, the 1940 Act, the regulations of the NASD and
all other applicable federal or state laws and regulations. The Distributor
acknowledges and agrees that it is not authorized to provide any information or
make any representations other than as contained in the Prospectus and any sales
literature specifically approved by each Trust.
(c) Subject to the supervisory authority of the Board, and on such terms
as are authorized by each Trust, the Distributor may enter into agreements
("Intermediary Agreements") with selected dealers, financial advisers and other
financial intermediaries (collectively, the "Financial Intermediaries") for the
provision of distribution and/or shareholder services related to the sale of
Shares, as agreed by the Distributor and the Financial Intermediaries that are
parties to such agreements. The Distributor will act only as principal in
entering into such agreements with Financial Intermediaries. The Distributor may
designate one or more of the Financial Intermediaries to act as agent of a Fund
solely for the purpose of receiving purchase and redemption orders for the Fund.
The Distributor agrees to cooperate with each Trust to negotiate, enter into and
administer such agreements with Financial Intermediaries as each Trust may
determine. The form of any agreement between the Distributor and the Financial
Intermediaries shall be mutually agreed upon and approved by each Trust and the
Distributor. The Distributor further agrees to cooperate with each Trust to
negotiate, and administer sub-accounting agreements between each Trust and
Financial Intermediaries.
(d) The Distributor shall monitor and process payments made to Financial
Intermediaries under each Trust's distribution and shareholder servicing plans
and shall monitor and process sub-accounting payments and revenue sharing
payments made to Financial Intermediaries.
(e) The Distributor shall prepare or participate in the preparation of
reports for the Board regarding its activities under this Agreement as from time
to time shall be reasonably requested by the Board, including reports regarding
payments made to Financial Intermediaries under the applicable Trust's
Distribution and Shareholder Servicing plans and regarding sub-accounting
payments. The Distributor shall prepare reports regarding the use of
distribution and shareholder servicing payments received by the Distributor, if
any, on at least a quarterly basis.
(f) The Distributor shall at all times during the term of this Agreement
remain registered or qualified as a broker-dealer under the Exchange Act and
with each state under applicable state securities laws and regulations, and
shall also remain a member in good standing of the NASD. The Distributor shall
bear the expenses of registration or qualification of the Distributor as a
dealer or broker under
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federal or state laws and the expenses of continuing such registration or
qualification. The Distributor shall immediately notify each Trust in writing in
the event of any investigation by a governmental or regulatory agency that is
likely to affect such registrations or membership, or if it receives written
notification that such registrations or membership has been temporarily or
permanently suspended, limited or terminated. The Distributor represents and
warrants that this Agreement has been duly authorized by all necessary action by
the Distributor under the Exchange Act and any other applicable federal or state
laws or regulations.
(g) The Distributor agrees to use its best efforts to solicit orders for
the sale of the Shares upon the terms and at the public offering price described
in the Prospectus and will undertake such advertising and promotion as it
believes is reasonable in connection with such solicitation. The Distributor is
responsible for reviewing and filing any sales literature or advertising
material (including material disseminated through radio, television, Web site,
Internet or other electronic media) concerning each Trust ("MARKETING MATERIAL")
with the NASD to the extent required by the Exchange Act and the 1940 Act,
including the rules and regulations thereunder, and by the rules of the NASD.
Each Trust shall be responsible for submitting any Marketing Material to the
Distributor in a reasonable amount of time prior to the deadline for filing the
Marketing Material with the NASD. After approval of the Marketing Material by
the Distributor, each Trust shall provide to the Distributor final versions of
the Marketing Material for filing with the NASD. The Distributor's written
approval must be obtained prior to using Marketing Material.
(h) The Distributor will promptly transmit any orders received by it for
purchase, redemption or exchange of the Shares to each Trust's transfer agent.
The Distributor shall develop and implement procedures that are reasonably
designed to ensure that, to the extent the Distributor is responsible for
transactions for the purchase and redemption of Shares hereunder, such
transactions are processed and consummated in accordance with the Prospectus and
the requirements of Section 22(c) of the 1940 Act and the rules adopted
thereunder (the "SECTION 22 RULES"), and processed in accordance with the
guidance set forth in NASD Special Notice to Members 03-05 (September 2003). All
contractual arrangements for the sale of Shares and to which the Distributor is
a party, including agreements between the Distributor and Financial
Intermediaries, shall require that the counterparty implement policies and
procedures that are reasonably designed to ensure that all transactions in
Shares initiated or processed by the counterparty must be effected in accordance
with the Prospectus and all applicable law, rules and regulation, including the
Section 22 Rules.
(i) The Distributor shall implement and maintain 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 in a secure manner and in a time frame that is
consistent with legal, regulatory and business requirements while maintaining
information integrity ("BUSINESS CONTINUITY PROCEDURES"). In the event of any
business interruption, the Distributor shall act in good faith and exercise
reasonable care to minimize any interruption in its ability to perform the
services hereunder. In the event of a disaster, Distributor shall keep each
Trust reasonably informed regarding the status of its recovery efforts. The
Distributor 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 reasonable control or
anticipation, including without limitation or natural disaster, except to the
extent such failures or delays result from or are extended by the Distributor's
failure to implement and maintain Business Continuity Procedures.
(j) In accordance with the Distributor's internal compliance program, the
Distributor will provide, on a regular basis, reports under the program as
agreed to by the Distributor and each Trust. Upon request of each Trust, the
Distributor will provide to each Trust on a semi-annual or quarterly basis a
sub-certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 with respect to the
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Distributor's performance of the services set forth in this Agreement and its
internal controls related thereto substantially in the form provided at Schedule
C, as the same may be updated from time to time. In addition, upon request of
the Fund, on a semi-annual or quarterly basis, the Distributor will provide to
the Fund a certification under Rule 38a-1 of the 1940 Act with respect to the
compliance provisions required by that Rule.
(k) The Distributor shall maintain books and records as required under
Rule 31a-1 of the 1940 Act with respect to the services provided under this
Agreement.
(l) The Distributor shall maintain policies and procedures reasonably
designed to perform due diligence on Financial Intermediaries, and agrees to
send annual notices reminding Financial Intermediaries of their compliance
obligations under the Intermediary Agreements and any other matters as agreed to
by the Distributor and each Trust from time to time.
4. Compensation -- The Adviser, on behalf of each Trust, shall pay to the
Distributor such compensation for the Distributor'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 on Schedule B (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 Adviser'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.
5. Sales of Shares by the Trust -- The rights granted to the Distributor shall
be nonexclusive in that each Trust reserves the right to: (a) issue or sell
Shares directly to holders of Shares of the Fund upon such terms and conditions
and for such consideration, if any, as it may determine, whether in connection
with the distribution of subscription or purchase rights, the payment or
reinvestment of dividends or distributions, or otherwise; (b) issue or sell
Shares at net asset value in connection with recapitalization, merger or
consolidation with, or acquisition of the assets of, other investment companies
or similar companies; or (c) issue Shares in connection with any offer of
exchange permitted by Section 11 of the 1940 Act.
6. Public Offering Price -- All Shares sold to investors by the Distributor or
each Trust will be sold at the public offering price as described the
Prospectus. The public offering price for all accepted purchase orders will be
the net asset value per Share, as determined in the manner described in
Prospectus. Each Trust, on behalf of each applicable Fund, shall in all cases
receive the net asset value per Share on all sales. If a fee in connection with
purchases of Shares is in effect, such fee will be paid to each Trust on behalf
of the applicable Fund.
7. Suspension of Sales -- Each Trust reserves the right, in its sole discretion,
to suspend sales and the Distributor's authority to solicit and process orders
for Shares. Any such suspension will continue for such period as determined by
each Trust in its sole discretion.
8. Registration of Shares -- Each Trust agrees that it will take all action
necessary to register the Shares under the Securities Act and the 1940 Act
(subject to the necessary approval of its shareholders). Each Trust shall make
available to the Distributor, at the Distributor's expense, such number of
copies of its Prospectus (including the statement of additional information, if
requested) as the Distributor may reasonably request. Each Trust shall furnish
to the Distributor copies of all information, financial statements and other
papers, which the Distributor may reasonably request for use in connection with
the distribution of Shares.
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9. Documents -- Each Trust has furnished or will furnish, upon request, the
Distributor with copies of each Trust's Agreement and Declaration of Trust,
By-Laws and Prospectus, as well as other agreements and all forms relating to
any plan, program or service offered by each Trust related to the offering of
Shares that the Distributor may reasonably request. Each Trust shall furnish to
the Distributor, within a reasonable time period, a copy of any amendment or
supplement to any of the above-referenced documents. Upon written request, each
Trust shall furnish promptly to the Distributor any additional documents
necessary or advisable to perform its functions hereunder.
10. Trust Expenses -- Unless otherwise agreed to by the parties hereto in
writing, the Distributor shall not be responsible for fees and expenses in
connection with (a) filing of any registration statement, printing and the
distribution of any prospectus and statement of additional information under the
Securities Act and/or the 1940 Act and amendments prepared for use in connection
with the offering of Shares for sale to the public, preparing, setting in type,
printing and mailing the prospectus, statement of additional information and any
supplements thereto sent to existing shareholders, (b) preparing, setting in
type, printing and mailing any report (including annual and semi-annual reports)
or other communication to shareholders of the Fund, or (c) the Blue Sky
registration and qualification of Shares for sale in the various states in which
the officers of each Trust shall determine it advisable to qualify Shares for
sale.
11. Use of the Distributor's Name -- Each Trust shall not use the name of the
Distributor, or any of its affiliates, in any prospectus or statement of
additional information, sales literature, and other material relating to each
Trust in any manner without the prior written consent of the Distributor (which
shall not be unreasonably withheld); provided, however, that the Distributor
hereby approves all lawful uses of the names of the Distributor and its
affiliates in the Fund's prospectus and statement of additional information and
in all other materials which merely refer in accurate terms to their appointment
hereunder or which are required by the SEC, NASD, OCC or any state securities
authority.
12. Use of each Trust's Name -- During the term of this Agreement and at all
times thereafter, neither the Distributor nor any of its affiliates or agents
shall use the names, trademarks, trade names, or service marks of each Trust or
any Fund without, as appropriate, the Fund's prior written authorization ;
provided, however, that each Trust hereby approves all lawful uses of its name
in any required regulatory filings of the Distributor that merely refer in
accurate terms to the appointment of the Distributor hereunder, or that are
required by the SEC, NASD, OCC or any state securities authority.
13. Insurance -- The Distributor agrees to maintain fidelity bond and liability
insurance coverages that are, in scope and amount, consistent with coverages
customary for distribution activities relating to each Trust. The Distributor
shall promptly notify each Trust upon receipt of any notice of material, adverse
change in the terms or provisions of its insurance coverage. Such notification
shall include the date of change and the reason or reasons therefor. The
Distributor shall notify each Trust of any material claims against it, whether
or not covered by insurance, and shall notify each Trust from time to time as
may be appropriate of the total outstanding claims made by it under its
insurance coverage.
14. Indemnification -- The Trust agrees to indemnify and hold harmless the
Distributor and each of its directors and officers and each person, if any, who
controls the Distributor within the meaning of Section 15 of the Securities Act,
against any loss, liability, claim, damages or expenses (including the
reasonable cost of investigating or defending any alleged loss, liability,
claim, damages or expense and reasonable counsel fees incurred in connection
therewith) arising by reason of any person acquiring any Shares, based upon the
ground that the registration statement, prospectus, statement of additional
information, shareholder reports or other information filed or made public by
each Trust (as from time to time amended by each Trust) included an untrue
statement of a material fact or omitted to state a material fact required to be
stated or necessary in order to make the statements not misleading under the
Securities
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Act, the 1940 Act or any other statute or the common law. However, each Trust
does not agree to indemnify the Distributor or hold it harmless to the extent
that the statement or omission was made in reliance upon, and in conformity
with, information furnished to each Trust by or on behalf of the Distributor. In
no case (i) is the indemnity of each Trust in favor of the Distributor or any
person indemnified to be deemed to protect the Distributor or any person against
any liability to each Trust or its security holders to which the Distributor or
such person would otherwise be subject by reason of willful misfeasance, breach
of this Agreement, bad faith or negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement, or (ii) is each Trust to be liable under its indemnity agreement
contained in the paragraph with respect to any claim made against the
Distributor or any person indemnified unless the Distributor or person, as the
case may be, shall have notified each Trust in writing of the claim promptly
after the summons or other first written notification giving information of the
nature of the claims shall have been served upon the Distributor or any such
person (or after the Distributor or such person shall have received notice of
service on any designated agent). However, failure to notify each Trust of any
claim shall not relieve each Trust from any liability which it may have to any
person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. Each Trust shall be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
the defense of any suit brought to enforce any claims, and if each Trust elects
to assume the defense, the defense shall be conducted by counsel chosen by each
Trust. In the event each Trust elects to assume the defense of any suit and
retain counsel, the Distributor, officers or directors or controlling person(s),
defendant(s) in the suit, shall bear the fees and expenses of any additional
counsel retained by them. If each Trust does not elect to assume the defense of
any suit, it will reimburse the Distributor, officers or directors or
controlling person(s) or defendant(s) in the suit for the reasonable fees and
expenses of any counsel retained by them. Each Trust agrees to notify the
Distributor promptly of the commencement of any litigation or proceeding against
it or any of its officers in connection with the issuance or sale of any of the
Shares. Distributor shall reasonably cooperate with each Trust in connection
with the defense.
The Distributor also covenants and agrees that it will indemnify and hold
harmless each Trust and each of its trustees, officers and any person, who
controls each Trust, if any, within the meaning of Section 15 of the Securities
Act, against any loss, liability, damages, claims or expense (including the
reasonable cost of investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fees incurred in connection
therewith) arising by reason of any person acquiring any Shares, based upon the
Securities Act, the 1940 Act or any other federal or state statute, regulation
or rule, or common law, alleging (a) any wrongful act of the Distributor or any
of its employees and agents, including breach of this Agreement, or (b) that any
sales literature, advertisements, information, statements or representations
used or made by the Distributor or any of its affiliates or employees or that
the registration statement, prospectus, statement of additional information, (as
from time to time amended) included an untrue statement of a material fact or
omitted to state a material fact required to be stated or necessary in order to
make the statements not misleading, insofar as the statement or omission was
made in reliance upon, and in conformity with, information furnished to each
Trust by or on behalf of the Distributor. In no case (i) is the indemnity of the
Distributor in favor of each Trust or any person indemnified to be deemed to
protect each Trust or any person against any liability to which each Trust or
such person would otherwise be subject by reason of willful misfeasance, breach
of this Agreement, bad faith or negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Distributor to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made against each Trust or
any person indemnified unless each Trust or person, as the case may be, shall
have notified the Distributor in writing of the claim promptly after the summons
or other first written notification giving information of the nature of the
claim shall have been served upon each Trust or any such person (or after each
Trust or such person shall have received notice of service on any designated
agent). However, failure to notify the Distributor of any claim shall not
relieve the Distributor from any liability which it may have to each Trust or
any person against whom the action
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is brought otherwise than on account of its indemnity agreement contained in
this paragraph. In the case of any notice to the Distributor it shall be
entitled to participate, at its own expense, in the defense or, if it so elects,
to assume the defense of any suit brought to enforce the claim, and if the
Distributor elects to assume the defense, the defense shall be conducted by
counsel chosen by it and satisfactory to each Trust, to its officers and to any
controlling person(s) or defendant(s) in the suit. In the event that the
Distributor elects to assume the defense of any suit and retain counsel, each
Trust or controlling person(s), defendant(s) in the suit, shall bear the fees
and expense of any additional counsel retained by them. If the Distributor does
not elect to assume the defense of any suit, it will reimburse each Trust,
officers or controlling person(s), defendant(s) in the suit, for the reasonable
fees and expenses of any counsel retained by them. The Distributor agrees to
notify each Trust promptly of the commencement of any litigation or proceedings
against it in connection with each Trust and sale of any of the Shares. Each
Trust shall reasonably cooperate with the Distributor in connection with the
defense.
15. Standard of Care. The Distributor shall at all times act in conformity with
the requirements of this Agreement and shall act in good faith and without
negligence or willful misconduct.
16. Supplemental Information -- The Distributor and each Trust shall regularly
consult with each other regarding the Distributor's performance of its
obligations under this Agreement. In connection therewith, each Trust shall
submit to the Distributor at a reasonable time in advance of filing with the SEC
reasonably final copies of any amended or supplemented registration statement
(including exhibits) under the Securities Act and the 1940 Act; provided,
however, that nothing contained in this Agreement shall in any way limit each
Trust's right to file at any time such amendments to any registration statement
and/or supplements to any prospectus or statement of additional information, of
whatever character, as each Trust may deem advisable, such right being in all
respects absolute and unconditional.
The Distributor acknowledges that the only information provided to it by each
Trust is that contained in the registration statement, the prospectus, the
statement of additional information and reports and financial information
referred to herein. Neither the Distributor nor any other person is authorized
by each Trust to give any information or to make any representations, other than
those contained in such documents and any sales literature or advertisements
specifically approved by appropriate representatives of each Trust.
17. Term -- This Agreement shall become effective as of October 1, 2005 and
shall continue until two years from such date and thereafter shall continue
automatically for successive annual periods, provided such continuance is
specifically approved at least annually (i) by each Trust's Board of Trustees or
(ii) by a vote of a majority of the outstanding voting securities (as defined in
the 0000 Xxx) of the relevant Fund, provided that in either event the
continuance is also approved by the majority of the Independent Trustees by vote
cast in person at a meeting called for the purpose of voting on such approval.
This Agreement is terminable without penalty on sixty days' written notice by
each Trust, or, with respect to any Fund, by vote of the holders of a majority
of the outstanding voting securities of such Fund (as defined under the 1940
Act), or by the Distributor. This Agreement shall automatically terminate in the
event of its assignment (as defined in the 1940 Act).
Upon the termination of this Agreement, the Distributor, at each Trust's expense
and direction, shall transfer to such successor as each Trust shall specify all
relevant books, records and other data established or maintained by the
Distributor under this Agreement.
18. Anti-Money Laundering - (a) The parties acknowledge that each Trust is
primarily relying on service providers, including the Distributor, to implement
procedures consistent with such service provider's contractual obligations that
are reasonably designed to detect and deter money laundering activity that may
occur within each Trust.
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(b) In accordance with the above representations, the Distributor agrees
to maintain, and shall cause any agents or representatives of the Distributor
used to perform services under the Agreement to maintain, an anti-money
laundering program (the "AML PROGRAM") that complies with applicable anti-money
laundering laws, rules and regulations, including NASD Rule 3011 (the "AML
RULES").
(c) The Distributor acknowledges that each Trust will not have access to
detailed information about the beneficial owners of Shares. Accordingly, to the
extent that the Distributor knows or reasonably should know of: (i) suspected
money laundering activity in connection with each Trust; (ii) violations of the
AML Rules in connection with each Trust; (iii) any reports received by the
Distributor from any federal regulator(s) pertaining to material non-compliance
with the AML Rules in connection with each Trust; and (iv) any action taken in
response to (i) through (iii), the Distributor agrees to provide prompt written
notification to each Trust.
(d) The Distributor agrees to make reasonably available all of its
policies, procedures and records relating to its AML Program implement for the
benefit of each Trust upon reasonable request of each Trust and any law
enforcement authority or regulatory agency.
(e) Each party agrees not disclose to any third party, other than a
federal law enforcement or regulatory agency, or each Trust's investment
manager, any information pertaining to suspected money-laundering activity that
either party may provide to the other party or to any federal or state law
enforcement or regulatory agency.
19. Notice -- Any notice required or permitted to be given by either party to
the other shall be deemed sufficient if sent by (i) telecopier (fax) or (ii)
registered or certified mail, postage prepaid, addressed by the party giving
notice to the other party at the last address furnished by the other party to
the party giving notice:
if to each Trust at:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: President
if to the Adviser at:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: President
if to the Distributor at:
0000 Xxxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx, 00000
Attn: General Counsel
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or such other telecopier (fax) number or address as may be furnished by one
party to the other.
20. Confidential Information -- The Distributor, its officers, directors,
employees and agents will treat confidentially and as proprietary information of
each Trust all records and other information relative to each Trust and to prior
or present shareholders or to those persons or entities who respond to the
Distributor's inquiries concerning investment in each Trust, and will not use
such records and information for any purposes other than performance of its
responsibilities and duties hereunder. Portfolio holdings information of each
Trust shall be deemed to be confidential information of each Trust until such
time as such portfolio holdings information shall made available in a public
filing by each Trust. The Distributor shall not purchase or sell securities or
other investments on the basis of confidential portfolio holdings information of
each Trust provided to the Distributor and shall take reasonable steps to
prevent any employee or agent of Distributor from purchasing or selling
securities or other investments on the same basis. In accordance with provisions
of Regulation S-P, the Distributor shall not directly or indirectly through an
affiliate, disclose any non-public personal information to any third party,
except as required or permitted by law and as provided in this Section 20. If
the Distributor is requested or required by, but not limited to, depositions,
interrogatories, requests for information or documents, subpoena, civil
investigation, demand or other action, proceeding or process or as otherwise
required by law, statute, regulation, writ, decree or the like to disclose such
information, the Distributor will provide each Trust with prompt written notice
of any such request or requirement so that each Trust may seek an appropriate
protective order or other appropriate remedy and/or waive compliance with this
provision. If such order or other remedy is not sought, or obtained, or waiver
not received within a reasonable period following such notice, then the
Distributor may without liability hereunder, disclose to the person, entity or
agency requesting or requiring the information, that portion of the information
that is legally required in the reasonable opinion of the Distributor's counsel.
21. Limitation of Liability -- (a) The Distributor agrees that the obligations
assumed by each Trust under this contract shall be limited in all cases to each
Trust and its assets. The Distributor agrees that it shall not seek satisfaction
of any such obligation from one or more shareholders of the Funds, trustees or
officers of each Trust. The Distributor understands that the rights and
obligations of each Fund under each Trust's Agreement and Declaration of Trust
are separate and distinct from those of any and all other Funds.
(b) The parties acknowledge that each Trust's Agreement and Declaration of
Trust is on file with the Secretary of State of the Commonwealth of
Massachusetts and was executed on behalf of each Trust by the trustees of each
Trust as trustees and not individually, and any obligation of each Trust shall
be binding only upon the assets of each Trust (or applicable Fund) and shall not
be binding upon any trustee, officer or shareholder of each Trust. Neither the
authorization of any action by the trustees or shareholders of each Trust nor
the execution of this Agreement on behalf of each Trust shall impose any
liability upon any trustee, officer or shareholder of each Trust.
22. Miscellaneous -- Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof. This
Agreement shall be construed, interpreted, and enforced in accordance with and
governed by the laws of the State of Colorado. The captions in this Agreement
are included for convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their construction or effect.
This Agreement may not be changed, waived, discharged or amended except by
written instrument that shall make specific reference to this Agreement and
which shall be signed by the party against which enforcement of such change,
waiver, discharge or amendment is sought. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, each party hereto has executed this instrument in its name
and behalf as of the date and year first above written.
LAUDUS TRUST ALPS DISTRIBUTORS, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxx X. May
-------------------------------- ---------------------------------
Name: Name: Xxxxxx X. May
Title: Title: Managing Director
LAUDUS VARIABLE INSURANCE TRUST
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name:
Title:
XXXXXXX XXXXXX INVESTMENT MANAGEMENT, INC.,
with respect to Section 4 hereof only
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name:
Title:
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Schedule A
List of Funds
Laudus Xxxxxxxxx U.S. Large Capitalization Fund
Laudus Xxxxxxxxx U.S. Large Capitalization Growth Fund
Laudus Xxxxxxxxx U.S. Large Capitalization Value Fund
Laudus Xxxxxxxxx U.S. Discovery Fund
Laudus Xxxxxxxxx U.S. Small Capitalization Fund
Laudus Xxxxxxxxx International Equity Fund
Laudus Xxxxxxxxx International Small Capitalization Fund
Laudus Xxxxxxxxx U.S. Large/Mid Capitalization Long/Short Equity Fund
Laudus Xxxxxxxxx U.S. Long/Short Equity Fund
Laudus Xxxxxxxxx Global Long/Short Equity Fund
Laudus Xxxxxxxxx Value Long/Short Equity Fund
Laudus Xxxxxxxxx VIT Value Long/Short Equity Fund
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Schedule B
Fee Schedule
The Adviser shall pay Distributor a monthly fee at the annual rate of:
$15,000 annual base fee per Portfolio, plus:
- 1/2 basis point of Portfolios' annual average net assets
between $0 - $1.0B
- 1/4 basis point of Portfolios' annual average net assets
between $1.0B - $2.0B
- 1/10 basis point of Portfolios' annual average net assets over
$2.0B
Distributor will invoice the Adviser monthly. Such fees shall be
pro-rated for any partial month. In addition, the Adviser shall be
responsible for all out-of-pocket expenses incurred by Distributor
in connection with NASD advertising review and filing, NASD
registration and licensing, which include, which include, but shall
not be limited to, costs for study materials, classes, opening test
taking windows, exams, state registration, fulfillment of the
regulatory element, fulfillment of the firm element, the annual
compliance meeting and on-site examinations of the offices of those
individuals registered with the NASD.
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Schedule C
Date
CERTIFYING OFFICERS
Laudus Trust/Laudus Variable Insurance Trust
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Representations in Connection with Certification under Rule 30a-2 of the
Investment Company Act of 1940 with respect to the Laudus Trust/Laudus Variable
Insurance Trust (the "Company")
Dear Certifying Officers:
ALPS Distributor, Inc. (the "Distributor"), in its role as distributor to each
of the series (the "Fund") of the Company pursuant to the Distribution Agreement
(the "Contract") and in accordance with the Company's Distribution and
Shareholder Service Plans (the "Plans"), is providing this letter at your
request to assist you with meeting your certification requirements under Rule
30a-2 under the Investment Company Act of 1940, as amended. The Distributor
representations solely relate to the report filed on Form N-CSR with the U. S.
Securities and Exchange Commission (the "SEC") for the period ended [ ] (the
"Report").
Certain representations in this letter are described as being limited to matters
that are material. Items are considered material, regardless of size, if: (a)
there is a substantial likelihood that a reasonable investor would view the
information as significantly altering the mix of information contained in the
material to which the statement relates; or (b) the material to which the
statement relates would be misleading to a reasonable investor if the
information were omitted from such material. The Distributor makes the following
representations to you with respect to the Report for the period in which the
Report is being prepared, as of the date of this letter:
1. The Distributor performs certain distribution and other services on behalf
of the Fund pursuant to the contract identified above between the
Distributor and the Company. The Distributor is responsible for
maintaining and providing certain information and records relating to the
Fund (the "Reported Information") that we understand are relied upon by
the Fund in connection with the preparation of the Company's Report,
including the financial statements relating to the Fund for the relevant
periods ended [ ].
2. The Distributor is responsible for establishing and maintaining disclosure
controls and procedures (as defined in rule 30a-2(c) under the Investment
Company Act) and has:
a) designed such disclosure controls and procedures to ensure that
material information relating to the Fund is made known to us by
others within the Distributor, and the Fund, particularly during the
period in which the Report is being prepared;
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b) evaluated the effectiveness of our disclosure controls and
procedures as of a date within 90 days of the letter date of the
Report (the "Evaluation Date"); and
c) concluded that its disclosure controls and procedures are
effective based on our evaluation as of the Evaluation Date.
3. To the knowledge of the undersigned, the Reported Information does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the data and information contained therein
not misleading with respect to the period covered by the Report.
4. To the best of our knowledge, there has been no fraud, whether or not
material, that involves Distributor management or other employees who have
a significant role in the internal controls with respect to the
preparation of the Reported Information.
5. To the best of our knowledge, we act appropriately based on instructions
received from the Company.
The undersigned hereby represents the internal controls pertaining to the
distribution (and shareholder) services performed under the Contract and the
Plans are designed to ensure, and are functioning in a manner to permit, the
proper recording, processing, summarizing and reporting of distribution activity
necessary to produce any information required to be disclosed by the Company in
the reports that it files or submits to the SEC. There have been no significant
changes to the operations or to the internal controls or the application thereof
that could materially impact the overall adequacy or effectiveness of the
internal controls.
If you have any questions or need additional information, please feel free to
contact the undersigned at [ ].
Chief Compliance Officer
ALPS Distributor, Inc.
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