EXHIBIT 24(B)(5)
FORM OF
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this ____ day of __________, 1998, by and between
KIEWIT INVESTMENT TRUST, a Delaware business trust (the "Fund"), and WILMINGTON
TRUST COMPANY, a Delaware corporation (the "Manager").
1. DUTIES OF ADVISOR
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The Fund hereby employs the Manager to manage the investment and
reinvestment of the assets of the _____________________________ Series of the
Fund (the "Series"), to continuously review, supervise and administer the
Series' investment program, to determine in its discretion, and without prior
consultation with the Fund, the securities to be purchased or sold and the
portion of the Series' assets to be uninvested, to provide the Fund with records
concerning the Manager's activities which the Fund is required to maintain, and
to render regular reports to the Fund's officers and the Board of Trustees of
the Fund, all in compliance with the Series' investment objective, policies and
limitations set forth in the Fund's registration statement and applicable laws
and regulations. Subject to compliance with the requirements of the Investment
Company Act of 1940 (the "1940 Act"), the Manager may retain, at the Manager's
own expense, one or more sub-advisers to the Series. The Manager accepts such
employment and agrees to provide, at its own expense, the office space,
furnishings and equipment and the personnel required by it to perform the
services described herein on the terms and for the compensation provided herein.
1. SERIES TRANSACTIONS
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The Manager is authorized to select the brokers or dealers that will
execute the purchases and sales of portfolio securities for the Series in
accordance with the policies with respect to portfolio transactions set forth in
the Fund's registration statement, and is directed to use its best efforts to
obtain the best available price and most favorable execution, except as
prescribed herein.
It is understood that neither the Fund nor the Manager will adopt a
formula for the allocation of Series brokerage. It is further understood that
the Manager may, in its discretion, use brokers who provide a Series with
research, analysis, advice and similar services to execute portfolio
transactions on behalf of the Series, and the Manager may pay to those brokers
in return for brokerage and research services a higher commission than may be
charged by other brokers, subject to the Manager determining in good faith that
such commission is reasonable in terms either of the particular transaction or
of the overall responsibility of the Manager to the Series and its other clients
and that the total
commissions paid by such Series will be reasonable inrelation to the benefits to
the Series over the long term.
It is understood that the Manager may, to the extent permitted by
applicable laws and regulations, aggregate securities to be sold or purchased
for any Series and for other clients in order to obtain the most favorable price
and efficient execution. In that event, allocation of the securities purchased
or sold, as well as expenses incurred in the transaction, will be made by the
Manager in the manner it considers to be the most equitable and consistent with
its fiduciary obligations to the Fund and to its other clients.
The Manager will promptly communicate to the officers and trustees of
the Fund such information relating to transactions for the Series as they may
reasonably request.
1. COMPENSATION OF THE MANAGER
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For the services to be rendered by the Manager as provided in Section
1 of this Agreement, the Fund shall pay to the Manager, at the end of each
month, a fee equal to one-twelfth of ___ percent of the daily average net assets
of the Series during the month. The value of net assets shall be determined in
accordance with definitions contained in the Fund's registration statement and
the applicable provisions of the 1940 Act. In the event that this Agreement is
terminated at other than a month-end, the fee for such month shall be prorated.
1. OTHER SERVICES
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At the request of the Fund, the Manager, in its discretion, may make
available to the Fund office facilities, equipment, personnel and other
services. Such office facilities, equipment, personnel and service shall be
provided for or rendered by the Manager and billed to the Fund at the Manager's
cost and, where applicable, the cost thereof shall, be apportioned among the
several Series of the Fund proportionate to their respective utilization
thereof.
1. REPORTS
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The Fund and the Manager agree to furnish to each other information
with regard to their respective affairs as each may reasonably request.
1. STATUS OF THE MANAGER
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The services of the Manager to the Fund or in respect of the Series,
are not to be deemed exclusive, and the Manager shall be free to render similar
services to others as long as its services to the Fund or in respect of the
Series, are not impaired thereby. The Manager shall be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Fund in any way or
otherwise be deemed an agent of the Fund.
1. LIABILITY OF MANAGER
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Except as provided below, in the absence of wilful misfeasance, bad
faith, gross negligence, or reckless disregard of obligations or duties
hereunder on the part of the Manager, the Manager shall not be subject to
liability to the Fund or to any shareholder of the Fund or its Series for any
act or omission in the course of, or connected with, rendering services
hereunder or for any losses that may be sustained in the purchase, holding or
sale of any security or the making of any investment for or on behalf of the
Series.
No provision of this Agreement shall be construed to protect any
Trustee or officer of the Fund, or the Manager, from liability in violation of
Sections 17(h), 17(i), 36(a) or 36 (b) of the 0000 Xxx.
1. PERMISSIBLE INTERESTS
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Subject to and in accordance with the Agreement and Declaration of
Trust of the Fund and the charter of the Manager, trustees, officers, and
shareholders of the Fund are or may be interested in the Manager (or any
successor thereof) as directors, officers or shareholders, or otherwise;
directors, officers, agents and shareholders of the Manager are or may be
interested in the Fund as trustees, officers, shareholders or otherwise; and the
Manager (or any successor) is or may be interested in the Fund as a shareholder
or otherwise and the effect of any such interrelationships shall be governed by
said agreement and declaration of trust and charter and the provisions of the
1940 Act.
1. DURATION AND TERMINATION
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This Agreement shall become effective on the date first written above
and shall continue in effect for a period of two years from such date, and
thereafter only if such continuance is approved at least annually by a vote of
the Fund's Board of Trustees, including the vote of a majority of the trustees
who are not parties to this Agreement or interested persons of any such party,
cast in person, at a meeting called for the purpose of voting on such approval.
In addition, the question of continuance of this Agreement may be presented to
the shareholders of the series; in such event, such continuance shall be
effected only if approved by the affirmative vote of the holders of a majority
of the outstanding voting securities of the series.
This Agreement may at any time be terminated without payment of any
penalty either by vote of the Board of Trustees of the Fund or by vote of the
holders of a majority of the outstanding voting securities of the Series, on
sixty days, written notice to the Manager.
This Agreement shall automatically terminate in the event of
its assignment.
This Agreement may be terminated by the Manager after ninety days'
written notice to the Fund.
Any notice under this Agreement shall be given in writing, addressed
and delivered, or mailed postpaid, to the other party at any office of such
party.
As used in this Section 9, the terms "assignment," "interested
persons," and a "vote of the holders of a majority of the outstanding voting
securities" shall have the respective meanings set forth in Section 2(a)(4),
Section 2(a)(19) and Section 2(a)(42) of the 1940 Act and Rule 18f-2 thereunder.
1. SEVERABILITY
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If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
11. GOVERNING LAW
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To the extent that state law has not been preempted by the provisions
of any law of the United States heretofore or hereafter enacted, as the same may
be amended from time to time, this Agreement shall be administered, construed
and enforced according to the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to
be executed an of the day and year first written above.
WILMINGTON TRUST COMPANY
By:
KIEWIT INVESTMENT TRUST
By:
Xxxxxxxxxx X. Xxxxxxx
President
