EXHIBIT 24 (B) 6
KIEWIT MUTUAL FUND
PROVIDENT DISTRIBUTORS, INC.
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is made this 25th day of February, 1998,
between Kiewit Mutual Fund, a Delaware business trust (the "Fund"), having its
principal place of business in Omaha Nebraska, and Provident 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
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the right to sell, as agent on behalf of the Fund, Shares authorized for issue
and registered under the 1933 Act; 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.
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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 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 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:
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(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 Investment Adviser,
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 directors 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
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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 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 trustees 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
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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 defendant(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 any
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 the
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,
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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 reasonably 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 not 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 note 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. AMENDMENT. 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 of the party 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.
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17. NOTICE. Any notice under this Agreement shall be given in writing
addressed and hand delivered or sent by registered or certified mail, postage
prepared, 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 related 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.
KIEWIT MUTUAL FUND
By: /s/ XXXXXXXXXX G. XXXXXXX
Xxxxxxxxxx X. Xxxxxxx, President
PROVIDENT DISTRIBUTORS, INC.
By: /s/ XXXXXX XXXXXXX
Acknowledgment as to reimbursement of fees and
expenses incurred by Provident Distributors, Inc.
as Distributor of the Fund's K Class Shares:
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KIEWIT INVESTMENT MANAGEMENT CORP.
as Investment Advisor
By: /s/ XXXXXXXXXX XXXXXXX
Date: February 25, 1998
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DISTRIBUTION AGREEMENT
SCHEDULE A
KIEWIT 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
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