Exhibit 24(b)(6)
XXXXXX MUTUAL FUND
XXXXXX SQUARE DISTRIBUTORS, INC.
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is made this 19th day of
February, 1997, between Xxxxxx Mutual Fund, a Delaware business
trust (the "Fund"), and Xxxxxx Square Distributors, Inc., a
corporation organized under the laws of the State of Delaware
(the "Distributor"), having its principal place of business in
Wilmington, Delaware.
WHEREAS, the Fund is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company;
WHEREAS, the Fund is authorized to issue an unlimited number
of shares of beneficial interest ("Shares"), par value $0.01 per
share, and has registered certain of those duly authorized and
issued Shares under the Securities Act of 1933 (the "1933 Act");
WHEREAS, the Fund is further authorized to issue separate
series of Shares ("Series"), each Series corresponding with a
separate and distinct Fund "Portfolio", each Share representing
an undivided interest in the assets, subject to the liabilities,
allocated to a Portfolio, and each Portfolio having a separate
investment objective and separate investment policies;
WHEREAS, at the present time, the Fund consists of six
Portfolios, each planning to issue, pursuant to separate
Prospectuses, two classes of Shares, a "K Class" (subject to no
sales or distribution charges) and a "S Class" (subject to a
distribution charge pursuant to Rule 12b-1 under the 1940 Act, as
stipulated in the Fund's S Class Prospectus);
WHEREAS, the Distributor is engaged in the business of
promoting the distribution of securities of investment companies,
is registered as a broker-dealer under the securities Exchange
Act of 1934 (the "1934 Act"), and is a member in good standing of
the National Association of Securities Dealers, Inc. (the
"NASD");
WHEREAS, the Fund wishes to employ the services of
Distributor, with such assistance from its affiliates as the
latter may provide, for the purpose of selling and distributing
Shares within the K Class and the S Class of the Fund's various
Portfolios listed within Schedule A to this Agreement, such
employment to take effect as of the date first written above; and
WHEREAS, the Distributor wishes to provide distribution
services to the Fund as set forth below;
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein contained, the parties agree as follows:
1. Sale of Shares. During the term of this Agreement
the Fund grants to the Distributor the right to sell on its
behalf Shares of both the K Class and the S Class of each of the
Portfolios listed on Schedule A hereto, subject to the
registration requirements of the 1933 Act, and of the laws
governing the sale of securities in various states (the "Blue Sky
Laws"), under the terms and conditions set forth herein. In
connection therewith, the Distributor (i) shall have the right to
sell, as agent on behalf of the Fund, Shares authorized for issue
and registered under the 1933 Act and applicable Blue Sky Laws;
and (ii) shall sell such Shares only in compliance with the terms
set forth in the Fund's then currently effective registration
statement, with the Plan of Distribution of the Fund as may be in
effect from time to time for any Portfolio, and with any
limitations as may be imposed from time to time by the Board of
Trustees of the Fund. The Distributor is not obligated to sell
any specific number of shares.
2. Selling Dealer Agreements. Subject to the
supervisory authority of the Fund's Board of Trustees, the
Distributor may enter into selling dealer agreements with
selected dealers and others ("Selling Dealers") for the provision
of distribution services related to the sale of Fund Shares as
well as other shareholder services as may be agreed by the
affected parties. In entering into such selling agreements, the
Distributor will act only on its own behalf, as principal.
3. Sale of Shares by the Fund. The rights granted to
the Distributor shall be non-exclusive in that the Fund reserves
the right to sell its Shares to investors on applications
received and accepted by the Fund. Further, the Fund reserves
the right to issue Shares in connection with (a) the merger or
consolidation of the assets of, or acquisition by the Fund
through purchase or otherwise, with any other investment company,
trust or personal holding company; (b) the payment or
reinvestment of dividends or distributions; or (c) any offer of
exchange permitted by Section 11 of the 1940 Act.
4. Shares Covered by this Agreement. This Agreement
shall apply to all Shares within the K Class and the S Class of
all Portfolios of the Fund listed upon Schedule A; all such
Shares held in the Fund's treasury in the event that (in the
discretion of the Fund) treasury shares shall be sold; and all
such Shares repurchased by the Fund for resale.
5. Public Offering Price. Except as otherwise noted
in the Fund's current Prospectus (the "Prospectus") or Statement
of Additional Information (the "SAI") with respect to each
Portfolio, all Shares sold to investors by the Distributor or the
Fund will be sold at the public offering price without a sales
load. The public offering price for all accepted subscriptions
will be the net asset value per Share, determined in the manner
described in the Fund's current Prospectus or SAI with respect to
the applicable Portfolio. The Fund shall in all cases receive
the net asset value per Share on all such sales.
6. Suspension of Sales. If and whenever the
determination of net asset value is suspended and until such
suspension is terminated, no further orders for Shares shall be
processed by the Distributor except such unconditional orders
placed with the Distributor before it had knowledge of the
suspension. In addition, the Fund reserves the right to suspend
sales and the Distributor's authority to process orders for
Shares on behalf of the Fund if, in the judgment of the Fund, it
is in the best interests of the Fund to do so. Suspension will
continue for such period as may be determined by the Fund. In
addition, the Fund and Distributor reserve the right to reject
any purchase order.
7. Solicitation of Sales. In consideration of these
rights granted to the Distributor, the Distributor agrees to use
all reasonable efforts, consistent with its other business, to
secure purchasers for Shares of the Fund. This shall not prevent
the Distributor from entering into like arrangements (including
arrangements involving the payment of underwriting commissions)
with other issuers. Distributor agrees to use all reasonable
efforts to ensure that taxpayer identification numbers provided
for shareholders of the Fund are correct. This does not obligate
the Distributor to register as a broker or dealer under the Blue
Sky laws of any jurisdiction in which it is not now registered or
to maintain its registration in any jurisdiction in which it is
now registered.
8. Authorized Representations. The Distributor is
not authorized by the Fund to give any information or to make any
representations other than those contained in the appropriate
registration statements, Prospectuses or SAI's filed with the
Securities and Exchange Commission under the 1933 Act and
applicable Blue Sky Laws (as those registration statements,
Prospectuses and SAI's may be amended from time to time), or
contained in shareholder reports or other material that may be
prepared by or on behalf of the Fund for the Distributor's use.
This shall not be construed to prevent the Distributor from
preparing and distributing, in compliance with applicable laws
and regulations, sales literature or other material as it may
deem appropriate. Distributor will furnish or cause to be
furnished copies of such sales literature or other material to
the President of the Fund or his or her designee and will provide
that designee with a reasonable opportunity to comment on it.
Distributor agrees to take appropriate action to cease using such
sales literature or other material to which the Fund reasonably
objects as promptly as practicable after receipt of the
objection.
9. Registration of Shares. The Fund agrees that it
will take all action necessary to register shares of beneficial
interest of the Fund under the 1933 Act (subject to the necessary
approval, if any, of its shareholders) so that there will be
available for sale the number of Shares the Distributor may
reasonably be expected to sell. The Fund 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 of each Portfolio
of the Fund.
10. Repurchase of Shares. The Distributor as agent and for
the account of the Fund may repurchase Shares offered for resale
to it and redeem such Shares at their net asset value.
11. Expenses, Compensation and Reimbursement.
(a) The Fund shall pay all fees and expenses:
(i) in connection with the preparation, setting in type
and filing of any registration statement, Prospectus
and SAI under the 1933 Act, and any amendments
thereto, for the registration of its Shares;
(ii) in connection with the registration and
qualification of Shares for sale in the various
states in which the Fund's Board of Trustees shall
determine it advisable to qualify such shares for
sale (including registering the Fund or Portfolios as
a broker or dealer, or any officer of the Fund as
agent or salesperson, in any state);
(iii) of preparing, setting in type, printing and mailing
any report or other communication to shareholders of
the Fund in their capacity as such; and
(iv) of preparing, setting in type, printing and mailing
Prospectuses, SAI's, and any supplements thereto,
sent to existing shareholders.
(b) The Distributor shall pay costs of:
(i) printing and distributing Prospectuses, SAI's and
reports prepared for its use in connection with the
offering of Shares for sale to the public;
(ii) any other literature used in connection with such
offering;
(iii) advertising in connection with such offering
including, but not limited to the following: public
relations services, sales presentations, media
charges, preparation, printing and mailing of
advertising and sales literature, data processing
necessary to support a distribution effort, printing
and mailing prospectuses and distribution and
shareholder servicing activities of brokers/dealers
and other financial institutions; and
(iv) filing fees required by regulatory authorities for
sales literature and advertising materials and any
additional out-of-pocket expenses incurred in
connection with these and any other costs of
distribution.
(c) In addition to the services described above, Distributor
will provide services including assistance in the
production of marketing and advertising materials for the
sale of Shares of the Fund and their review for
compliance with applicable regulatory requirements.
(d) In connection with the services to be provided by the
Distributor under this Agreement, the Distributor shall
receive:
(i) from the Fund, in connection with the sale and
distribution of the Fund's S Class Shares, such payments
as shall be authorized to be paid by the Fund pursuant to
any Plan of Distribution adopted by the Fund in
accordance with Rule 12b-1 under the 1940 Act; and
(ii) from the Fund's Administrative Services Agent,
Kiewit Investment Management Corp., reimbursement for
fees and expenses incurred by the Distributor in
connection with the sale and distribution of the Fund's K
Class Shares to include, without limitation, fees and
expenses detailed in Section 11(b) above.
12. Indemnification.
(a) The Fund agrees to indemnify and hold harmless the
Distributor and each of its trustees and officers and
each person, if any, who controls the Distributor within
the meaning of Section 15 of the 1933 Act against any
loss, liability, claim, damages or expense (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 of
beneficial interest of the Fund, based upon the 1933 Act
or any other statute or common law, alleging any wrongful
act of the Fund or any of its employees or
representatives, or based upon the grounds that the
registration statements, Prospectuses, SAI's, shareholder
reports or other information filed or made public by the
Fund (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. However, the Fund
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 the Fund in writing by or on
behalf of the Distributor. In no case (i) is the
indemnity of the Fund in favor of the Distributor or any
person indemnified to be deemed to protect the
Distributor or any person against any liability to the
Fund or its security holders to which the Distributor or
such person would otherwise be subject by reason of
willful misfeasance, bad faith or ordinary 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 Fund to be liable under
its indemnity agreement contained in this Section 12(a)
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 the Fund in
writing of the claim within a reasonable time after the
summons or other first written notification giving
information of the nature of the claim 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, except to
the extent the Fund is harmed thereby, failure to notify
the Fund of any claim shall not relieve the Fund from any
liability which it may have to the Distributor or any
person against whom such action is brought other than on
account of its indemnity agreement contained in this
Section 12(a). The Fund 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, but if the Fund elects to assume the defense, the
defense shall be conducted by counsel chosen by it and
satisfactory to the Distributor, or person or persons,
defendant or defendants in the suit. In the event the
Fund elects to assume the defense of any suit and retain
counsel, the Distributor, officers or trustees or
controlling person(s) or defendant(s) in the suit, shall
bear the fees and expenses of any additional counsel
retained by them. If the Fund does not elect to assume
the defense of any suit, it will reimburse the
Distributor, officers or trustee or controlling person(s)
or defendant(s) in the suit, for the reasonable fees and
expenses of any counsel retained by them. The Fund
agrees to notify the Distributor promptly of the
commencement of any litigation or proceedings against it
or any of its officers or Trustees in connection with the
issuance or sale of any of the Shares.
(b) The Distributor also covenants and agrees that it will
indemnify and hold harmless the Fund and each of its
trustees and officers and each person, if any, who
controls the Fund within the meaning of Section 15 of the
1933 Act, against any loss, liability, damages, claim 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 1933 Act or any
other statute or common law, alleging any wrongful act of
the Distributor or any of its employees or
representatives, or alleging that the registration
statements, Prospectuses, SAI's, shareholder reports or
other information filed or made public by the Fund (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 in writing to the Fund by or
on behalf of the Distributor. In no case (i) is the
indemnity of the Distributor in favor of the Fund or any
person indemnified to be deemed to protect the Fund or
any person against any liability to which the Fund or
such person would otherwise be subject by reason of
willful misfeasance, bad faith or gross 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 Section 12(b)
with respect to any claim made against the Fund or any
person indemnified unless the Fund or person, as the case
may be, shall have notified the Distributor in writing of
the claim within a reasonable time after the summons or
other first written notification giving information of
the nature of the claim shall have been served upon the
Fund or any such person or after the Fund 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 the Fund or any person
against whom the action is brought other than on account
of its indemnity agreement contained in this Section
12(b). 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 any claims, but if the
Distributor elects to assume the defense, the defense
shall be conducted by counsel chosen by it and
satisfactory to the Fund, to its officers and trustees
and to any controlling person(s) or any defendants(s) in
the suit. In the event the Distributor elects to assume
the defense of any suit and retain counsel, the Fund or
controlling person(s) or defendant(s) in the suit, shall
bear the fees and expenses of any additional counsel
retained by them. If the Distributor does not elect to
assume the defense of any suit, it will reimburse the
Fund, its officers or Trustees, controlling person(s) or
defendant(s) in the suit, for the reasonable fees and
expenses of any counsel retained by them. The
Distributor agrees to notify the Fund promptly of the
commencement of any litigation or proceedings against it
in connection with the issue and sale of any of the
Shares.
13. Liability of the Distributor. The Distributor shall
not be liable for any damages or loss suffered by the Fund in
connection with the matters to which this Agreement relates,
except for damage or loss resulting from willful misfeasance, bad
faith or gross negligence on the Distributor's part in the
performance, or reckless disregard, of its duties under this
Agreement. Any person, even though also an officer, partner,
employee or agent of the Distributor, or any of its affiliates,
who may be or become an officer of the Fund, shall be deemed,
when rendering services to or acting on any business of the Fund
in any such capacity (other than services or business in
connection with the Distributor's duties under this Agreement),
to be rendering such services to or acting solely for the Fund
and not as an officer, partner, employee or agent or one under
the control or direction of the Distributor or any of its
affiliates, even if paid by the Distributor or an affiliate
thereof.
14. Acts of God, etc. The Distributor shall not be liable
for any delays or errors occurring by reason of circumstances not
reasonably foreseeable and beyond its control, including but not
limited to acts of civil or military authority, national
emergencies, work stoppages, fire, flood, catastrophe, acts of
God, insurrection, war, riot or failure of communication or power
supply. In addition, in the event of equipment breakdowns which
are (i) beyond the reasonable control of the Distributor and (ii)
not primarily attributable to the failure of the Distributor to
reasonable maintain or provide for the maintenance of such
equipment, the Distributor shall, at no additional expense to the
Fund, take reasonable steps in good faith to minimize service
interruptions but shall have no liability with respect thereto.
15. Effectiveness, Termination, etc. This Agreement shall
become effective as of the date first written above, and unless
terminated as provided, shall continue in force for two (2) years
from the date of its execution and thereafter from year to year,
provided continuance is approved at least annually by either (i)
the vote of a majority of the trustees of the Fund, or by the
vote of a majority of the outstanding voting securities of the
Fund, and (ii) the vote of a majority of those trustees of the
Fund who are not interested persons of the Fund and who are not
parties to this Agreement or interested persons of any party,
cast in person at a meeting called for the purpose of voting on
the approval. This Agreement shall automatically terminate in
the event of its assignment. As used in this Section 15, the
terms "vote of a majority of the outstanding voting securities,"
"assignment" and "interested person" shall have the respective
meanings specified in the 1940 Act and the rules enacted
thereunder as now in effect or as hereafter amended. In addition
to termination by failure to approve continuance or by
assignment, this Agreement may at any time be terminated without
the payment of any penalty by vote of a majority of the trustees
of the Fund who are not interested persons of the Fund, or by
vote of a majority of the outstanding voting securities of the
Fund, on not more than sixty (60) days' written notice to the
Fund. This Agreement may be terminated by the Distributor upon
not less than sixty (60) days' prior written notice to the Fund.
16. Amendments. The Distributor and the Fund shall
regularly consult with each other regarding Distributor's
performance of its obligations and its compensation under the
foregoing provisions. In connection therewith, the Fund shall
submit to Distributor at a reasonable time in advance of filing
with the SEC copies of any amended or supplemented registration
statement of the Fund (including exhibits) under the 1933 Act,
and the 1940 Act, and, a reasonable time in advance of their
proposed use, copies of any amended or supplemented forms
relating to any plan, program or service offered by the Fund.
Any change in such materials that would require any change in
Distributor's obligations under the foregoing provisions shall be
subject to the burdened party's approval, which shall not be
unreasonably withheld. In the event that a change in such
documents or in the procedures contained therein increases the
cost or potential liability to the Distributor in performing its
obligations hereunder by more than an insubstantial amount,
Distributor shall be entitled to receive reasonable compensation
therefor.
This Agreement may be amended at any time by mutual consent
of the parties, provided that such consent on the part of the
Fund shall have been approved (i) by the Trustees of the Fund, or
by a vote of a majority of the outstanding voting securities of
the Fund, and (ii) by vote of a majority of the Trustees of the
Fund who are not interested persons of the Distributor or of the
Fund cast in person at a meeting called for the purpose of voting
on such amendment.
17. Notice. Any notice under this Agreement shall be given
in writing addressed and hand delivered or sent by registered or
certified mail, postage prepaid, to the other party to this
Agreement at its principal place of business.
18. Severability. 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.
19. Governing Law. 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 (without regard, however, to laws
as to conflicts of law) of the State of Delaware.
20. Shareholder Liability. Distributor acknowledges that
it has received notice of and accepts the limitations of
liability set forth in the Fund's Agreement and Declaration of
Trust. Distributor agrees that the Fund's obligations hereunder
shall be limited to the Fund, and that Distributor shall have
recourse solely against the assets of the Portfolio with respect
to which the Fund's obligations hereunder relate and shall have
no recourse against the assets of any other Portfolio or against
any shareholder, Trustee, officer, employee, or agent of the
Fund.
21. Miscellaneous. Each party agrees to perform such
further acts and execute such further documents as are necessary
to effectuate the purposes hereof. 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 be executed in two counterparts, each of which taken together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
XXXXXX MUTUAL FUND
By: _____________________________
Xxx X. XxXxxxxxx, President
XXXXXX SQUARE DISTRIBUTORS, INC.
By: _____________________________
Xxxxxxx X. Xxxxxxx, President
Acknowledgment as to reimbursement of fees and
expenses incurred by Xxxxxx Square Distributors, Inc.,
as Distributor of the Fund's K Class Shares:
KIEWIT INVESTMENT MANAGEMENT CORP.
as Administrative Services Agent
By: _____________________________
Xxx X. XxXxxxxxx, President
Date: ___________________________
DISTRIBUTION AGREEMENT
SCHEDULE A
XXXXXX MUTUAL FUND
Portfolio Listing
Kiewit Money Market Portfolio
Kiewit Government Money Market Portfolio
Kiewit Short-Term Government Portfolio
Kiewit Intermediate-Term Bond Portfolio
Kiewit Tax-Exempt Portfolio
Kiewit Equity Portfolio
