SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form N-1A
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 ( )
Amendment No. 1 (X)
KIEWIT INVESTMENT TRUST
(Exact Name of Registrant as Specified in Charter)
1000 Kiewit Plaza, Omaha, NE 68131-3374
(Address of Principal Executive Offices (Zip Code)
Registrant's Telephone Number, Including Area Code (402) 342-2052
Kenneth D. Gaskins, Esq., 1000 Kiewit Plaza, Omaha, NE 68131-3374
(Name and Address of Agent for Service of Process)
_______________
Please Send Copy of Communications to:
Joseph V. Del Raso, Esq.
Stradley, Ronon, Stevens & Young, LLP
2600 One Commerce Square
Philadelphia, PA 19103
KIEWIT INVESTMENT TRUST
Kiewit Money Market Series
Kiewit Government Money Market Series
Kiewit Short-Term Government Series
Kiewit Intermediate-Term Bond Series
Kiewit Tax-Exempt Series
Kiewit Equity Series
FORM N-1A, Part A:
Responses to Items 1 through 3 have been omitted pursuant to
paragraph 4 of Instruction F of the General Instructions to Form
N-1A.
Item 4. General Description of Registrant
(a)(i) Kiewit Investment Trust (the "Trust") is an open-end
management investment company organized as a Delaware business
trust on January 23, 1997 and registered under the Investment
Company Act of 1940 (the "1940 Act"). The Trust issues six
series, each of which operates as a diversified, open-end
management investment company and represents a separate class of
the Trust's shares of beneficial interest: Kiewit Money Market
Series, Kiewit Government Money Market Series, Kiewit Short-Term
Government Series, Kiewit Intermediate-Term Bond Series, Kiewit
Tax-Exempt Series, and Kiewit Equity Series (referred to herein
collectively as the "Series" and individually as a "Series").
Kiewit Investment Management Corp. (the "Manager") serves as
investment manager of each Series.
The investment objectives, policies and investment limitations of
each Series are set forth below. The investment objective of
each Series is not fundamental and may be changed by the Board of
Trustees without shareholder approval. The Trust sells its
shares to institutional investors only. Shares of each Series
may be issued for cash and/or securities in which a Series is
authorized to invest. In addition, when acquiring securities
from an institutional investor in consideration of the issuance
of its shares, a Series may accept securities from the transferor
which it would not otherwise purchase pursuant to its investment
policies, as described below. Any such acquisition would be very
small in relation to the then total current value of the assets
acquired by a Series in any such transaction.
(a)(ii) Investment Objectives and Policies
Kiewit Money Market Series
The investment objective of the Kiewit Money Market Series is to
provide high current income while maintaining a stable share
price by investing in short-term money market securities. The
Series invests in U.S. dollar-denominated money market
instruments that mature in 13 months or less, maintains an
average weighted maturity of 90 days or less and limits its
investments to those which the Board of Trustees determines
present minimal credit risks.
The Series will invest in the following money market obligations
issued by financial institutions, nonfinancial corporations, and
the U.S. Government, state and municipal governments and their
agencies or instrumentalities:
(1) United States Treasury obligations including bills, notes,
bonds and other debt obligations issued by the United States
Treasury. These securities are backed by the full faith and
credit of the U.S. Government.
(2) Obligations of agencies and instrumentalities of the U.S.
Government which are supported by the full faith and credit
of the U.S. Government, such as securities of the Government
National Mortgage Association, or which are supported by the
right of the issuer to borrow from the U.S. Treasury, such
as securities issued by the Federal Financing Bank; or which
are supported by the credit of the agency or instrumentality
itself, such as securities of Federal Farm Credit Banks.
(3) Repurchase agreements that are fully collateralized by the
securities listed in (1) and (2) above.
(4) Commercial paper rated in the two highest categories of
short-term debt ratings of any two Nationally Recognized
Statistical Ratings Organizations ("NRSROs"), (such as
Moody's Investor Services, Inc. and Standard & Poor's Rating
Services) or, if unrated, issued by a corporation having
outstanding comparable obligations that are rated in the two
highest categories of short-term debt ratings.
(5) Corporate obligations having a remaining maturity of 397
calendar days or less, issued by corporations having
outstanding comparable obligations that are (a) rated in the
two highest categories of any two NRSROs or (b) rated no
lower than the two highest long-term debt ratings categories
by any NRSRO.
(6) Obligations of U.S. banks, such as certificates of deposit,
time deposits and bankers acceptances. The banks must have
total assets exceeding $1 billion.
(7) Short-term Eurodollar and Yankee obligations of banks having
total assets exceeding one billion dollars. Eurodollar bank
obligations are dollar-denominated certificates of deposit
or time deposits issued outside the U.S. capital markets by
foreign branches of U.S. banks or by foreign banks; Yankee
bank obligations are dollar-denominated obligations issued
in the U.S. capital markets by foreign banks.
The Series will not invest more than 5% of its total assets in
the securities of a single issuer. With respect to any security
rated in the second highest rating category by an NRSRO, the
Series will not invest more than (i) 1% of its total assets in
such securities issued by a single issuer and (ii) 5% of its
total assets in such securities of all issuers. Up to 10% of the
Series' net assets may be invested in "restricted" and other
illiquid money market securities, which are not freely marketable
or which are not freely marketable under the Securities Act of
1933 (the "1933 Act").
The Series may invest in repurchase agreements. A repurchase
agreement is a means of investing monies for a short period. In
a repurchase agreement, a seller--a U.S. commercial bank or
recognized U.S. securities dealer--sells securities to the Series
and agrees to repurchase the securities at the Series' cost plus
interest within a specified period (normally one day). In these
transactions, the securities purchased by the Series will have a
total value equal to or in excess of the value of the repurchase
agreement, and will be held by the Series' custodian bank until
repurchased. Under the Investment Company Act of 1940 (the "1940
Act"), a repurchase agreement is deemed to be the loan of money
by the Series to the seller, collateralized by the underlying
securities.
Eurodollar and Yankee obligations are subject to the same risks
that pertain to domestic issues, notably credit risk, market risk
and liquidity risk. Additionally, Eurodollar (and to a limited
extent, Yankee) obligations are subject to certain sovereign
risks. One such risk is the possibility that a foreign
government might prevent dollar-denominated funds from flowing
across its borders. Other risks include: adverse political and
economic developments in a foreign country; the extent and
quality of government regulation of financial markets and
institutions; the imposition of foreign withholding taxes; and
expropriation or nationalization of foreign issuers. However,
Eurodollar and Yankee obligations will undergo the same credit
analysis as domestic issues in which the Series invests, and
foreign issuers will be required to meet the same tests of
financial strength as the domestic issuers approved for the
Series.
Kiewit Government Money Market Series
The investment objective of the Kiewit Government Money Market
Series is to provide as high a level of current income as is
consistent with maintaining a stable share price and a rating in
the highest category of short-term debt ratings by an NRSRO by
investing in securities issued by the U.S. government, its
agencies or instrumentalities. The Series invests in U.S.
dollar-denominated money market instruments that mature in 13
months or less and will maintain an average weighted maturity of
60 days or less.
The Series will invest in the following money market obligations
issued by the U.S. government, its agencies or instrumentalities:
(1) United States Treasury obligations including bills, notes,
bonds and other debt obligations issued by the United States
Treasury. These securities are backed by the full faith and
credit of the United States government
(2) Obligations of agencies and instrumentalities of the U.S.
Government which are supported by the full faith and credit
of the U.S. Government, such as securities of the Government
National Mortgage Association, or which are supported by the
right of the issuer to borrow from the U.S. Treasury, such
as securities issued by the Federal Financing Bank; or which
are supported by the credit of the agency or instrumentality
itself, such as securities of Federal Farm Credit Banks.
(3) Repurchase agreements that are fully collateralized by the
securities listed in (1) and (2) above.
The Series has and will maintain an AAAm credit rating from
Standard & Poor's Rating Group. The AAAm credit rating indicates
that the Series is composed exclusively of investments that are
rated AAA and/or eligible short-term investments.
The Series may invest in repurchase agreements. A repurchase
agreement is a means of investing monies for a short period. In
a repurchase agreement, a seller--a U.S. commercial bank or
recognized U.S. securities dealer--sells securities to the Series
and agrees to repurchase the securities at the Series' cost plus
interest within a specified period (normally one day). In these
transactions, the securities purchased by the Series will have a
total value equal to or in excess of the value of the repurchase
agreement, and will be held by the Series' custodian bank until
repurchased. Under the Investment Company Act of 1940 (the "1940
Act"), a repurchase agreement is deemed to be the loan of money
by the Series to the seller, collateralized by the underlying
securities.
Kiewit Short-Term Government Series
The investment objective of the Kiewit Short-Term Government
Series is to provide investors with as high a level of current
income as is consistent with the maintenance of principal and
liquidity. The Series invests at least 65% of its assets in U.S.
Treasury securities and U.S. Government agency securities. The
Series may also invest in repurchase agreements collateralized by
U.S. Treasury or U.S. Government agency securities. In an effort
to minimize fluctuations in market value, the Series will
maintain a dollar weighted-average maturity between one and three
years.
U.S. Government agency securities are debt obligations of
agencies and instrumentalities of the U.S. Government which are
supported by the full faith and credit of the U.S. Government,
such as securities of the Government National Mortgage
Association; or which are supported by the right of the issuer to
borrow from the U.S. Treasury, such as securities issued by the
Federal Financing Bank; or which are supported by the credit of
the agency or instrumentality itself, such as securities of
Federal Farm Credit Banks.
Kiewit Intermediate-Term Bond Series
The investment objective of the Kiewit Intermediate-Term Bond
Series is to provide as high a level of current income as is
consistent with reasonable risk. It seeks to achieve its
objective by investing substantially all of its total assets in a
diversified portfolio of the following investment grade debt
securities: U.S. Treasury and U.S. Government agency securities,
mortgage-backed securities, asset-backed securities and corporate
bonds. The Series may also invest in repurchase agreements
collateralized by U.S. Treasury and U.S. Government agency
securities and other short-term debt securities. Under normal
circumstances, the Series will have an average effective maturity
(i.e., the market value weighted average time to repayment of
principal) of between three and ten years.
Debt securities rated by an NRSRO, in the lowest investment grade
debt category, have speculative characteristics; a change in
economic conditions could lead to a weakened capacity of the
issuer to make principal and interest payments. To the extent
that the rating of a debt obligation held by the Series falls
below investment grade, the Series, as soon as practicable, will
dispose of the security, unless such disposal would be
detrimental to the Series in light of market conditions.
The Series may invest in both fixed and variable or floating rate
instruments. Variable and floating rate securities bear interest
at rates which vary with changes in specified market rates or
indices, such as a Federal Reserve composite index. The interest
rate on these securities may be reset daily, weekly, quarterly or
some other reset period, and may have a floor or ceiling on
interest rate changes. There is a risk that the current interest
rate on such securities may not accurately reflect existing
market interest rates. Some of these securities carry a demand
feature which permits the Series to sell them during a
predetermined time period at par value plus accrued interest.
The demand feature is often backed by a credit instrument, such
as a letter of credit, or by a creditworthy insurer. The Series
may rely on such instrument or the creditworthiness of the
insurer in purchasing a variable or floating rate security.
Kiewit Tax-Exempt Series
The investment objective of the Kiewit Tax-Exempt Series is to
provide as high a level of current income exempt from federal
income tax as is consistent with reasonable risk. Because of
this emphasis, capital appreciation is not an investment
objective. The Series pursues its objective by investing
primarily in municipal obligations whose interest is, in the
opinion of counsel to the issuer, exempt from federal income tax.
As a fundamental policy, the Series will normally invest at
least 80% of its net assets in securities the interest on which
is exempt from federal income tax, including the alternative
minimum tax. However, the Series may invest up to 20% of its net
assets in municipal securities, the interest on which is a
preference item for purposes of the federal alternative minimum
tax ("AMT bonds"). When the Manager is unable to locate
investment opportunities with desirable risk/reward
characteristics, the
Series may invest up to 20% of its net assets in the following:
cash, cash equivalent short-term obligations, certificates of
deposit, commercial paper, obligations issued or guaranteed by
the U.S. Government or any of its agencies or instrumentalities,
and repurchase agreements.
Municipal obligations are issued by states, territories and
possessions of the United States and the District of Columbia and
their political subdivisions, agencies and instrumentalities to
raise money for various public purposes. Municipal obligations
consist of general obligation bonds, revenue bonds and notes.
General obligation bonds are backed by the issuer's pledge of its
full faith, credit and taxing power for the payment of principal
and interest and are considered the safest type of municipal
investment. Revenue bonds are backed by revenues derived from a
specific project, facility or revenue source. At times, the
Series may invest more than 25% of the value of its assets in
industrial development bonds, a type of revenue bond. Although
issued by a public authority, some industrial revenue bonds may
be backed only by the credit and security of a private issuer and
may involve greater credit risk. Municipal notes are issued to
finance short-term capital needs of a municipality and include
tax and revenue anticipation notes, bond anticipation notes and
commercial paper. Municipal obligations bear fixed, floating and
variable rates of interest.
AMT bonds are tax-exempt "private activity" bonds issued after
August 7, 1986, whose proceeds are directed at least in part to a
private, for-profit organization. While the income from AMT
bonds is exempt from regular federal income tax, it is a tax
preference item for purposes of the alternative minimum tax. The
alternative minimum tax is a special separate tax that applies to
a limited number of taxpayers who have certain adjustments to
income or tax preference items.
The Series also may invest up to 5% of its total assets in the
following municipal-based obligations: municipal lease
obligations, inverse floaters, tender option bonds, when-issued
securities and zero coupon bonds. See Item 13 below for a
discussion of these types of investments.
The Series may invest in the various types of municipal
securities in any proportion. Although the Series does not
currently intend to do so on a regular basis, it may invest more
than 25% of its assets in tax-exempt securities that are
repayable out of revenue streams generated from economically
related projects or facilities, if such investment is deemed
necessary or appropriate by the Manager. To the extent that the
Series' assets are concentrated in tax-exempt securities payable
from revenues on economically related projects and facilities,
the Series will be subject to the risks presented by such
projects to a greater extent than it would be if the Series'
assets were not so concentrated.
The Series will invest only in investment grade obligations, or
if unrated, in obligations that the Manager determines to be of
comparable quality. The Series will have an average effective
maturity (i.e., the market value weighted average time to
repayment of principal) of between three and ten years.
Kiewit Equity Series
The investment objective of the Kiewit Equity Series is to
achieve long-term capital appreciation. The Series invests
primarily in a diversified portfolio of equity securities,
including common stocks, preferred stocks and securities
convertible into common stock, which, in the Manager's opinion,
are undervalued in the marketplace at the time of purchase.
Dividend income is an incidental consideration compared to growth
in capital. In selecting securities for the Series, the Manager
may evaluate factors it believes are likely to affect long-term
capital appreciation such as the issuer's background, industry
position, historical returns on equity and experience and
qualifications of the management team. The Manager may rotate
the Series' holdings among various market sectors based on
economic analysis of the overall business cycle. Under normal
conditions, at least 65 percent of the Series' net assets will be
invested in equity securities.
The Series invests in equity securities only if they are listed
on registered exchanges or actively traded in the over-the-
counter market. Under normal circumstances the Series, to the
extent not invested in the securities described above, may invest
in investment grade securities issued by corporations and U.S.
Government securities. In order to meet liquidity needs, the
Series may hold cash reserves and invest in money market
instruments (including securities issued or guaranteed by the
U.S. Government, its agencies or instrumentalities, repurchase
agreements, certificates of deposit and bankers acceptances
issued by banks or savings and loan associations, and commercial
paper) rated at time of purchase in the top two categories by an
NRSRO or determined to be of comparable quality by the Manager at
the time of purchase.
The Series may also purchase and sell American Depository
Receipts ("ADRs"). ADRs are receipts typically issued by a U.S.
bank or trust company which evidence ownership of underlying
securities issued by a foreign corporation. Generally, ADRs in
registered form are designed for use in the U.S. securities
markets. The Series may invest in ADRs through "sponsored" or
"unsponsored" facilities. A sponsored facility is established
jointly by the issuer of the underlying security and a
depository, whereas a depository may establish an unsponsored
facility without participation of the issuer of the deposited
security. The Series does not consider any ADR purchase to be
foreign. Holders of unsponsored ADRs generally bear all the
costs of such facilities and the depository of an unsponsored
facility frequently is under no obligation to distribute
shareholder communications received from the issuer of the
deposited security or to pass through voting rights to the
holders of such receipts in respect of the deposited securities.
Therefore, there may not be a correlation between information
concerning the issuer of the security and the market value of an
unsponsored ADR.
The Series may invest in convertible securities issued by U.S.
companies. Convertible debentures include corporate bonds and
notes that may be converted into or exchanged for common stock.
These securities are generally convertible either at a stated
price or a stated rate (that is, for a specific number of shares
of common stock or other security). As with other fixed income
securities, the price of a convertible debenture to some extent
varies inversely with interest rates. While providing a fixed-
income stream, a convertible debenture also affords the investor
an opportunity, through its conversion feature, to participate in
the capital appreciation of the common stock into which it is
convertible. Common stock acquired by the Series upon conversion
of a convertible debenture will generally be held for so long as
the Manager anticipates such stock will provide the Series with
opportunities which are consistent with the Series' investment
objective and policies.
For temporary defensive purposes when the Manager determines that
market conditions warrant, the Series may invest up to 100% of
its assets in the money market instruments described above and
other short-term debt instruments that are rated, at the time of
purchase, investment grade, and may hold a portion of its assets
in cash.
Item 4(b) Other Investment Policies
Other Registered Investment Companies: Each Series reserves the
right to invest in the shares of other registered investment
companies. By investing in shares of investment companies, a
Series would indirectly pay a portion of the operating expenses,
management expenses and brokerage costs of such companies as well
as the expense of operating the Series. Thus, the Series'
investors may pay higher total operating expenses and other costs
than they might pay by owning the underlying investment companies
directly. The Manager will attempt to identify investment
companies that have demonstrated superior management in the past,
thus possibly offsetting these factors by producing better
results and/or lower expenses than other investment companies
with similar investment objectives and policies. There can be no
assurance that this result will be achieved. However, the
Manager will waive its advisory fee with respect to the assets of
a Series invested in other investment companies, to the extent of
the advisory fee charged by any investment adviser to such
investment company. In addition, the 1940 Act limits investment
by a Series in shares of other investment companies to no more
than 10% of the value of the Series' total assets.
Securities Loans: Each Series may lend securities to qualified
brokers, dealers, banks and other financial institutions for the
purpose of earning additional income. While a Series may earn
additional income from lending securities, such activity is
incidental to the investment objective of a Series. The value of
securities loaned may not exceed 33 1/3% of the value of a
Series' total assets. In connection with such loans, a Series
will receive collateral consisting of cash or U.S. Government
securities, which will be maintained at all times in an amount
equal to at least 100% of the current market value of the loaned
securities. In addition, the Series will be able to terminate the
loan at any time, will retain the authority to vote the loaned
securities and will receive reasonable interest on the loan, as
well as amounts equal to any dividends, interest or other
distributions on the loaned securities. In the event of the
bankruptcy of the borrower, the Trust could experience delay in
recovering the loaned securities. Management believes that this
risk can be controlled through careful monitoring procedures.
Reverse Repurchase Agreements: A Series may enter into reverse
repurchase agreements with banks and broker-dealers. Reverse
repurchase agreements involve sales by a Series of its assets
concurrently with an agreement by the Series to repurchase the
same assets at a later date at a fixed price. A Series will
establish a segregated account with its custodian bank in which
it will maintain cash, U.S. government securities or other liquid
obligations equal in value to its obligations with respect to
reverse repurchase agreements.
Options: The Kiewit Short-Term Government Series, Kiewit
Intermediate-Term Bond Series and Kiewit Equity Series each may
sell and/or purchase exchange-traded call options and purchase
exchange-traded put options on securities in their portfolios.
Options will be used to generate income and to protect against
price changes and will not be engaged in for speculative
purposes. The aggregate value of option positions may not exceed
10% of each Series' net assets as of the time the Series enters
into such options.
A put option gives the purchaser of the option the right to sell,
and the writer the obligation to buy, the underlying security at
any time during the option period. A call option gives the
purchaser of the option the right to buy, and the writer of the
option the obligation to sell, the underlying security at any
time during the option period. The premium paid to the writer is
the consideration for undertaking the obligations under the
option contract. There are risks associated with option
transactions including the following: (i) the success of an
options strategy may depend on the ability of the Manager to
predict movements in the prices of the individual securities,
fluctuations in markets and movements in interest rates; (ii)
there may be an imperfect correlation between the changes in
market value of the securities held by a Series and the prices of
options; (iii) there may not be a liquid secondary market for
options; and (iv) while a Series will receive a premium when it
writes covered call options, it may not participate fully in a
rise in the market value of the underlying security.
Item 4(c) Risk Factors - All Series
Each Series has reserved the right to borrow amounts not
exceeding 33% of its net assets for the purposes of making
redemption payments. When advantageous opportunities to do so
exist, a Series may also borrow amounts not exceeding 5% of the
value of the Series' net assets for the purpose of purchasing
securities. Such purchases can be considered to result in
"leveraging", and in such circumstances, the net asset value of
the Series may increase or decrease at a greater rate than would
be the case if the Series had not leveraged. A Series would
incur interest on the amount borrowed and if the appreciation and
income produced by the investments purchased when the Series has
borrowed are less than the cost of borrowing, the investment
performance of the Series may be further reduced as a result of
leveraging.
In addition, each Series may invest in repurchase agreements and
reverse repurchase agreements. The use of repurchase agreements
involves certain risks. For example, if the seller of the
agreement defaults on its obligation to repurchase the underlying
securities at a time when the value of these securities has
declined, a Series may incur a loss upon disposition of them. If
the seller of the agreement becomes insolvent and subject to
liquidation or reorganization under the bankruptcy code or other
laws, a bankruptcy court may determine that the underlying
securities are collateral not within the control of the Series
and therefore subject to sale by the trustee in bankruptcy.
Finally, it is possible that a Series may not be able to
substantiate its interest in the underlying securities. While
the Trust's management acknowledges these risks, it is expected
that they can be controlled through stringent security selection
and careful monitoring. Reverse repurchase agreements involve
the risk that the market value of the securities retained by the
Series may decline below the price of the securities the Series
has sold but is obligated to repurchase under the agreement. In
the event the buyer of securities under a reverse repurchase
agreement files for bankruptcy or become insolvent, the Series'
use of the proceeds of the agreement may be restricted pending a
determination by the other party, or its trustee or receiver,
whether to enforce the Series' obligation to repurchase the
securities. Reverse repurchase agreements are considered
borrowings by the Series and as such are subject to the
investment limitations discussed above.
The mortgage-backed and asset-backed securities in which the
Kiewit Intermediate-Term Bond Series may invest differ from
conventional bonds in that principal is paid back over the life
of the security rather than at maturity. As a result, the holder
of those types of securities (the Series) receives monthly
scheduled payments of principal and interest, and may receive
unscheduled principal payments representing prepayments on the
underlying mortgages or assets. Such prepayments occur more
frequently during periods of declining interest rates. When the
holder reinvests the payments and any unscheduled prepayments of
principal it receives, it may receive a rate of interest which is
lower than the rate on the existing mortgage-backed and asset-
backed securities. For this reason, these securities may be less
effective than other types of securities as a means of "locking
in" long-term interest rates.
The market value of mortgage securities, like other debt
securities, generally varies inversely with changes in market
interest rates, declining when interest rates rise and rising
when interest rates decline. However, mortgage securities, due
to changes in the rates of prepayments on the underlying
mortgages, may experience less capital appreciation in declining
interest rate environments and greater capital losses in periods
of increasing interest rates than other investments of comparable
maturities.
In addition, to the extent mortgage securities are purchased at a
premium, mortgage foreclosures and unscheduled principal
prepayments may result in some loss of the holders' principal
investment to the extent of the premium paid. On the other hand,
if mortgage securities are purchased at a discount, both a
scheduled payment of principal and an unscheduled prepayment of
principal increases current and total returns and accelerates the
recognition of income which, when distributed to shareholders, is
taxable as ordinary income.
Item 5. Management of the Trust
(a) The Trust was organized as a Delaware business trust. Under
Delaware law, the Trust's Board of Trustees is responsible for
establishing Trust policies and for overseeing the management of
the Trust.
(b)(i) Kiewit Investment Management Corp. (the "Manager"),
1000 Kiewit Plaza, Omaha, NE 68131-3374, serves as the investment
manager to each of the Series. The Manager was organized in 1994
for the purpose of providing investment management services to
Kiewit Mutual Fund ("KMF") which currently has approximately one
billion dollars under management. The Manager is an indirect,
wholly-owned subsidiary of Peter Kiewit Sons', Inc., a
construction, mining and telecommunications company.
(b)(ii) Pursuant to an investment management agreement with the
Trust with respect to each Series, the Manager manages the
investment and reinvestment of their assets. The Manager also
provides the Trust with records concerning the Manager's
activities which the Trust is required to maintain and renders
regular reports to the Trust's officers and the Board of
Trustees. The Manager also selects brokers and dealers to effect
securities transactions.
(b)(iii) Under the investment management agreement for each
Series, the monthly fees of the Series are at the following
annual rates of their average monthly net assets: Kiewit Money
Market Series .20%; Kiewit Short-Term Government Series .30%;
Kiewit Intermediate-Term Series .40%; Kiewit Tax-Exempt Series
.40%; Kiewit Equity Series .70% and Kiewit Government Money
Market Series .20%.
(c) Mr. P. Greggory Williams manages the investments of the
Kiewit Short-Term Government Series and co-manages the Kiewit
Equity Series. Mr. Williams is the Chief Investment Officer and
a Vice President of the Manager, Chief Financial Officer and a
Vice President of the Fund and a Chartered Financial Analyst.
From June 1983 to December 1986, he served as Assistant Vice
President-Investments at Mutual of Omaha Fund Management Company.
His duties included managing three investment companies. From
December 1986 to November 1990, Mr. Williams served as Senior
Vice President and Chief Investment Officer of Jefferson National
Life Insurance Company in Indianapolis, Indiana. From June 1991
to August 1994, Mr. Williams was Vice President-Investments and
Treasurer of Shenandoah Life Insurance Company of Roanoke,
Virginia.
Brian J. Mosher manages the Kiewit Intermediate-Term Bond Series
and the Kiewit Tax-Exempt Series, and co-manages the Kiewit
Equity Series. Mr. Mosher is a Vice President of the Manager, a
Vice President of the Fund and a Chartered Financial Analyst.
From April 1984 to March 1989, he was Vice President and Trust
Officer of The Provident Bancorporation of Cincinnati, Ohio.
From March 1989 to December 1994, Mr. Mosher served as Investment
Manager of Meridian Mutual Insurance Company in Indianapolis,
Indiana.
(d) and (e) Rodney Square Management Corporation ("Rodney
Square"), Rodney Square North, 1100 North Market, Wilmington,
Delaware, 19890, serves as the Administrator, Accounting Services
and Transfer Agent for each of the Series.
Administration and Accounting Services Agreements. Under
separate Administration Agreements and Accounting Services
Agreements, Rodney Square serves, respectively, as Administrator
and Accounting Services Agent for the Trust. In these joint
capacities, Rodney Square manages and administers all regular
day-to-day operations of each of the Trust's various Series
subject to the supervision of the Trust's Board of Trustees.
Pursuant to its respective agreements with Rodney Square, the
Trust has agreed to pay Rodney Square, on behalf of each Trust
Series, the Series' proportionate share of a complex-wide annual:
(a) administration services charge of 0.015% of the Trust's
aggregate total assets in excess of $125 million; and (b)
accounting services charge of 0.015% of the Trust's aggregate
total assets in excess of $100 million. All Rodney Square annual
asset-based fees are determined on an average daily total asset
basis, and are subject to prescribed fixed minimums.
Transfer Agency Agreement. Rodney Square serves as Transfer Agent
of the Trust pursuant to a separate Transfer Agency Agreement
with the Trust on behalf of each Series.
(f) The Trust bears all of its own costs and expenses,
including: services of its independent accountants, legal
counsel, brokerage fees, commissions and transfer taxes in
connection with the acquisition and disposition of portfolio
securities, taxes, insurance premiums, costs incidental to
meetings of its shareholders and trustees, the cost of filing its
registration statement under the federal securities law, reports
to shareholders, and transfer and dividend disbursing agency,
administrative services and custodian fees. Expenses allocable
to a particular Series are so allocated, and expenses which are
not allocable to a particular Series are borne by each Series on
the basis of relative net assets.
(g) Not applicable.
Item 5A. Management's Discussion of Series Performance
A response to Item 5A has been omitted pursuant to paragraph 4 of
Instruction F of the General Instructions to Form N-1A.
Item 6. Capital Stock and Other Securities
(a) All six Series issue shares of beneficial interest with a
par value of $.01 per share. The shares of each Series, when
issued and paid for in accordance with this registration
statement, will be fully paid and nonassessable shares, with
equal, non-cumulative voting rights, except as described below,
and no preferences as to conversion, exchange, dividends,
redemptions or any other feature. Shareholders shall have the
right to vote only (i) for removal of Trustees, (ii) with respect
to such additional matters relating to the Trust as may be
required by the applicable provisions of the 1940 Act, including
Section 16(a) thereof, and (iii) on such other matters as the
Trustees may consider necessary or desirable. In addition, the
shareholders of each Series will be asked to vote on any proposal
to change a fundamental investment policy (i.e. a policy that may
be changed only with the approval of shareholders) of that
Series. All shares of the Trust entitled to vote on a matter
shall vote without differentiation between the separate Series on
a one-vote-per-share basis; provided however, if a matter to be
voted on affects only the interests of not all Series, then only
the shareholders of such affected Series shall be entitled to
vote on the matter. If liquidation of the Trust should occur,
shareholders would be entitled to receive on a per class basis
the assets of the particular Series whose shares they own, as
well as a proportionate share of Trust assets not attributable to
any particular class then in existence. Ordinarily, the Trust
does not intend to hold annual meetings of shareholders, except
as required by the 1940 Act or other applicable law. The Trust's
by-laws provide that meetings of shareholders shall be called for
the purpose of voting upon the question of removal of one or more
Trustees upon the written request of the holders of not less than
10% of the outstanding shares.
(b) Peter Kiewit Sons', Inc., a Delaware Corporation with
principal offices at 1000 Kiewit Plaza, Omaha, NE 68131, is the
direct or indirect parent of shareholders of more than 25% of the
voting securities of each Series and therefore may be deemed to
control each Series.
(c) Not applicable.
(d) Not applicable.
(e) Shareholder account inquiries may be made by writing or
calling Rodney Square at 1105 North Market Street, Wilmington, DE
19890 or (800) 2KIEWIT.
(f) It is not expected that any Series will make cash or
property distributions. Rather, each investor can redeem part or
all of its shares in a Series. As explained below in (g), each
investor will be required to report separately on its own U.S.
federal income tax return its distributive share (as determined
in accordance with the governing instruments of the Series) of a
Series' income, gains, losses, deductions and credits. Each
investor will be required to report its distributive share
regardless of whether it has received a corresponding
distribution of cash or property from a Series.
(g) Each Series of the Trust is intended to be taxable as a
partnership for U.S. federal income tax purposes.
The Series are series of a trust organized under Delaware law.
The Series will not be subject to any U.S. federal income tax.
Instead, each investor will be required to report separately on
its own U.S. federal income tax return its distributive share (as
determined in accordance with the governing instruments of the
Series) of a Series' income, gains, losses, deductions and
credits. Each investor will be required to report its
distributive share regardless of whether it has received a
corresponding distribution of cash or property from a Series. An
allocable share of a tax-exempt investor's income will be
"unrelated business taxable income" ("UBTI") only to the extent
that a Series borrows money to acquire property or invests in
assets that produce UBTI or to the extent a tax-exempt investor
borrows money to make an investment in the Series. In addition
to U.S. federal income taxes, investors in the Series may also be
subject to state and local taxes on their distributive share of a
Series' income.
While the Series are not classified as "regulated investment
companies" under Subchapter M of the Code, the Series' assets,
income and distributions will be managed in such a way that an
investor in the Series will be able to satisfy the requirements
of Subchapter M of the Code, assuming that the investor invested
all of its assets in a Series for such Series' entire fiscal
year.
There are certain other tax issues that will be relevant to only
certain of the investors; for instance, investors that are
segregated asset accounts and investors who contribute assets
rather than cash to the Series. It is intended that
contributions of assets will not be taxable provided certain
requirements are met. Such investors are advised to consult
their own tax advisors as to the tax consequences of an
investment in the Series. Also, a Series may be required to
withhold taxes on distributions to foreign investors. Foreign
investors should contact their own tax advisors for more
information with respect to any applicable withholding on
distributions from a Series.
Redemptions of shares in a Series may be taxable. In general, a
redemption of shares is taxable to the extent such cash or
property received by the redeeming investor exceeds such
investor's tax basis in its shares.
It is not expected that any Series will make distributions of
cash or property. Instead, at the close of each fiscal year
investors will be advised of their allocable share of a Series'
income, gains, losses deductions and credits for U.S. federal
income tax purposes.
In the case of the Kiewit Tax-Exempt Series, it is expected that
a sufficient portion of its assets will be invested in municipal
bonds and notes so that any investors in the Series which are
regulated investment companies will qualify to pay "exempt-
interest dividends" to such investor's shareholders assuming
substantially all of such investor's assets are invested in such
Series.
If a Series of the Trust purchases shares in certain foreign
investment entities, called "passive foreign investment
companies" ("PFIC"), the investors in Series may be subject to
U.S. federal income tax and a related interest charge on a
portion of any "excess distribution" or gain from the disposition
of such shares even if such income is distributed to investors in
the Series and whether or not such investors are subject to tax.
Each Series of the Trust may be subject to foreign withholding
taxes on income from certain of their foreign securities.
The Series' taxable year-end will normally be June 30.
Although, as described above, the Series will not be subject to
U.S. federal income tax, they will file appropriate U.S. federal
income tax returns.
(h) Not applicable. The Series of the Trust may act as master
funds in a master-feeder structure.
Item 7. Purchase of Securities Being Offered
(a) The Trust's shares have not been registered under the
Securities Act of 1933, which means that its shares may not be
sold publicly. However, the Trust may sell its shares through
private placements pursuant to available exemptions from
registration under that Act.
Shares of the Trust are sold only to: affiliates of the Manager;
subsidiaries of the parent company of the Manager; certain joint
venture partners of affiliates of the Manager; and other
institutional investors. Shares of the Series are sold at net
asset value without a sales charge. Shares are purchased at the
net asset value next determined after the Trust receives the
order in proper form. All investments are credited to the
shareholder's account in the form of full and fractional shares
of the Series calculated to three decimal places. In the
interest of economy and convenience, certificates for shares will
be issued only upon written request.
The Trust distributes its own shares.
In Kind Purchases
If accepted by the Trust, shares of each Series may be purchased
in exchange for securities which are eligible for acquisition by
such Series as described in this registration statement.
Securities to be exchanged which are accepted by the Trust and
Trust shares to be issued therefore will be valued, as set forth
under "Valuation of Shares" in Item 7(b), at the time of the next
determination of net asset value after such acceptance. All
dividends, interest, subscription, or other rights pertaining to
such securities shall become the property of the Series whose
shares are being acquired and must be delivered to the Trust by
the investor upon receipt from the issuer.
The Trust will not accept securities in exchange for shares of a
Series unless: (1) current market quotations are readily
available for such securities; (2) the investor represents and
agrees that all securities offered to be exchanged are not
subject to any restrictions upon their sale by the Series under
the Securities Act of 1933 or under the laws of the country in
which the principal market for such securities exists, or
otherwise; (3) at the discretion of the Series, the value of any
such security (except U.S. Government Securities) being exchanged
together with other securities of the same issuer owned by the
Series will not exceed 5% of the net assets of the Series
immediately after the transaction; and (4) the Series acquires
the securities for investment and not for resale. In addition,
nearly all of the securities accepted in an exchange must be, at
the time of the exchange, eligible to be included in the Series
whose shares are issued. (See Item 4(a)(i).) Investors
interested in such exchanges should contact the Manager.
(b) Valuation of Shares
The net asset value per share of each Series is calculated by
dividing the total market value of the Series' investments and
other assets, less any liabilities, by the total outstanding
shares of the stock of the Series. On each Business Day of the
Trust, net asset value is determined as of the close of business
of the NYSE, usually 4:00 p.m. Eastern time; except for the
Kiewit Money Market Series and the Kiewit Government Money Market
Series which are determined at 2:00 p.m., Eastern time.
Securities held by the Series which are listed on a securities
exchange and for which market quotations are available are valued
at the last quoted sale price of the day or, if there is no such
reported sale, at the mean between the most recent quoted bid and
asked prices. Price information on listed securities is taken
from the exchange where the security is primarily traded.
Unlisted securities for which market quotations are readily
available are valued at the mean between the most recent bid and
asked prices. The value of other assets and securities for which
no quotations are readily available (including restricted
securities) are determined in good faith at fair value in
accordance with procedures adopted by the Board of Trustees.
Money market instruments with a maturity of more than 60 days are
valued at current market value, as discussed above. Money market
instruments with a maturity of 60 days or less are valued at
their amortized cost, which the Board of Trustees has determined
in good faith constitutes fair value for purposes of complying
with the 1940 Act. This valuation method will continue to be
used until such time as the Trustees determine that it does not
constitute fair value for such purposes.
The net asset value of the shares of each Series, except the
Kiewit Money Market Series and the Kiewit Government Money Market
Series, will fluctuate in relation to its own investment
experience. The Kiewit Money Market Series and the Kiewit
Government Money Market Series will attempt to maintain a stable
net asset value of $1.00 per share.
The offering price of shares of each Series is the net asset
value next determined after the purchase order is received and
accepted; no sales charge or reimbursement fee is imposed.
(c) Not applicable.
(d) The minimum for an initial investment is $1,000,000. There
is no minimum for subsequent investments.
(e) Not applicable.
(f) Not applicable.
Item 8. Redemption or Repurchase
(a) As stated above in response to Item 7(a), "Purchase of
Securities Being Offered," the Trust's shares have not been
registered under the Securities Act of 1933, which means that its
shares are restricted securities which may not be sold unless
registered or pursuant to an available exemption from that Act.
Redemptions are processed on any day on which the specific Series
is open for business and are effected at the Series' net asset
value next determined after the Series receives a redemption
request in good form.
Redemption payments in cash will ordinarily be made within seven
days after receipt of the redemption request in good form.
However, the right of redemption may be suspended or the date of
payment postponed in accordance with the 1940 Act. The amount
received upon redemption may be more or less than the amount paid
for the shares depending upon the fluctuations in the market
value of the assets owned by the Series.
If the Board of Trustees determines that it would be detrimental
to the best interests of the remaining shareholders of any Series
to make a particular payment wholly or partly in cash, a Series
may pay the redemption price in whole or in part by a
distribution of portfolio securities from the Series of the
shares being redeemed in lieu of cash in accordance with Rule
18f-1 under the Investment Company Act of 1940. Investors may
incur brokerage charges and other transaction costs selling
securities that were received in payment of redemptions.
For additional information about redemption of Trust shares, see
Items 19(a) and (b) in Part B.
(b) Not applicable.
(c) Not applicable.
(d) Although the redemption payments will ordinarily be made
within seven days after receipt, payment to investors redeeming
shares which were purchased by check will not be made until the
Trust can verify that the payments for the purchase have been, or
will be, collected, which may take up to fifteen days or more.
Investors may avoid this delay by submitting a certified check
along with the purchase order.
Item 9. Pending Legal Proceedings
None.
Part B:
Item 10. Cover Page
Not applicable.
Item 11. Table of Contents
Not applicable.
Item 12. General Information and History
Not applicable.
Item 13. Investment Objectives and Policies
(a)-(c) The information provided in response to these items is
in addition to the information provided in response to Item
4(a)(ii) of Part A.
In addition to the policies stated in response to Item 4(a)(ii)
of Part A, each of the Series has adopted certain limitations
which may not be changed with respect to any Series without the
approval of a majority of the outstanding voting securities of
the Series. A "majority" is defined as the lesser of: (1) at
least 67% of the voting securities of the Series (to be affected
by the proposed change) present at a meeting if the holders of
more than 50% of the outstanding voting securities of the Series
are present or represented by proxy, or (2) more than 50% of the
outstanding voting securities of such Series.
The Series will not: (1) as to 75% of the total assets of a
Series, invest in the securities of any issuer (except
obligations of the U.S. Government and its instrumentalities) if,
as a result more than 5% of the Series' total assets, at market,
would be invested in the securities of such issuer, provided that
this restriction applies to 100% of the total assets of the
Kiewit Money Market Series; (2) borrow, except that a Series may
borrow from banks for temporary or emergency purposes or to pay
redemptions and then, in no event, in excess of 33% of its net
assets and a Series may pledge not more than 33% of such assets
to secure such loans; (3) pledge, mortgage, or hypothecate any of
its assets to an extent greater than 10% of its total assets at
fair market value, except as described in (2) above; (4) invest
more than 15% of the value of the Series' net assets in illiquid
securities which include certain restricted securities,
repurchase agreements with maturities of greater than seven days,
and other illiquid investments; (5) invest its assets in
securities of any investment company in excess of the limits set
forth in the Investment Company Act of 1940 (the "1940 Act") and
rules thereunder, except in connection with a merger, acquisition
of assets, consolidation or reorganization; (6) acquire any
securities of companies within one industry if, as a result of
such acquisition, more than 25% of the value of the Series' total
assets would be invested in securities of companies within such
industry; (7) engage in the business of underwriting securities
issued by others, except that, in connection with the disposition
of a security, a Series may be deemed to be an "underwriter" as
that term is defined in the Securities Act of 1933 (the "1933
Act"); (8) purchase or sell commodities except that each Series
may purchase or sell financial futures contracts and options
thereon; (9) invest in real estate, including limited partnership
interests therein, although they may purchase and sell securities
which deal in real estate and securities which are secured by
interests in real estate; (10) purchase securities on margin or
sell securities short, except that a Series may satisfy margin
requirements with respect to futures transactions; and (11) make
loans, except that this restriction shall not prohibit (a) the
purchase of obligations customarily purchased by institutional
investors, (b) the lending of Series securities or (c) entry into
repurchase agreements.
For the purposes of (4) above, each Series may invest in
commercial paper that is exempt from the registration
requirements of the 1933 Act subject to the requirements
regarding credit ratings stated in Item 4 of Part A. Further,
pursuant to Rule 144A under the 1933 Act, the Series may purchase
certain unregistered (i.e. restricted) securities upon a
determination that a liquid institutional market exists for the
securities. If it is decided that a liquid market does exist,
the securities will not be subject to the 15% limitation on
holdings of illiquid securities stated in (4) above. While
maintaining oversight, the Board of Trustees has delegated the
day-to-day function of making liquidity determinations to Kiewit
Investment Management Corp. (the "Manager"). For Rule 144A
securities to be considered liquid, there must be at least one
dealer making a market in such securities. After purchase, the
Board of Trustees and the Manager will continue to monitor the
liquidity of Rule 144A securities. There is no limit on the
Series' investment in Rule 144A securities that are determined to
be liquid.
For the purposes of (6) above, (i) utility companies will be
divided according to their services; e.g., gas, gas transmission,
electric and gas, electric, water and telephone will each be
considered a separate industry; and (ii) the Kiewit Money Market
Series may invest more than 25% of the value of its total assets
in obligations of U.S. banks, such as certificates of deposits,
time deposits and bankers' acceptances. The banks must have
total assets exceeding one billion dollars.
Non-Fundamental Limitations - All Series
The following policies are non-fundamental and may be changed by
the Board of Trustees, without shareholder approval:
The Series will not: (1) invest for the purpose of exercising
control over management of any company; or (2) acquire more than
10% of the voting securities of any issuer.
Non-Fundamental Policies - Kiewit Bond Series
The following policies are non-fundamental and may be changed by
the Board of Trustees, without shareholder approval:
The Kiewit Short-Term Government, Kiewit Tax-Exempt and Kiewit
Intermediate-Term Bond Series (each referred to herein as a
"Kiewit Bond Series") may invest in obligations that permit
repayment of the principal amount of the obligation prior to
maturity. Variable and floating rate obligations are relatively
long-term instruments that often carry demand features permitting
the holder to demand payment of principal at any time or at
specified intervals prior to maturity. Standby commitments,
which are similar to a put, give a Kiewit Bond Series the option
to obligate a broker, dealer or bank to repurchase a security
held by a Kiewit Bond Series at a specified price. Tender option
bonds are relatively long-term bonds that are coupled with the
agreement of a third party (such as a broker, dealer or bank) to
grant the holders of such securities the option to tender the
securities to the institution at periodic intervals. A Kiewit
Bond Series will purchase these types of instruments primarily
for the purpose of increasing the liquidity of its portfolio.
New issues of bonds are often issued on a "when-issued" basis,
which means that actual payment for the delivery of the
securities generally takes place 15 to 45 days after the purchase
date. During this period, a Kiewit Bond Series bears the risk
that interest rates on debt securities at the time of delivery
may be higher or lower than those contracted for on the when-
issued securities. To alleviate this risk, each Kiewit Bond
Series does not intend to invest more than 5% of its assets in
when-issued securities.
A Kiewit Bond Series also may invest up to 5% of its assets in
zero coupon bonds or "strips." Zero coupon bonds do not make
regular interest payments, rather they are sold at a discount
from face value. Principal and accretive discount (representing
interest accrued but not paid) are paid at maturity. Strips are
debt securities that are stripped of their interest after the
securities are issued, but are otherwise comparable to zero
coupon bonds. The market values of zero coupon bonds and strips
generally fluctuate in response to changes in interest rates to a
greater degree than interest paying securities of comparable term
and quality. The strips in which a Kiewit Bond Series may invest
may or may not be a part of the U.S. Treasury Separately Traded
Registered Interest and Principal Securities program. Each
Kiewit Bond Series may also purchase inverse floaters, which are
instruments whose interest bears an inverse relationship to the
interest rate on another security.
Generally, a Kiewit Bond Series' average maturity will tend to be
shorter when the Manager expects interest rates to rise and
longer when it expects interest rates to decline.
(d) The Trust is a new registrant, which as the "master" fund in
a "master-feeder" structure, expects to receive substantially all
the investment assets of the Portfolios of Kiewit Mutual Fund and
expects to continue the current investment policies and personnel
of Kiewit Investment Management Corp., the investment adviser to
Kiewit Mutual Fund. Therefore, the turnover ratios of Kiewit
Mutual Fund during its first two fiscal years are relevant.
The turnover rates for the Kiewit Short-Term Government Portfolio
from inception (July 29, 1994 through June 30, 1995) and for the
second fiscal year (ending June 30, 1996) were 122.58% and
57.52%, respectively. The turnover rates for the Kiewit
Intermediate-Term Bond Portfolio from inception (July 25, 1994
through June 30, 1995) and for the second fiscal year (ending
June 30, 1996) were 128.95% and 86.06%, respectively. The
turnover rates for the Kiewit Tax-Exempt Portfolio from inception
(July 25, 1994 through June 30, 1995) and for the second fiscal
year (ending June 30, 1996) were 104.34% and 100.61%,
respectively. The primary reason for the larger turnover in the
first fiscal year was a result of portfolio changes after Kiewit
Investment Management Corp. assumed full investment advisory
duties from a sub-adviser. The turnover rates for the Kiewit
Equity Portfolio from inception (January 5, 1995 through June 30,
1995) and for the second fiscal year (ending June 30, 1996) were
0% and 16.95%, respectively. The annual turnover rates of each
of the Kiewit Short-Term Government, Kiewit Intermediate-Term
Bond, and Kiewit Tax-Exempt Series is not expected to exceed 100%
The annual turnover rate of the Kiewit Equity Series is not
expected to exceed 75%. Generally, securities held by the Kiewit
Equity Series will not be sold to realize short-term profits, but
when circumstances warrant, they may be sold without regard to
the length of time held. Generally, securities held by Kiewit
Equity Series will be purchased with the expectation that they
will be held for longer than one year.
Item 14. Management of the Registrant
(a) and (b) Trustees and Officers
The names, addresses and ages of the trustees and officers of the
Trust and a brief statement of their present positions and
principal occupations during the past five years is set forth
below. Trustees who are deemed to be "interested persons" as
defined in the 1940 Act are indicated by an asterisk (*).
Richard R. Jaros*
1000 Kiewit Plaza
Omaha, NE 68131-3374
Mr. Jaros, age 44, is a Trustee of the Trust and Kiewit Mutual
Fund, a Director of the Manager, Executive Vice President of
Peter Kiewit Sons', Inc. ("PKS"), President of Kiewit Diversified
Group Inc. ("KDG"), and a Director of PKS, CalEnergy
Company, Inc., C-TEC Corporation and MFS Communications Company,
Inc. Mr. Jaros also was Chairman (1993-1994) and President and
COO (1992-1993) of CalEnergy Company, Inc. and Vice
President of KDG (1989-1990).
Ann C. McCulloch*
1000 Kiewit Plaza
Omaha, NE 68131-3374
Ms. McCulloch, age 38, is Chairman of the Board of Trustees and
President of the Trust and Kiewit Mutual Fund, President of the
Manager and Treasurer of PKS. From 1989 to 1993, Ms. McCulloch
was Treasurer and Vice President of Central Maine Power in
Augusta, ME.
George Lee Butler*
1000 Kiewit Plaza
Omaha, NE 68131-3374
Mr. Butler, age 57, is a Trustee of the Trust and Kiewit Mutual
Fund and President of Kiewit Energy Company. From 1991 to March
1994, Mr. Butler was Commander-in-Chief of the U.S. Strategic
Command and from 1989 to 1994 was Director, Strategic Plans and
Policy, for the U.S. Joint Chiefs of Staff.
Lawrence B. Thomas
7813 Pierce Circle
Omaha, NE 68124
Mr. Thomas, age 60, is a Trustee of the Trust and Kiewit Mutual
Fund and Senior Vice-President. He retired in November 1996,
after having served as Corporate Risk Officer and Secretary of
ConAgra, Inc. (a food company). Mr. Thomas previously served as
principal financial officer and Treasurer of ConAgra, Inc.
John J. Quindlen
313 Southwinds
1250 West Southwinds Boulevard
Vero Beach, FL 32963
Mr. Quindlen, age 64, is a Trustee of the Trust, Kiewit Mutual
Fund, each investment company in the Rodney Square Funds and
Kalmar Pooled Trust, a registered investment company. He retired
in November 1993, after having served as the Senior Vice
President - Financial and Chief Financial Officer of E.I. du Pont
de Nemours and Company, Inc. (diversified chemicals) from 1984 to
1993. He is a director of St. Joe Paper Co.
P. Greggory Williams
1000 Kiewit Plaza
Omaha, NE 68131-3374
Mr. Williams, age 42, is Chief Financial Officer, Vice President
and Treasurer of the Trust and Kiewit Mutual Fund and Chief
Investment Officer and a Vice President of the Manager. From
June 1991 to August 1994, Mr. Williams was Vice President-
Investments and Treasurer of Shenandoah Life Insurance Company in
Roanoke, Virginia. From December 1986 to November 1990, he was
Senior Vice President and Chief Investment Officer of Jefferson
National Life Insurance Company in Indianapolis, Indiana.
Kenneth D. Gaskins, Esquire
1000 Kiewit Plaza
Omaha, NE 68131-3344
Mr. Gaskins, age 50, is Secretary of the Trust and Kiewit Mutual
Fund, Vice President and Secretary of the Manager and Corporate
Counsel of PKS.
Brian J. Mosher
1000 Kiewit Plaza
Omaha, NE 68131-3344
Mr. Mosher, age 39, is a Vice President of the Trust and Kiewit
Mutual Fund and a Vice President of the Manager. From March 1989
to December 1994, Mr. Mosher served as Investment Manager of
Meridian Mutual Insurance Company in Indianapolis, Indiana.
(c) The fees and expenses of the Trustees who are not
"interested persons" of the Fund ("Independent Trustees"), as
defined in the 1940 Act, are paid by the Trust. The following
table shows the fees paid to the Independent Trustees by the
Kiewit Funds for the fiscal year ended June 30, 1996.
Independent Trustee Total Compensation Total Compensation
From the Trust from Fund Complex
John J. Quindlen 0 $12,500
Lawrence B. Thomas 0 $12,500
Item 15. Control Persons and Principal Holders of Securities
(a) See Item 6(b).
(b) As of February 20, 1997, Kiewit Investment Management Corp.
owned beneficially at least 5% of the outstanding shares of
the Series.
(c) As of February 20, 1997, the trustees and officers of the
Trust as a group owned less than one percent of each Series
of Registrant's shares of beneficial interest.
Item 16. Investment Advisory and Other Services
(a) (i) All of the capital stock in the Manager is owned
indirectly by Peter Kiewit Sons, Inc. ("PKS"). PKS is
a privately owned construction, mining, and
telecommunications company with headquarters in Omaha,
Nebraska. PKS was incorporated in 1941 to continue a
construction business started in Omaha in 1884.
(ii) The affiliations of the Trustees and officers are shown
at Item 14(b) above.
(iii) Advisory fees are explained at Item 5(b)(iii) of Part
A.
(b) The information provided in response to this item is in
addition to the information provided in response to Item 5(b) of
Part A.
Each investment management agreement is in effect for a period of
two years. Thereafter, each agreement may continue in effect for
successive annual periods, provided such continuance is
specifically approved at least annually by a vote of the Trust's
Board of Trustees or, by a vote of the holders of a majority of
the Series' outstanding voting securities, and in either event by
a majority of the Trustees who are not parties to the agreement
or interested persons of any such party (other than as Trustees
of the Trust), cast in person at a meeting called for that
purpose. An investment management agreement may be terminated
without penalty at any time by the Series or by the Manager on 60
days written notice and will automatically terminate in the event
of its assignment as defined in the 1940 Act.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
(g) Not applicable.
(h) Wilmington Trust Company, Rodney Square North, 1100 North
Market Street, Wilmington, DE 19890-001, a Delaware-chartered
banking institution serves as Custodian of the Trust.
Price Waterhouse LLP, Thirty South 17th Street, Philadelphia,
Pennsylvania 19103, is the Trust's independent accountant.
(i) Not applicable.
Item 17. Brokerage Allocation
(a) Portfolio transactions will be placed with a view to
receiving the best price and execution.
(b) Not applicable.
(c) The Series will seek to acquire and dispose of securities in
a manner which would cause as little fluctuation in the market
prices of stocks being purchased or sold as possible in light of
the size of the transactions being effected, and brokers will be
selected with this goal in view. The Manager monitors the
performance of brokers which effect transactions for each Series
to determine the effect that the Series' trading has on the
market prices of the securities in which they invest.
Transactions may be placed with brokers who provide the Manager
with investment research, such as reports concerning individual
issuers, industries and general economic and financial trends and
other research services. Each Series' Advisory Agreement permits
the adviser knowingly to pay commissions on such transactions
which are greater than another broker might charge if the
Manager, in good faith, determines that the commissions paid are
reasonable in relation to the research or brokerage services
provided by the broker or dealer when viewed in terms of either a
particular transaction or the Manager's overall responsibilities
to the Trust.
(d) Not applicable.
(e) Not applicable.
Item 18. Capital Stock and Other Securities
(a) The information provided in response to this item is in
addition to the information provided in response to Item 6(a) in
Part A.
The Trust does not intend to hold annual meetings; it may,
however, hold a meeting for such purposes as changing fundamental
investment limitations, approving a new investment management
agreement or any other matters which are required to be acted on
by shareholders under the 1940 Act. Shareholders may receive
assistance in communicating with other shareholders in connection
with the election or removal of Trustees similar to the
provisions contained in Section 16(c) of the 1940 Act.
(b) Not applicable.
Item 19. Purchase, Redemption and Pricing of
Securities Being Offered
The information provided in response to this item is in addition
to the information provided in response to Items 7 and 8 in Part
A.
(a) and (b) The Trust will accept purchase and redemption
orders with respect to a Series on each day that the Series is
open for business. Each Series, except the Kiewit Money Market
Series and the Kiewit Government Money Market Series, is open
each day that the NYSE is open. The NYSE is scheduled to be open
Monday through Friday throughout the year except for New Year's
Day, Presidents' Day, Good Friday, Memorial Day, Independence
Day, Labor Day, Thanksgiving and Christmas Day. The Kiewit Money
Market Series and the Kiewit Government Money Market Series are
open each day that member banks of the Federal Reserve Board are
open. Orders for redemptions and purchases will not be processed
if the Trust is closed.
The Trust reserves the right, in its sole discretion, to suspend
the offering of shares of any or all Series or reject purchase
orders when, in the judgement of management, such suspension or
rejection is in the best interest of the Trust or a Series.
Securities accepted in exchange for shares of a Series will be
acquired for investment purposes and will be considered for sale
under the same circumstances as other securities in the Series.
The Trust may suspend redemption privileges or postpone the date
of payment: (1) during any period when the NYSE is closed, or
trading on the Exchange is restricted as determined by the
Securities and Exchange Commission (the "SEC"), (2) during any
period when an emergency exists as defined by the rules of the
Commission as a result of which it is not reasonably practicable
for the Trust to dispose of securities owned by it, or fairly to
determine the value of its assets and (3) for such other periods
as the Commission may permit.
The valuation of the Kiewit Money Market and Kiewit Government
Money Market Series' portfolio securities (including any
securities held in a separate account maintained for when-issued
securities) is based upon their amortized costs which does not
take into account unrealized capital gains or losses. This
involves valuing an instrument at its cost and thereafter
assuming a constant amortization to maturity of any discount or
premium, regardless of the impact of fluctuating interest rates
on the market value of the instrument. While this method
provides certainty in valuation, it may result in periods during
which value, as determined by amortized cost, is higher or lower
than the price the Series would receive if it sold the
instrument. During periods of declining interest rates, the
daily yield on shares of the Series computed as described above
may tend to be higher than a like computation made by a fund with
identical investments utilizing a method of valuation based upon
market prices and estimates of market prices for all of its
portfolio instruments. Thus, if the use of amortized cost by the
Series resulted in a lower aggregate portfolio value on a
particular day, a prospective investor in the Series would be
able to obtain a somewhat higher yield than would result from
investment in a fund utilizing solely market values, and existing
investors in the Series would receive less investment income.
The converse would apply in a period of rising interest rates.
The Kiewit Money Market and Kiewit Government Money Market
Series' use of amortized cost which facilitates the maintenance
of the Series's per share net asset value of $1.00 is permitted
by a rule adopted by the SEC, pursuant to which the Series must
adhere to certain conditions.
The Kiewit Money Market and Kiewit Government Money Market Series
each must maintain a dollar-weighted average portfolio maturity
of 90 days or less, only purchase instruments having remaining
maturities of 397 calendar days or less, and invest only in those
U.S. dollar-denominated instruments that the Manager has
determined, pursuant to guidelines adopted by the Board of
Trustees, present minimal credit risks and which are, as required
by the federal securities laws (i) rated in one of the two
highest rating categories as determined by nationally recognized
statistical rating agencies, (ii) instruments deemed comparable
in quality to such rated instruments, or (iii) instruments, the
issuers of which, with respect to an outstanding issue of short-
term debt that is comparable in priority and protection, have
received a rating within the two highest categories of nationally
recognized statistical rating agencies. Securities subject to
floating or variable interest rates with demand features in
compliance with applicable rules of the SEC may have stated
maturities in excess of 397 days. The Trustees have established
procedures designed to stabilize, to the extent reasonably
possible, the Series' price per share as computed for the purpose
of sales and redemptions at $1.00. Such procedures will include
review of the portfolio holdings by the Trustees, at such
intervals as they may deem appropriate, to determine whether the
Series' net asset value calculated by using available market
quotations deviates from $1.00 per share based on amortized cost.
The extent of any deviation will be examined by the Trustees.
If such deviation exceeds 1/2 of 1%, the Trustees will promptly
consider what action, if any, will be initiated. In the event
the Trustees determine that a deviation exists which may result
in material dilution or other unfair results to investors or
existing shareholders, they will take such corrective action as
they regard as necessary and appropriate, which may include the
sale of portfolio instruments prior to maturity to realize
capital gains or loses or to shorten average portfolio maturity,
withholding dividends, redemptions of shares in kind, or
establishing a net asset value per share by using available
market quotations.
(c) The Trust has filed a notice of election pursuant to Rule
18f-1 under the 1940 Act. (See Item 8(a) of Part A.)
Item 20. Tax Status
See Item 6 in Part A.
Item 21. Underwriters
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
Item 22. Calculation of Performance Data
The performance of a Series may be quoted in terms of its yield
and its total return in advertising and other promotional
materials ("performance advertisements"). Performance data
quoted represents past performance and is not intended to
indicate future performance. The investment return of an
investment in the Series and the principal value of an investment
in any Series except the Money Market Series and the Government
Money Market Series will fluctuate so that an investor's shares,
when redeemed, may be worth more or less than the original cost.
Performance of the Series will vary based on changes in market
conditions and the level of each Series' expenses. These
performance figures are calculated in the following manner:
A. Yield is the net annualized yield for a specified 7 calendar
days calculated at simple interest rates. From time to time, the
Money Market Series and the Government Money Market Series may
advertise their yields. Yield is calculated by determining the
net change, exclusive of capital changes, in the value of a
hypothetical pre-existing account having a balance of one share
at the beginning of the period, subtracting a hypothetical charge
reflecting deductions from shareholder accounts, and dividing the
difference by the value of the account at the beginning of the
base period to obtain the base period return. The yield is
annualized by multiplying the base period return by 365/7. The
yield figure is stated to the nearest hundredth of one percent.
B. Effective Yield is the net annualized yield for a specified
7 calendar days assuming reinvestment of income or compounding.
From time to time the Money Market Series and the Government
Money Market Series may advertise their effective yields.
Effective yield is calculated by the same method as yield except
the yield figure is compounded by adding 1, raising the sum to a
power equal to 365 divided by 7, and subtracting 1 from the
result, according to the following formula:
Effective Yield = [(Base Period Return + 1) 365/7] - 1.
C. Tax-Equivalent Yield is the rate an investor would have to
earn from a fully taxable investment after taxes to equal a
Series' tax-exempt yield. From time to time, the Tax-Exempt
Series may advertise its tax-equivalent yield. Tax-equivalent
yield is computed by: (i) dividing that portion of a Series'
yield which is tax-exempt by one minus a stated income tax rate;
and (ii) adding the product of that portion, if any, of the
Series' yield that is not tax-exempt. For purposes of this
formula, tax-exempt yield is a yield which is exempt from federal
income tax.
The following table, which is based upon federal income tax rates
in effect on the date of this Statement of Additional
Information, illustrates the yields that would have to be
achieved on taxable investments to produce a range of
hypothetical tax-equivalent yields:
Tax-Equivalent Yield Table
Federal Marginal
Income Tax Bracket
Tax-Equivalent Yields Based on Tax-Exempt Yields of:
4% 5% 6% 7% 8% 9% 10% 11%
28% 5.6 6.9 8.3 9.7 11.1 12.5 13.9 15.3
31% 5.8 7.2 8.7 10.1 11.6 13.0 14.5 15.9
36% 6.3 7.8 9.4 10.9 12.5 14.1 15.6 17.2
39.6% 6.6 8.3 9.9 11.6 13.2 14.9 16.6 18.2
D. Yield of the Short-Term Government Series, Intermediate-Term
Bond Series, and the Tax-Exempt Series is calculated by dividing
the Series' investment income for a 30-day period, net of
expenses, by the average number of shares entitled to receive
dividends during that period according to the following formula:
YIELD = 2[((a-b)/cd + 1)6-1]
Where:
a = distributions and interest earned during the period;
b = expenses accrued for the period (net of reimbursements);
c = the average daily number of shares outstanding during the
period that were entitled to receive dividends; and
d = the maximum offering price per share on the last day of the
period.
The result is expressed as an annualized percentage (assuming
semiannual compounding) of the maximum offering price per share
at the end of the period.
Except as noted below, in determining interest earned during the
period (variable "a" in the above formula), the interest earned
on each debt instrument held by a Series during the period is
calculated by: (i) computing the instrument's yield to maturity,
based on the value of the instrument (including actual accrued
interest) as of the last business day of the period or, if the
instrument was purchased during the period, the purchase price
plus accrued interest; (ii) dividing the yield to maturity by
360; and (iii) multiplying the resulting quotient by the value of
the instrument (including actual accrued interest). Once
interest earned is calculated in this fashion for each debt
instrument held by the Series, interest earned during the period
is then determined by totaling the interest earned on all debt
instruments held by the Series.
For purposes of these calculations, the maturity of a debt
instrument with one or more call provisions is assumed to be the
next date on which the instrument reasonably can be expected to
be called or, if none, the maturity date. In general, interest
income is reduced with respect to debt instruments trading at a
premium over their par value by subtracting a portion of the
premium from income on a daily basis, and increased with respect
to debt instruments trading at a discount by adding a portion of
the discount to daily income.
Since yield accounting methods differ from the accounting methods
used to calculate net investment income for other purposes, a
Series' yield may not equal the income distributions actually
paid to investors or the net investment income reported with
respect to the Series in the Trust's financial statements.
Yield information may be useful in reviewing a Series'
performance and in providing a basis for comparison with other
investment alternatives. Nevertheless, the Series' yields
fluctuate, unlike investments that pay a fixed interest rate over
a stated period of time. Investors should recognize that in
periods of declining interest rates, the Series' yields will tend
to be somewhat higher than prevailing market rates, and in
periods of rising interest rates, the Series' yields will tend to
be somewhat lower. Also, when interest rates are falling, the
inflow of net new money to the Series from the continuous sale of
their shares will likely be invested in instruments producing
lower yields than the balance of the Series' holdings, thereby
reducing the current yields of the Series. In periods of rising
interest rates, the opposite can be expected to occur.
E. Average Annual Total Return is the average annual compound
rate of return for the periods of one year, five years, ten years
and the life of a Series, where quotations reflect changes in the
price of a Series' shares, if any, and assume that all income and
capital gains distributions, if any, during the respective
periods were reinvested in Series shares. Each Series may
advertise its average annual total return from time to time.
Average annual total return is calculated by finding the average
annual compound rates of return of a hypothetical investment over
such periods, according to the following formula (average annual
total return is then expressed as a percentage):
T=(ERV/P)1/n - 1
Where: P = a hypothetical initial investment
of $1,000
T = average annual total return
n = number of years
ERV = ending redeemable value: ERV is
the value, at the end of the
applicable period, of a
hypothetical $1,000 investment made
at the beginning of the applicable
period.
F. Cumulative Total Return is the cumulative rate of return on
a hypothetical initial investment of $1,000 for a specified
period. Cumulative total return quotations reflect the change in
the price of a Series shares, if any, and assume that all income
and capital gains distributions, if any, during the period were
reinvested in Series shares. Cumulative total return is
calculated by finding the cumulative rates of return of a
hypothetical investment over such periods, according to the
following formula (cumulative total return is then expressed as a
percentage):
C = (ERV/P) - 1
Where: C = Cumulative Total Return
P = a hypothetical initial investment
of $1,000
ERV = ending redeemable value: ERV is
the value, at the end of the
applicable period, of a
hypothetical $1,000 investment made
at the beginning of the applicable
period.
Item 23. Financial Statements
Not applicable.
KIEWIT INSTITUTIONAL Series
FORM N-1A
PART C: OTHER INFORMATION
Item 24. Financial Statements and Exhibits.
(a) Financial Statements filed in Part B - Not
applicable
(b) Exhibits:
The following exhibits are attached hereto, except
as otherwise noted:
(1) (i) Agreement and Declaration of Trust
(ii) Certificate of Trust
(2) By-Laws
(3) None
(4) Not applicable
(5) (i) Investment Management Agreement re
Kiewit Money Market Series
(ii) Investment Management Agreement re
Kiewit Short-Term Government Series
(iii) Investment Management Agreement re
Kiewit Intermediate-Term Bond Series
(iv) Investment Management Agreement re
Kiewit Tax-Exempt Series
(v) Investment Management Agreement re
Kiewit Equity Series
(vi) Investment Management Agreement re
Kiewit Government Money Market Series
(6) None
(7) None
(8) Custody Agreement with Wilmington Trust
Company
(9) (i) Form of Transfer Agency Agreement with
Rodney Square Management Corporation
(ii) Form of Accounting Services Agreement
with Rodney Square Management
Corporation
(iii) Form of Administration Agreement with
Rodney Square Management Corporation
(10) Not applicable
(11) Not applicable
(12) Not applicable
(13) Subscription Agreement
(14) Not applicable
(15) Not applicable
(16) Not applicable
(17) Not applicable
(18) Not applicable
Item 25. Persons Controlled by or under Common Control with
Registrant.
None.
Item 26. Number of Holders of Securities.
Number of Record Holders
Title of Class as of February 20, 1997
Shares of Beneficial Interest,
Par Value $0.01
Kiewit Money Market Series 1
Kiewit Short-Term Government Series 1
Kiewit Intermediate-Term
Bond Series 1
Kiewit Tax-Exempt Series 1
Kiewit Equity Series 1
Kiewit Government Money Market Series 1
Item 27. Indemnification.
Reference is made to Article VII of the Registrant's Agreement
and Declaration of Trust (Exhibit 24(b)(1)(i)) and to Article X
of the Registrant's By-Laws (Exhibit 24(b)(2)), which are
incorporated herein by reference. Pursuant to Rule 484 under the
Securities Act of 1933, as amended, the Registrant furnishes the
following undertaking:
"Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to trustees, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a trustee, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such trustee, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue."
Item 28. Business and Other Connections of Investment
Adviser.
Kiewit Investment Management Corp. (the "Manager") is a Delaware
corporation organized in 1994. Under Investment Management
Agreements with respect to each Series, dated February 19, 1997,
the Manager, subject to the supervision of the Board of Trustees,
provides investment management services to each Series. Kiewit
Diversified Holdings Inc. ("KDH") owns 60% and Kiewit
Construction Company ("KCC") owns 40% of the stock of the
Manager. Both KDH and KCC are 100% owned indirectly by Peter
Kiewit Sons', Inc.
The business, profession, vocation or employment of a substantial
nature in which each director and officer of the Manager and
Rodney Square is or has been, during the past two fiscal years,
engaged for his own account in the capacity of director, officer,
employee, partner or trustee is set forth below.
Kiewit Investment Management Corp.
Richard R. Jaros is a Director of the Manager and a Trustee of
the Trust and Kiewit Mutual Fund. Mr. Jaros is also Executive
Vice President and a Director of Peter Kiewit Sons', Inc. ("PKS")
and President of Kiewit Diversified Group Inc.
Walter Scott, Jr. is a Director of the Manager. Mr. Scott is
also Chairman and President of PKS.
Kenneth E. Stinson is a Director of the Manager. Mr. Stinson is
also Executive Vice President of PKS and Chairman and President
of Kiewit Construction Group Inc.
Ann C. McCulloch is President of the Manager. Ms. McCulloch is
also President and the Chairman of the Trust and Kiewit Mutual
Fund and Vice President and Treasurer of PKS.
P. Greggory Williams is Vice President and Chief Investment
Officer of the Manager.
Kenneth Gaskins, Esquire is a Vice President and Secretary of the
Manager. Mr. Gaskins is also Corporate Counsel of PKS.
Brian J. Mosher is a Vice President of the Manager. From March
1989 to December 1994, Mr. Mosher served as Investment Manager of
Meridian Mutual Insurance Company in Indianapolis, Indiana.
Item 29. Principal Underwriters
Not applicable
Item 30. Locations of Accounts and Records.
All accounts and records are maintained by the Registrant, or on
its behalf by the Trust's administrator, transfer agent, dividend
paying agent and accounting services agent, Rodney Square
Management Corporation, at Rodney Square North, 1100 North Market
Street, Wilmington, DE 19890.
Item 31. Management Services.
There are no management-related service contracts not discussed
in Part A or Part B.
Item 32. Undertaking.
The Registrant hereby undertakes to promptly call a meeting of
shareholders for the purpose of voting upon the question of
removal of any trustee or trustees when requested in writing to
do so by the record holders of not less than 10 per centum of the
Registrant's outstanding shares and to assist its shareholders in
accordance with the requirements of Section 16(c) of the
Investment Company Act of 1940 relating to shareholder
communications.
SIGNATURE
Pursuant to the requirements of the Investment Company
Act of 1940, the Registrant has duly caused this amendment to the
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Omaha, the
State of Nebraska, on the 27th day of February, 1997.
KIEWIT INVESTMENT TRUST
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
Exhibit No. 24(b)(1)(i)
AGREEMENT AND DECLARATION OF TRUST
of
KIEWIT INVESTMENT TRUST
a Delaware Business Trust
TABLE OF CONTENTS
Page
ARTICLE I 1
Name and Definitions 1
Section 1. Name 1
Section 2. Definitions 1
(a) Trust 1
(b) Trust Property 1
(c) Trustees 1
(d) Shares 2
(e) Holder 2
(f) Person 2
(g) 1940 Act 2
(h) Commission and Principal
Underwriter 2
(i) Declaration of Trust 2
(j) By-Laws 2
(k) Interested Person 2
(l) Investment Manager 2
(m) Series 2
ARTICLE II 3
Purpose of Trust 3
ARTICLE III 3
Shares 3
Section 1. Division of Beneficial Interest 3
Section 2. Ownership of Shares 4
Section 3. Investments in the Trust 4
Section 4. Status of Shares and Limitation of Personal Liability 4
Section 5. Power of Board of Trustees to Change
Provisions Relating to Shares 4
Section 6. Establishment and Designation of
Shares 5
(a) Assets Held with Respect to a Particular
Series 5
(b) Liabilities Held with Respect to a
Particular Series 6
(c) Dividends, Distributions, Redemptions
and Repurchases 6
(d) Voting 7
(e) Equality 7
(f) Fractions 7
(g) Exchange Privilege 7
(h) Combination of Series 7
(i) Elimination of Series 7
(j) Transferability 7
(k) Termination of a Series 7
(l) Series Established as a Partnership 8
Page
ARTICLE IV 8
The Board of Trustees 8
Section 1. Number, Election and Tenure 8
Section 2. Effect of Death, Resignation, etc. of a
Trustee 9
Section 3. Powers 9
Section 4. Payment of Expenses by the Trust 12
Section 5. Ownership of Assets of the Trust 13
Section 6. Service Contracts 13
ARTICLE V 14
Holders' Voting Powers and Meetings 14
Section 1. Voting Powers 14
Section 2. Voting Power and Meetings 15
Section 3. Quorum and Required Vote 15
Section 4. Action by Written Consent 15
Section 5. Record Dates 15
ARTICLE VI 16
Net Asset Value, Distributions, and Redemptions 16
Section 1. Determination of Net Asset Value, Net
Income, and Distributions 16
Section 2. Redemptions and Repurchases 16
Section 3. Redemptions at the Option of the Trust 17
Section 4. Transfer of Shares 17
ARTICLE VII 17
Compensation and Limitation of Liability 17
Section 1. Compensation of Trustees 17
Section 2. Indemnification and Limitation of
Liability 17
Section 3. Trustee's Good Faith Action, Expert Advice,
No Bond or Surety 18
Section 4. Insurance 18
ARTICLE VIII 18
Miscellaneous 18
Section 1. Liability of Third Persons Dealing with
Trustees 18
Section 2. Termination of Trust or Series 19
Section 3. Merger and Consolidation 19
Section 4. Amendments 19
Section 5. Filing of Copies, References, Headings 20
Section 6. Applicable Law 20
Section 7. Provisions in Conflict with Law or
Regulations 20
Section 8. Business Trust Only 21
Section 9. Use of the Name "Kiewit" 21
AGREEMENT AND DECLARATION OF TRUST
OF
KIEWIT INVESTMENT TRUST
WHEREAS, this AGREEMENT AND DECLARATION OF TRUST is made and
entered into as of the date set forth below by the Trustees named
hereunder for the purpose of forming a Delaware business trust in
accordance with the provisions hereinafter set forth,
NOW, THEREFORE, the Trustees hereby direct that a
Certificate of Trust be filed with the Office of the Secretary of
State of the State of Delaware and do hereby declare that the Trustees
will hold IN TRUST all cash, securities and other assets which the
Trust now possesses or may hereafter acquire from time to time in any
manner and manage and dispose of the same upon the following terms and
conditions for the pro rata benefit of the holders of Shares in this
Trust.
ARTICLE I.
Name and Definitions
Section 1. Name. This trust shall be known as "KIEWIT
INVESTMENT TRUST" and the Trustees shall conduct the business of the
Trust under that name or any other name as they may from time to time
determine.
Section 2. Definitions. Whenever used herein, unless
otherwise required by the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust
established by this Agreement and Declaration of Trust, as amended
from time to time;
(b) The "Trust Property" means any and all property, real
or personal, tangible or intangible, which is owned or held by or for
the account of the Trust;
(c) "Trustees" refers to the persons who have signed this
Agreement and Declaration of Trust, so long as they continue in office
in accordance with the terms hereof, and all other persons who may
from time to time be duly elected or appointed to serve on the Board
of Trustees in accordance with the provisions hereof, and reference
herein to a Trustee or the Trustees shall
refer to such person or persons in their capacity as trustees
hereunder;
(d) "Shares" means the shares of beneficial interest into
which the beneficial interest in the Trust shall be divided from time
to time and includes fractions of Shares as well as whole Shares;
(e) "Holder" means a record owner of outstanding Shares;
(f) "Person" means and includes individuals, corporations,
partnerships, trusts, foundations, plans, associations, joint
ventures, estates and other entities, whether or not legal entities,
and governments and agencies and political subdivisions thereof,
whether domestic or foreign;
(g) The "1940 Act" refers to the Investment Company Act of
1940 and the Rules and Regulations thereunder, all as amended from
time to time. References herein to specific sections of the 1940 Act
shall be deemed to include such Rules and Regulations as are
applicable to such sections as determined by the Trustees or their
designees;
(h) The terms "Commission" and "Principal Underwriter"
shall have the respective meanings given them in Section 2(a)(7) and
Section (2)(a)(29) of the 1940 Act;
(i) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(j) "By-Laws" shall mean the By-Laws of the Trust as
amended from time to time;
(k) The term "Interested Person" has the meaning given it
in Section 2(a)(19) of the 1940 Act;
(l) "Investment Manager" or "Manager" means a party
furnishing services to the Trust pursuant to any contract described in
Article IV, Section 7(a) hereof;
(m) "Series" refers to each Series of Shares established
and designated under or in accordance with the provisions of Article
III.
ARTICLE II.
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on
the business of a management investment company
registered under the 1940 Act through one or more Series investing
primarily in securities.
ARTICLE III.
Shares
Section 1. Division of Beneficial Interest. The beneficial
interest in the Trust shall at all times be divided into an unlimited
number of Shares, with a par value of $ .01 per Share provided that
the Shares of Series that are established by the Trustees to be
taxable as a separate partnership for federal income tax purposes
shall have no par value. The Trustees may authorize the division of
Shares into separate Series and the division of Series into separate
classes of Shares. The different Series shall be established and
designated, and the variations in the relative rights and preferences
as between the different Series shall be fixed and determined, by the
Trustees. If only one Series shall be established, the Shares shall
have the rights and preferences provided for herein and in Article
III, Section 6 hereof to the extent relevant and not otherwise
provided for herein.
Subject to the provisions of Section 6 of this Article III,
each Share shall have voting rights as provided in Article V hereof,
and Holders of the Shares of any Series shall be entitled to receive
dividends and distributions, when, if and as declared with respect
thereto in the manner provided in Article VI, Section 1 hereof. No
Share shall have any priority or preference over any other Share of
the same Series with respect to dividends or distributions of the
Trust or otherwise. All dividends and distributions shall be made
ratably among all Holders of a Series from the assets held with
respect to such Series according to the number of Shares of such
Series held of record by such Holders on the record date for any
dividend or distribution or on the date of termination of the Trust,
as the case may be. Holders shall have no preemptive or other right
to subscribe to any additional Shares or other securities issued by
the Trust or any Series. The Trustees may from time to time divide or
combine the Shares of a Series into a greater or lesser number of
Shares of such Series without thereby materially changing the
proportionate beneficial interest of such Shares in the assets held
with respect to that Series or materially affecting the rights of
Shares of any other Series.
Section 2. Ownership of Shares. The ownership of Shares
shall be recorded on the books of the Trust or a transfer or similar
agent for the Trust, which books shall be maintained separately for
the Shares of each Series. No certificates evidencing the ownership
of Shares shall be issued except as the Board of Trustees may
otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the transfer of Shares of each
Series and similar matters and, by resolution, may restrict the
transfer of Shares of a Series. The record books of the Trust as kept
by the Trust or any transfer or similar agent, as the case may be,
shall be conclusive as to the identity of the Holders of each Series
and as to the number of Shares of each Series held from time to time
by each Holder.
Section 3. Investments in the Trust. Investments may be
accepted by the Trust from such Persons, at such times, on such terms,
and for such consideration as the Trustees from time to time may
authorize. Each investment shall be credited to the Holder's account
in the form of full and fractional Shares of the Trust, in such Series
as the purchaser shall select, at the net asset value per Share next
determined for such Series after receipt of the investment; provided,
however, that the Trustees may, in their sole discretion, impose a
reimbursement fee upon investments in the Trust.
Section 4. Status of Shares and Limitation of Personal
Liability. Shares shall be deemed to be personal property giving only
the rights provided in this instrument, the By-Laws of the Trust and
the resolutions of the Board of Trustees. Every Holder by virtue of
having become a Holder shall be held to have expressly assented and
agreed to the terms thereof. The death of a Holder during the
existence of the Trust shall not operate to terminate the Trust, nor
entitle the representative of any deceased Holder to an accounting or
to take any action in court or elsewhere against the Trust or the
Trustees, but shall entitle such representative only to the rights of
said deceased Holder under this Declaration of Trust. Ownership of
Shares shall not entitle a Holder to any title in or to the whole or
any part of the Trust Property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership of
Shares constitute the Holders as partners or joint venturers except as
specifically provided for pursuant to Article III, Section 6 herein or
by resolution of the Board of Trustees. Neither the Trust nor the
Trustees, nor any officer, employee or agent of the Trust shall have
any power to bind personally any Holder, or to call upon any Holder
for the payment of any sum of money or assessment whatsoever other
than such as the Holder may at any time agree to pay.
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares. Notwithstanding any other provision of this
Declaration of Trust to the contrary, and without limiting the power
of the Board of Trustees to amend the Declaration of Trust as provided
elsewhere herein, the Board of Trustees shall have the power to amend
this Declaration of Trust, at any time and from time to time, in such
manner as the Board of Trustees may determine in their sole
discretion, without the need for action by any Holder, so as to add
to, delete, replace or otherwise modify any provisions relating to the
Shares contained in this Declaration of Trust, provided that before
adopting any such amendment without approval of the Holders the Board
of Trustees shall determine that it is consistent with the fair and
equitable treatment of all Holders or that approval of the Holders is
not required by the 1940 Act or other applicable law. If Shares have
been issued, approval of the Holders shall be required to adopt any
amendments to this Declaration of Trust which would adversely affect
to a material degree the rights and preferences of the Shares of any
Series or to increase or decrease the par value of the Shares of any
Series.
Section 6. Establishment and Designation of Shares. The
establishment and designation of any Series of Shares shall be
effective upon the adoption by a majority of the Trustees of a
resolution which sets forth such establishment and designation and the
relative rights and preferences of Holders of such Series. Each such
resolution shall be incorporated herein by reference (and shall be
deemed a part of Section 6 of Article III of this Declaration of
Trust) upon adoption. Any inconsistencies or conflict between the
terms of any such resolution and this Declaration of Trust shall be
resolved in favor of such resolution.
Shares of each Series established pursuant to this Section
6, unless otherwise provided in the resolution establishing such
Series, shall have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All
consideration received by the Trust for the issue or sale of Shares of
a Series, including dividends and distributions paid by, and
reinvested in, such Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings,
profits, and proceeds thereof from whatever source derived, including,
without limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably be held with respect to that Series for all purposes,
subject only to the rights of creditors, and shall be so recorded upon
the books of account of the Trust. Such consideration, assets,
income, earnings, profits and proceeds thereof, from whatever source
derived, including, without limitation, any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds, in whatever
form the same may be, are herein referred to as "assets held with
respect to" that Series. In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or payments
which are not readily identifiable as assets held with respect to any
particular Series (collectively "General Assets"), the Trustees shall
allocate such General Assets to, between or among any one or more of
the Series in such manner and on such basis as the Trustees, in their
sole discretion, deem fair and equitable, and any General Asset so
allocated to a particular Series shall be held with respect to that
Series. Each such allocation by the Trustees shall be conclusive and
binding upon the Holders of all Series for all purposes in absence of
manifest error.
(b) Liabilities Held with Respect to a Particular Series.
The assets of the Trust held with respect to each Series shall be
charged with the liabilities of the Trust with respect to such Series
and all expenses, costs, charges and reserves attributable to such
Series, and any general liabilities of the Trust which are not readily
identifiable as being held in respect of a Series shall be allocated
and charged by the Trustees to and among any one or more Series in
such manner and on such basis as the Trustees in their sole discretion
deem fair and equitable. The liabilities, expenses, costs, charges,
and reserves so charged to a Series are herein referred to as
"liabilities held with respect to" that Series. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees
shall be conclusive and binding upon the holders of all Series for all
purposes in absence of manifest error. All Persons who have extended
credit which has been allocated to a particular Series, or who have a
claim or contract which has been allocated to a Series, shall look
exclusively to the assets held with respect to such Series for payment
of such credit, claim, or contract. In the absence of an express
agreement so limiting the claims of such creditors, claimants and
contracting parties, each creditor, claimant and contracting party
shall be deemed nevertheless to have agreed to such limitation unless
an express provision to the contrary has been incorporated in the
written contract or other document establishing the contractual
relationship.
(c) Dividends, Distributions, Redemptions, and Repurchases.
No dividend or distribution including, without limitation, any
distribution paid upon termination of the Trust or of any Series with
respect to, or any redemption or repurchase of, the Shares of any
Series shall be effected by the Trust other than from the assets held
with respect to such Series, nor shall any Holder of any Series
otherwise have any right or claim against the assets held with respect
to any other Series except to the extent that such Holder has such a
right or claim hereunder as a Holder of such other Series. The
Trustees shall have full discretion to determine which items shall be
treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Holders in absence of manifest error.
(d) Voting. All Shares of the Trust entitled to vote on a
matter shall vote without differentiation between the separate Series
on a one-vote-per-Share basis; provided however, if a matter to be
voted on affects only the interests of not all Series, then only the
Holders of such affected Series shall be entitled to vote on the
matter.
(e) Equality. All the Shares of each Series shall
represent an equal proportionate undivided interest in the assets held
with respect to such Series (subject to the liabilities of such Series
and such rights and preferences as may have been established and
designated with respect to classes of Shares within such Series), and
each Share of a Series shall be equal to each other Share of such
Series.
(f) Fractions. Any fractional Share of a Series shall have
proportionately all the rights and obligations of a whole share of
such Series, including rights with respect to voting, receipt of
dividends and distributions and redemption of Shares.
(g) Exchange Privilege. The Trustees shall have the
authority to provide that the holders of Shares of any Series shall
have the right to exchange such Shares for Shares of one or more other
Series in accordance with such requirements and procedures as may be
established by the Trustees.
(h) Combination of Series. The Trustees shall have the
authority, without the approval of the Holders of any Series unless
otherwise required by applicable law, to combine the assets and
liabilities held with respect to any two or more Series into assets
and liabilities held with respect to a single Series.
(i) Elimination of Series. At any time that there are no
Shares outstanding of a Series, the Trustees may abolish such Series.
(j) Transferability. The Trustees shall have the authority
to provide that the shares of a Series are non-transferable.
(k) Termination of a Series. The Trustees shall have the
authority to provide that upon the bankruptcy or insolvency of a
Holder or in the case of the redemption of the entire interest of a
Holder in a Series, that such Series will be terminated unless a
majority in interest of the remaining Holders in the Series approve
the continuing existence of the Series.
(l) Series Established as a Partnership. The Trustees
shall have the authority to create Series intended to be classified as
a Partnership for federal income tax purposes. Pursuant to such
authority, the Trustees may provide that (i) Book Capital Accounts (as
defined in any resolution establishing and designating such Series)
are to be determined and maintained for each Holder in accordance with
Section 704(b) of the Internal Revenue Code of 1986, as amended (the
"Code") (and any successor provision thereto) and the Treasury
Regulations promulgated thereunder; (ii) upon liquidation of a Series
(or any Holder's interest therein), liquidating distributions shall be
made in accordance with the positive Book Capital Account balances of
the Holders; and, (iii) if any Holder in such Series has a deficit
balance in his Book Capital Account following the liquidation of his
interest in the Series, such Holder is unconditionally required to
restore the amount of such deficit balance to the Series, or in lieu
thereof, the resolution establishing the Series contain a "qualified
income offset" within the meaning of Treasury Regulation Section
1.704-1(b)(2)(ii)(d).
ARTICLE IV.
The Board of Trustees
Section 1. Number, Election and Tenure. The number of
Trustees constituting the Board of Trustees shall be fixed from time
to time by a written instrument signed, or by resolution approved at a
duly constituted meeting, by a majority of the Board of Trustees,
provided, however, that the number of Trustees shall in no event be
less than one (1) nor more than fifteen (15). Subject to the
requirements of Section 16(a) of the 1940 Act, the Board of Trustees,
by action of a majority of the then Trustees at a duly constituted
meeting, may fill vacancies in the Board of Trustees and remove
Trustees with or without cause. Each Trustee shall serve during the
continued lifetime of the Trust until he or she dies, resigns, is
declared bankrupt or incompetent by a court of competent jurisdiction,
or is removed. Any Trustee may resign at any time by written
instrument signed by him and delivered to any officer of the Trust or
to a meeting of the Trustees. Such resignation shall be effective
upon receipt unless specified to be effective at some other time.
Except to the extent expressly provided in a written agreement with
the Trust, no Trustee resigning and no Trustee removed shall have any
right to any compensation for any period following his or her
resignation or removal, or any right to damages or other payment on
account of such removal. Any Trustee may be removed at any meeting of
Holders by a vote of two-thirds of the outstanding Shares of the
Trust. A meeting of Holders for the purpose of electing or removing
one or more Trustees may be called (i) by the Trustees upon their own
vote, or (ii) upon the demand of Holders owning 10% or more of the
Shares of the Trust in the aggregate.
Section 2. Effect of Death, Resignation, etc. of a Trustee.
The death, declination, resignation, retirement, removal, or
incapacity of one or more Trustees, or all of them, shall not operate
to annul the Trust or to revoke any existing agency created pursuant
to the terms of this Declaration of Trust. Whenever a vacancy in the
Board of Trustees shall occur, until such vacancy is filled as
provided in Article IV, Section 1, the Trustees in office, regardless
of their number, shall have all the powers granted to the Trustees and
shall discharge all the duties imposed upon the Trustees by this
Declaration of Trust.
Section 3. Powers. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by
the Board of Trustees, and such Board shall have all powers necessary
or convenient to carry out that responsibility including the power to
engage in transactions of all kinds on behalf of the Trust. Trustees,
in all instances, shall act as principals and are and shall be free
from the control of the Holders. The Trustees shall have full power
and authority to do any and all acts and to make and execute any and
all contracts, documents and instruments that they may consider
desirable, necessary or appropriate in connection with the
administration of the Trust. Without limiting the foregoing, the
Trustees may: adopt, amend and repeal By-Laws not inconsistent with
this Declaration of Trust providing for the regulation and management
of the affairs of the Trust; elect and remove such officers and
appoint and terminate such agents as they consider appropriate;
appoint from their own number and establish and terminate one or more
committees consisting of two or more Trustees who may exercise the
powers and authority of the Board of Trustees to the extent that the
Trustees determine; employ one or more custodians of the assets of the
Trust and may authorize such custodians to employ subcustodians and to
deposit all or any part of such assets in a system or systems for the
central handling of securities or with a Federal Reserve Bank, retain
a transfer agent or a shareholder servicing agent, or both; provide
for the issuance and distribution of Shares by the Trust directly or
through one or more Principal Underwriters or otherwise; redeem,
repurchase and transfer Shares pursuant to applicable law; set record
dates for the determination of Holders with respect to various
matters; declare and pay dividends and distributions to Holders of
each Series from the assets of such Series; establish from time to
time, in accordance with the provisions of Article III, Section 6
hereof, any Series of Shares, each such Series to operate as a
separate and distinct investment medium and with separately defined
investment objectives and policies and distinct investment purpose;
and in general delegate such authority as they consider desirable to
any officer of the Trust, to any committee of the Trustees and to any
agent or employee of the Trust or to any such custodian, transfer or
servicing agents, Investment Manager or Principal Underwriter. Any
determination as to what is in the interests of the Trust made by the
Trustees in good faith shall be conclusive. In construing the
provisions of this Declaration of Trust, the presumption shall be in
favor of a grant of power to the Trustees and unless otherwise
specified herein or required by the 1940 Act or other applicable law,
any action by the Board of Trustees shall be deemed effective if
approved or taken by a majority of the Trustees then in office or a
majority of any duly constituted committee of Trustees. Any action
required or permitted to be taken at any meeting of the Board of
Trustees, or any committee thereof, may be taken without a meeting if
all members of the Board of Trustees or committee (as the case may be)
consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of the Board of Trustees, or committee,
except as otherwise provided in the 1940 Act.
Without limiting the foregoing, the Trust shall have power
and authority:
(a) To invest and reinvest cash and cash items, to hold
cash uninvested, and to subscribe for, invest in, reinvest in,
purchase or otherwise acquire, own, hold, pledge, sell, assign,
transfer, exchange, distribute, write options on, lend or otherwise
deal in or dispose of contracts for the future acquisition or delivery
of all types of securities,futures contracts and options thereon, and
forward currency contracts of every nature and kind, including,
without limitation, all types of bonds, debentures, stocks, preferred
stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances, and
other securities of any kind, issued, created, guaranteed, or
sponsored by any and all Persons, including, without limitation,
states, territories, and possessions of the United States and the
District of Columbia and any political subdivision, agency, or
instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international instrumentality or organization, or by any bank or
savings institution, or by any corporation or organization organized
under the laws of the United States or of any state, territory, or
possession thereof, or by any corporation or organization organized
under any foreign law, or in "when issued" contracts for any such
securities, futures contracts and options thereon, and forward
currency contracts, to change the investments of the assets of the
Trust; and to exercise any and all rights, powers, and privileges of
ownership or interest in respect of any and all such investments of
every kind and description, including, without limitation, the right
to consent and otherwise act with respect thereto, with power to
designate one or more Persons, to exercise any of said rights, powers,
and privileges in respect of any of said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease, or write options with respect to or otherwise deal in any
property rights relating to any or all of the assets of the Trust or
any Series;
(c) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property; and
to execute and deliver proxies or powers of attorney to such person or
persons as the Trustees shall deem proper, granting to such person or
persons such power and discretion with relation to securities or
property as the Trustees shall deem proper;
(d) To exercise powers and right of subscription or
otherwise which in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not
indicating that it is trust property, whether in bearer, unregistered
or other negotiable form, or in its own name or in the name of a
custodian or subcustodian or a nominee or nominees or otherwise or to
authorize the custodian or a subcustodian or a nominee or nominees to
deposit the same in a securities depository, subject in each case to
the applicable provisions of the 1940 Act;
(f) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer
of any security which is held in the Trust; to consent to any
contract, lease, mortgage, purchase or sale of property by such
corporation or issuer; and to pay calls or subscriptions with respect
to any security held in the Trust;
(g) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security to,
any such committee, depositary or trustee, and to delegate to them
such power and authority with relation to any security (whether or not
so deposited or transferred) as the Trustees shall deem proper, and to
agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees
shall deem proper;
(h) To litigate, compromise, arbitrate, settle or otherwise
adjust claims in favor of or against the Trust or a Series, or any
matter in controversy, including but not limited to claims for taxes;
(i) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) To borrow funds or other property in the name of the
Trust or Series exclusively for Trust purposes;
(k) To endorse or guarantee the payment of any notes or
other obligations of any Person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property
such insurance as the Trustees may deem necessary, desirable or
appropriate for the conduct of the business, including, without
limitation, insurance policies insuring the assets of the Trust or
payment of distributions and principal on its portfolio investments,
and insurance policies insuring the Holders, Trustees, officers,
employees, agents, Investment Manager, principal underwriters, or
independent contractors of the Trust, individually against all claims
and liabilities of every nature arising by reason of holding Shares,
holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such
Person as Trustee, officer, employee, agent, Investment Manager,
Principal Underwriter, or independent contractor, including any action
taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such Person
against liability; and
(m) To adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions,
including the purchasing of life insurance and annuity contracts as a
means of providing such retirement and other benefits, for any or all
of the Trustees, officers, employees and agents of the Trust.
The Trust shall not be limited to investing in obligations
maturing before the possible termination of the Trust or one or more
of its Series. The Trust shall not in any way be bound or limited by
any present or future law or custom in regard to investment by
fiduciaries. The Trust shall not be required to obtain any court
order to deal with any assets of the Trust or take any other action
hereunder.
Section 4. Payment of Expenses by the Trust. Subject to
the provisions of Article III, Section 6(b), the Trustees are
authorized to pay or cause to be paid out of the principal or income
of the Trust or Series, or partly out of the principal and partly out
of income, and to charge or allocate the same to, between or among
such one or more of the Series that may be established or designated
pursuant to Article III, Section 6, all expenses, fees, charges, taxes
and liabilities incurred or arising in connection with the Trust or
Series, or in connection with the management thereof, including, but
not limited to, the Trustees' compensation and such expenses and
charges for the services of the Trust's officers, employees,
Investment Manager^, Principal Underwriter, auditors, counsel,
custodian, transfer agent, servicing agents, and such other agents or
independent contractors and such other expenses and charges as the
Trustees may deem necessary or proper to incur.
Section 5. Ownership of Assets of the Trust. Title to all
of the assets of the Trust shall at all times be considered as vested
in the Trust, except that the Trustees shall have power to cause legal
title to any Trust Property to be held by or in the name of one or
more of the Trustees, or in the name of the Trust, or in the name of
any other Person as nominee, on such terms as the Trustees may
determine. Upon the resignation, incompetency, bankruptcy, removal,
or death of a Trustee he or she shall automatically cease to have any
such title in any of the Trust Property, and the title of such Trustee
in the Trust Property shall vest automatically in the remaining
Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and
delivered. The Trustees may determine that the Trust or the Trustees,
acting for and on behalf of the Trust, shall be deemed to hold
beneficial ownership of any income earned on the securities owned by
the Trust, whether domestic or foreign.
Section 6. Service Contracts.
(a) The Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive advisory, management and/or
administrative services for the Trust or for any Series with any
Person; and any such contract may contain such other terms as the
Trustees may determine, including without limitation, authority for
the Investment Manager to determine from time to time without prior
consultation with the Trustees what investments shall be purchased,
held, sold or exchanged and what portion, if any, of the assets of the
Trust shall be held uninvested and to make changes in the Trust's
investments, and such other responsibilities as may specifically be
delegated to such Person.
(b) The Trustees may also, at any time and from time to
time, contract with any Persons, appointing such Persons exclusive or
nonexclusive distributor or Principal Underwriter for the Shares of
one or more of the Series or other securities to be issued by the
Trust. Every such contract may contain such other terms as the
Trustees may determine.
(c) The Trustees are also empowered, at any time and from
time to time, to contract with any Persons, appointing such Person(s)
to serve as custodian(s), transfer agent and/or shareholder servicing
agent for the Trust or one or more of its Series. Every such contract
shall comply with such terms as may be required by the Trustees.
(d) The Trustees are further empowered, at any time and
from time to time, to contract with any Persons to provide such other
services to the Trust or one or more of the Series, as the Trustees
determine to be in the best interests of the Trust and the applicable
Series.
(e) The fact that:
(i) any of the Holders, Trustees, or officers of the
Trust is a shareholder, director, officer, partner, trustee,
employee, Manager, adviser, Principal Underwriter,
distributor, or affiliate or agent of or for any Person with
which an advisory, management or administration contract, or
Principal Underwriter's or distributor's contract, or
transfer, shareholder servicing or other type of service
contract may be made, or that
(ii) any Person with which an advisory, management or
administration contract or Principal Underwriter's or
distributor's contract, or transfer, shareholder servicing
or other type of service contract may be made also has an
advisory, management or administration contract, or
principal underwriter's or distributor's contract, or
transfer, shareholder servicing or other service contract,
or has other business or interests with any other Person,
shall not affect the validity of any such contract or disqualify any
Holder, Trustee or officer of the Trust from voting upon or executing
the same, or create any liability or accountability to the Trust or
its Holders, provided approval of each such contract is made pursuant
to the applicable requirements of the 1940 Act.
ARTICLE V.
Holders' Voting Powers and Meetings
Section 1. Voting Powers. Subject to the provisions of
Article III, Sections 5 and 6(d), the Holders shall have right to vote
only (i) for removal of Trustees as provided in Article IV, Section 1,
and (ii) with respect to such additional matters relating to the Trust
as may be required by the applicable provisions of the 1940 Act,
including Section 16(a) thereof, and (iii) on such other matters as
the Trustees may consider necessary or desirable. Each whole Share
shall be entitled to one vote as to any matter on which it is entitled
to vote and each fractional Share shall be entitled to a proportionate
fractional vote. There shall be no cumulative voting in the election
of Trustees. Shares may be voted in person or by proxy. A proxy
purporting to be executed by or on behalf of a Holder shall be deemed
valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger.
Section 2. Voting Power and Meetings. Meetings of the
Holders may be called by the Trustees for the purposes described in
Section 1 of this Article V. A meeting of Holders may be held at any
place designated by the Trustees. Written notice of any meeting of
Holders shall be given or caused to be given by the Trustees by
delivering personally or mailing such notice at least seven (7) days
before such meeting, postage prepaid, stating the time and place of
the meeting, to each Holder at the Holder's address as it appears on
the records of the Trust. Whenever notice of a meeting is required to
be given to a Holder under this Declaration of Trust, a written waiver
thereof, executed before or after the meeting by such Holder or his or
her attorney thereunto authorized and filed with the records of the
meeting, or actual attendance at the meeting of Holders in person or
by proxy, shall be deemed equivalent to such notice.
Section 3. Quorum and Required Vote. Except when a larger
quorum is required by the applicable provisions of the 1940 Act, forty
percent (40%) of the Shares entitled to vote on a matter shall
constitute a quorum at a meeting of the Holders. Any meeting of
Holders may be adjourned from time to time by a majority of the votes
properly cast upon the question of adjourning a meeting to another
date and time, whether or not a quorum is present, and the meeting may
be held as adjourned within a reasonable time after the date set for
the original meeting without further notice. Subject to the
provisions of Article III, Section 6(d) and the applicable provisions
of the 1940 Act, when a quorum is present at any meeting, a majority
of the Shares voted shall decide any questions except only a plurality
vote shall be necessary to elect Trustees.
Section 4. Action by Written Consent. Any action taken by
Holders may be taken without a meeting if Holders holding a majority
of the Shares entitled to vote on the matter (or such larger
proportion thereof as shall be required by any express provision of
this Declaration of Trust or by the By-Laws) and holding a majority
(or such larger proportion as aforesaid) of the Shares of any Series
(or class) entitled to vote separately on the matter consent to the
action in writing and such written consents are filed with the records
of the meetings of Holders. Such consent shall be treated for all
purposes as a vote taken at a meeting of Holders.
Section 5. Record Dates. For the purpose of determining
the Holders who are entitled to vote or act at any meeting or any
adjournment thereof, the Trustees may fix a time, which shall be not
more than ninety (90) days before the date of any meeting of Holders,
as the record date for determining the Holders having the right to
notice of and to vote at such meeting and any adjournment thereof, and
in such case only Holders of record on such record date shall have
such right, notwithstanding any transfer of shares on the books of the
Trust after the record date. For the purpose of determining the
Holders who are entitled to receive payment of any dividend or of any
other distribution, the Trustees may fix a date, which shall be before
the date for the payment of such dividend or distribution, as the
record date for determining the Holders having the right to receive
such dividend or distribution. Nothing in this Section shall be
construed as precluding the Trustees from setting different record
dates for different Series.
ARTICLE VI.
Net Asset Value, Distributions, and Redemptions
Section 1. Determination of Net Asset Value, Net Income,
and Distributions. Subject to Article III, Section 6 hereof, the
Trustees, in their absolute discretion, may prescribe and shall set
forth in the By-laws or in a duly adopted resolution of the Trustees
such bases and time for determining the per Share net asset value of
the Shares of any Series and the net income attributable to the Shares
of any Series and the declaration and payment of dividends and
distributions on the Shares of any Series, as they may deem necessary
or desirable.
Section 2. Redemptions and Repurchases. The Trust shall
purchase such Shares as are offered by any Holder for redemption, upon
the presentation of a proper instrument of transfer together with a
request directed to the Trust or a Person designated by the Trust that
the Trust redeem such Shares or in accordance with such procedures for
redemption as the Trustees may from time to time authorize; and the
Trust will pay therefor the net asset value thereof, in accordance
with the By-Laws, the applicable provisions of the 1940 Act or as
further provided by resolution of the Trustees. Payment for said
Shares shall be made by the Trust to the Holder within seven days
after the date on which the request for redemption is received in
proper form. The obligation set forth in this Section 2 is subject to
the provision that in the event that any time the New York Stock
Exchange (the "Exchange") is closed for other than weekends or
holidays, or if permitted by the Rules of the Commission during
periods when trading on the Exchange is restricted or during any
emergency which makes it impracticable for the Trust to dispose of the
investments of the applicable Series or to determine fairly the value
of the net assets held with respect to such Series or during any other
period permitted by order of the Commission for the protection of
investors, such obligations may be suspended or postponed by the
Trustees.
The redemption price may in any case or cases be paid in
cash or wholly or partly in kind in accordance with Rule 18f-1 under
the 1940 Act if the Trustees determine that such payment is advisable
in the interest of the remaining Holders of the Series of which the
Shares are being redeemed. Subject to the foregoing, the selection
and quantity of securities or other property so paid or delivered as
all or part of the redemption price shall be determined by or under
authority of the Trustees. In no case shall the Trust be liable for
any delay of any corporation or other Person in transferring
securities selected for delivery as all or part of any payment in
kind.
Section 3. Redemptions at the Option of the Trust. The
Trust shall have the right, at its option, upon 60 days notice to the
affected Holder at any time to redeem Shares of such Holder at the net
asset value thereof as described in Section 1 of this Article VI or as
further provided by resolution of Trustees: (i) if at such time such
Holder owns Shares of any Series having an aggregate net asset value
of less than a minimum value determined from time to time by the
Trustees; or (ii) to the extent that such Holder owns Shares of a
Series equal to or in excess of a maximum percentage of the
outstanding Shares of such Series determined from time to time by the
Trustees; or (iii) to the extent that such Holder owns Shares equal to
or in excess of a maximum percentage, determined from time to time by
the Trustees, of the outstanding Shares of the Trust.
Section 4. Transfer of Shares. Except to the extent that
the Trustees have provided by resolution that the Shares of a Series
are non-transferrable, the Trust shall transfer shares held of record
by any Person to any other Person upon receipt by the Trust or a
Person designated by the Trust of a written request therefore in such
form and pursuant to such procedures as may be approved by the
Trustees.
ARTICLE VII.
Compensation and Limitation of Liability
Section 1. Compensation of Trustees. The Trustees as such
shall be entitled to reasonable compensation from the Trust, and they
may fix the amount of such compensation from time to time. Nothing
herein shall in any way prevent the employment of any Trustee to
provide advisory, management, legal, accounting, investment banking or
other services to the Trust and to be specially compensated for such
services by the Trust.
Section 2. Indemnification and Limitation of Liability.
The Trustees shall not be responsible or liable in any event for any
neglect or wrong-doing of any officer, agent, employee, Manager or
Principal Underwriter of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee, and, subject
to the provisions of the Bylaws, the Trust out of its assets may
indemnify and hold harmless each and every Trustee and officer of the
Trust from and against any and all claims, demands, costs, losses,
expenses, and damages whatsoever arising out of or related to such
Trustee's performance of his or her duties as a Trustee or officer of
the Trust; provided that nothing herein contained shall indemnify,
hold harmless or protect any Trustee or officer from or against any
liability to the Trust or any Holder to which he or she would
otherwise be subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of his or her office.
Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever issued, executed
or done by or on behalf of the Trust or the Trustees or any of them in
connection with the Trust shall be conclusively deemed to have been
issued, executed or done only in or with respect to their or his or
her capacity as Trustees or Trustee, and such Trustees or Trustee
shall not be personally liable thereon.
Section 3. Trustee's Good Faith Action, Expert Advice, No
Bond or Surety. The exercise by the Trustees of their powers
hereunder shall be binding upon everyone interested in or dealing with
the Trust. A Trustee shall be liable to the Trust and to any Holder
solely for his or her own wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of the office of Trustee, and shall not be liable for errors of
judgment or mistakes of fact or law. The Trustees may take advice of
counsel or other experts with respect to the meaning and operation of
this Declaration of Trust, and shall be under no liability for any act
or omission in accordance with such advice nor for failing to follow
such advice. The Trustees shall not be required to give any bond as
such, nor any surety if a bond is required.
Section 4. Insurance. The Trustees shall be entitled and
empowered to the fullest extent permitted by law to purchase with
Trust assets insurance for liability and for all expenses reasonably
incurred or paid or expected to be paid by a Trustee or officer in
connection with any claim, action, suit or proceeding in which he or
she becomes involved by virtue of his or her capacity or former
capacity with the Trust, whether or not the Trust would have the power
to indemnify him or her against such liability under the provisions of
this Article.
ARTICLE VIII.
Miscellaneous
Section 1. Liability of Third Persons Dealing with
Trustees. No Person dealing with the Trustees shall be bound to make
any inquiry concerning the validity of any transaction made or to be
made by the Trustees or to see to the application of any payments made
or property transferred to the Trust or upon its order.
Section 2. Termination of Trust or Series. Unless
terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by the
Trustees upon 60 days prior written notice to the Holders. Any Series
may be terminated at any time by the Trustees upon 60 days prior
written notice to the Holders of that Series.
Upon termination of the Trust (or any Series, as the case
may be), after paying or otherwise providing for all charges, taxes,
expenses and liabilities held, severally, with respect to each Series
(or the applicable Series, as the case may be), whether due or accrued
or anticipated as may be determined by the Trustees, the Trust shall,
in accordance with such procedures as the Trustees consider
appropriate, reduce the remaining assets held, severally, with respect
to each Series (or the applicable Series, as the case may be), to
distributable form in cash or shares or other securities, and any
combination thereof, and distribute the proceeds held with respect to
each Series (or the applicable Series, as the case may be), (i) to the
Holders of a Series not taxable as partnerships for federal income tax
purposes, as a Series, ratably according to the number of Shares of
that Series held by the several Holders on the date of termination
and, (ii) to the Holders of a Series, as a Series, in accordance with
the positive Book Capital Account balances of the Holders.
Section 3. Merger and Consolidation. The Trustees may
cause (i) the Trust or one or more of its Series to the extent
consistent with applicable law to be merged into or consolidated with
another Trust, series or Person, (ii) the Shares of the Trust or any
Series to be converted into beneficial interests in another business
trust (or series thereof), (iii) the Shares to be exchanged for assets
or property under or pursuant to any state or federal statute to the
extent permitted by law or (iv) a sale of assets of the Trust or one
or more of its Series. Such merger or consolidation, Share
conversion, Share exchange or sale of assets must be authorized by
vote as provided in Article V, Section 3 herein; provided that in all
respects not governed by statute or applicable law, the Trustees shall
have power to prescribe the procedure necessary or appropriate to
accomplish a sale of assets, Share exchange, merger or consolidation
including the power to create one or more separate business trusts to
which all or any part of the assets, liabilities, profits or losses of
the Trust may be transferred and to provide for the conversion of
Shares of the Trust or any Series into beneficial interests in such
separate business trust or trusts (or series thereof).
Section 4. Amendments. This Declaration of Trust may be
restated and/or amended at any time by an instrument in writing signed
by a majority of the Trustees then holding office. Any such
restatement and/or amendment hereto shall be effective immediately
upon execution and approval. The Certificate of Trust of the Trust
may be restated and/or amended by a similar procedure, and any such
restatement and/or amendment shall be effective immediately upon
filing with the Office of the Secretary of State of the State of
Delaware or upon such future date as may be stated therein.
Section 5. Filing of Copies, References, Headings. The
original or a copy of this instrument and of each restatement and/or
amendment hereto shall be kept at the office of the Trust where it may
be inspected by any Holder. Anyone dealing with the Trust may rely on
a certificate by an officer of the Trust as to whether or not any such
restatements and/or amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if
it were the original, may rely on a copy certified by an officer of
the Trust to be a copy of this instrument or of any such restatements
and/or amendments. In this instrument and in any such restatements
and/or amendment, references to this instrument, and all expressions
like "herein," "hereof" and "hereunder," shall be deemed to refer to
this instrument as amended or affected by any such restatements and/or
amendments. Headings are placed herein for convenience of reference
only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. Whenever the
singular number is used herein, the same shall include the plural; and
the neuter, masculine and feminine genders shall include each other,
as applicable. This instrument may be executed in any number of
counterparts each of which shall be deemed an original.
Section 6. Applicable Law. This Agreement and Declaration
of Trust is created under and is to be governed by and construed and
administered according to the laws of the State of Delaware and the
Delaware Business Trust Act, as amended from time to time (the "Act").
The Trust shall be a Delaware business trust pursuant to such Act, and
without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a business trust.
Section 7. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration of Trust are
severable, and if the Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with the 1940 Act,
the regulated investment company provisions of the Internal Revenue
Code or with other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of the
Declaration of Trust; provided, however, that such determination shall
not affect any of the remaining provisions of the Declaration of Trust
or render invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of the Declaration of Trust shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision in any
other jurisdiction or any other provision of the Declaration of Trust
in any jurisdiction.
Section 8. Business Trust Only. It is the intention of the
Trustees to create a business trust pursuant to the Act, and thereby
to create only the relationship of trustee and beneficial owners
within the meaning of such Act between the Trustees and each Holder.
Except to the extent provided by resolution of the Trustees
establishing a Series intended to be classified as a partnership for
federal income tax purposes, it is not the intention of the Trustees
to create a general partnership, limited partnership, joint stock
association, corporation, bailment, joint venture, or any form of
legal relationship other than a business trust pursuant to such Act,
and except as so provided in such resolution, nothing in this
Declaration of Trust shall be construed to make the Holders, either by
themselves or with the Trustees, partners or members of a joint stock
association.
Section 9. Use of the Name "KIEWIT". The name "KIEWIT" and
all rights to the use of the name "KIEWIT" belongs to Kiewit
Investment Management ("KIM"), the Manager of the Trust. KIM has
consented to the use by the Trust of the identifying word "KIEWIT" and
has granted to the Trust a non-exclusive license to use the name
"KIEWIT" as part of the name of the Trust and the name of any Series
of Shares. In the event KIEWIT or an affiliate of KIM is not
appointed as Manager or ceases to be the Manager of the Trust or of
any Series using such names, the non-exclusive license granted herein
may be revoked by KIM and the Trust promptly shall cease using the
name "KIEWIT" as part of its name or the name of any Series of Shares,
upon receipt of the written request therefore by KIM or any successor
to its interests in such name.
IN WITNESS WHEREOF, the Trustees named below do hereby make
and enter into this Declaration of Trust of Kiewit Investment Trust as
of this 19th day of February, 1997.
/s/ Richard R. Jaros
Richard R. Jaros
1000 Kiewit Plaza
Omaha, NE 68131-3374
/s/ Ann C. McCulloch
Ann C. McCulloch
1000 Kiewit Plaza
Omaha, NE 68131-3374
/s/ George Lee Butler
George Lee Butler
1000 Kiewit Plaza
Omaha, NE 68131-3374
Laurence B. Thomas
Lawrence B. Thomas
1000 Kiewit Plaza
Omaha, NE 68131-3374
/s/ John J. Quindlen
John J. Quindlen
2205 N. Southwinds Boulevard
Vero Beach, Florida 32963
Exhibit No. 24(b)(1)(ii)
CERTIFICATE OF TRUST
OF
KIEWIT INVESTMENT TRUST
a Delaware Business Trust
This Certificate of Trust of KIEWIT INVESTMENT TRUST (the
"Trust"), dated as of this 23rd day of January, 1997, is being duly
executed and filed, in order to form a business trust pursuant to the
Delaware Business Trust Act (the "Act"), Del. Code Ann. tit. 12,
Section 3801-3819.
1. NAME. The name of the business trust formed hereby is
"KIEWIT INVESTMENT TRUST."
2. REGISTERED OFFICE AND REGISTERED AGENT. The Trust will
become, prior to the issuance of shares of beneficial interest, a
registered investment company under the Investment Company Act of
1940, as amended. Therefore, in accordance with section 3807(b) of
the Act, the Trust has and shall maintain in the State of Delaware a
registered office and a registered agent for service of process.
(a) REGISTERED OFFICE. The registered office of the
Trust in Delaware is The Corporation Trust Company, 1209
Orange Street, Wilmington, Delaware 19801.
(b) REGISTERED AGENT. The registered agent for
service of process on the Trust in Delaware is The
Corporation Trust Company, 1209 Orange Street, Wilmington,
Delaware 19801.
3. LIMITATION OF LIABILITY. Pursuant to section 3804(a)
of the Act, the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular
series of the Trust, established pursuant to the terms of the
Agreement and Declaration of Trust of the Trust, shall be enforceable
against the assets of such series only, and not against the assets of
the Trust generally.
IN WITNESS WHEREOF, the Trustee named below does hereby
execute this Certificate of Trust as of the date first-above written.
/s/Ann C. McCulloch
Ann C. McCulloch
1000 Kiewit Plaza
Omaha, NE 68131-3374
Exhibit No. 24(b)(2)
KIEWIT INVESTMENT TRUST
A Delaware Business Trust
* * * * * * * * *
BY-LAWS
* * * * * * * * *
ARTICLE I
Offices
Section 1. Delaware Office. The registered office of The
Kiewit Investment Trust (the "Trust") in Delaware shall be located at
1209 Orange Street, Wilmington, Delaware 19801, and the name and
address of its Resident Agent for service of process is The
Corporation Trust Company.
Section 2. Other Offices. The Trust shall also
have a place of business in Omaha, Nebraska, and the Trust shall have
the power to open additional offices for the conduct of its business,
either within or outside the States of Delaware and Nebraska, at such
places as the Board of Trustees may from time to time designate.
ARTICLE II
Meetings of Holders
Section 1. Place of Meeting. Meetings of record owners of
outstanding shares of the Trust ("Holders") shall be held at any place
designated by the Board of Trustees. In the absence of any such
designation, Holders' meetings shall be held at the Trust's office in
Omaha.
Section 2. Call of Meetings. Meetings of the Holders may
be called at any time by the President, or by a majority of the Board
of Trustees. The Board of Trustees shall call a meeting of Holders
for the purpose of voting upon the question of removal of one or more
Trustees upon the written request of the holders of not less than ten
percent of the outstanding shares.
Section 3. Voting. The holders of each share of beneficial
interest of the Trust then issued and outstanding and entitled to
vote, irrespective of the series, shall be voted in the aggregate and
not by series, except: (1) when otherwise expressly provided by the
Agreement and Declaration of Trust; and (2) when required by the
Investment Company Act of 1940, as amended, shares shall be voted by
series.
A holder may cast his vote in person or by proxy, but no
proxy shall be valid after eleven months from its date, unless
otherwise provided in the proxy. At all meetings of Holders, unless
the voting is conducted by inspectors, all questions relating to the
qualification of voters and the validity of proxies and the acceptance
or rejection of votes shall be decided by the Chairman of the meeting.
Section 4. Inspectors. At any election of Trustees, the
Board of Trustees prior thereto may, or, if they have not so acted,
the Chairman of the meeting may, and upon the request of the holders
of ten percent of the shares entitled to vote at such election shall,
appoint two inspectors of election who shall first subscribe an oath
of affirmation to execute faithfully the duties of inspectors at such
election with strict impartiality and according to the best of their
ability, and shall after the election make a certificate of the result
of the vote taken. No candidate for the office of Trustee shall be
appointed such inspector. The Chairman of the meeting may cause a
vote by ballot to be taken upon any election or matter, and such vote
shall be taken upon the request of the Holders of ten percent of the
shares entitled to vote on such election or matter.
ARTICLE III
Trustees
Section 1. Place of Meeting. Meetings of the Board of
Trustees, regular or special, may be held at any place in or out of
the State of Delaware as the Board may from time to time determine.
Section 2. Telephone Meeting. Members of the Board of
Trustees or a committee of the Board of Trustees may participate in a
meeting by means of a conference telephone or similar communications
equipment if all persons participating in the meeting can hear each
other at the same time.
Section 3. Quorum. At all meetings of the Board of
Trustees a majority of the entire Board of Trustees shall constitute a
quorum for the transaction of business and the action of a majority of
the Trustees present at any meeting at which a quorum is present shall
be the action of the Board of Trustees unless the concurrence of a
greater or different proportion is required for such action by the
Investment Company Act of 1940. If a quorum shall not be present at
any meeting of Trustees, the Trustees present thereat may by a
majority vote adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be
present.
Section 4. Regular Meetings. Regular meetings of the Board
of Trustees may be held without notice at such time and place as shall
from time to time be determined by the Board of Trustees.
Section 5. Special Meetings. Special meetings of the Board
of Trustees may be called by the President on one day's notice to each
Trustee; special meetings shall be called by the President or
Secretary in like manner and on like notice on the written request of
two Trustees.
Section 6. Informal Actions. Any action required or
permitted to be taken at any meeting of the Board of Trustees or of
any Committee thereof may be taken without a meeting if a written
consent to such action is signed in one or more counterparts by all
members of the Board or of such Committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the
Board or Committee.
Section 7. Committees. The Board of Trustees may by
resolution passed by a majority of the whole Board appoint from among
its members an executive committee and other committees composed of
two or more Trustees, and may delegate to such committees, in the
intervals between meetings of the Board of Trustees, any or all of the
powers of the Board of Trustees in the management of the business and
affairs of the Trust. In the absence of any member of such committee,
the members thereof present at any meeting, whether or not they
constitute a quorum, may appoint a member of the Board of Trustees to
act in the place of such absent member.
Section 8. Action of Committee. A committee shall report
its actions and recommendations to the Board of Trustees at the Board
meeting next succeeding the committee meeting, and any action by a
committee shall be subject to revision and alteration by the Board of
Trustees, provided that no rights, of third persons shall be affected
by any such revision or alteration.
Section 9. Compensation. Any Trustee, whether or not he is
a salaried officer or employee of the Trust, may be compensated for
his services as Trustee or as a member of a committee of Trustees, or
as Chairman of the Board or Chairman of a committee by fixed periodic
payments or by fees for attendance at meetings or by both, and may be
reimbursed for transportation and other expenses, all in such manner
and amounts as the Board of Trustees may from time to time determine.
ARTICLE IV
Notices
Section 1. Form. Notices to Trustees shall be oral or by
telephone, facsimile, or telegram or in writing delivered personally
or mailed to the Trustees at their addresses appearing on the books of
the Trust. Notice by mail shall be deemed to be given at the time
when the same shall be mailed. Notice to Trustees need not state the
purpose of a regular or special meeting.
Section 2. Waiver. Whenever any notice of the time, place
or purpose of any meeting of the Trustees or committee is required to
be given under the provisions of these By-Laws, a waiver thereof in
writing, signed by the person or persons entitled to such notice and
filed with the records of the meeting, whether before or after the
holding thereof, or actual attendance at the meeting of Trustees or
committee in person, shall be deemed equivalent to the giving of such
notice to such persons.
ARTICLE V
Officers
Section 1. Number. The officers of the Trust shall be
chosen by the Board of Trustees and shall include: a President who
shall be the Chief Executive Officer of the Trust and a Trustee; a
Secretary; and a Treasurer. The Board of Trustees may, from time to
time, elect or appoint a Controller, one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Two or more offices
may be held by the same person but no officer shall execute,
acknowledge or verify any instrument in more than one capacity, if
such instrument is required by law, the Agreement and Declaration of
Trust or these By-Laws to be executed, acknowledged or verified by two
or more officers.
Section 2. Election. The Board of Trustees shall choose a
President, a Secretary and a Treasurer who shall each serve until
their successors are chosen and shall qualify.
Section 3. Other Officers. The Board of Trustees from time
to time may appoint such other officers and agents as it shall deem
advisable, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined
from time to time by the Board. The Board of Trustees from time to
time may delegate to one or more officers or agents the power to
appoint any such subordinate officers or agents and to prescribe the
respective rights, terms of office, authorities and duties.
Section 4. Compensation. The salaries or other
compensation of all officers and agents of the Trust shall be fixed by
the Board of Trustees, except that the Board of Trustees may delegate
to any person or group of persons the power to fix the salary or other
compensation of any subordinate officers or agents appointed pursuant
to Section 3 of this Article V.
Section 5. Tenure. The officers of the Trust shall serve
until their successors are chosen and qualify. Any officer or agent
may be removed by the affirmative vote of a majority of the Board of
Trustees whenever, in its judgment, the best interests of the Trust
will be served thereby. Any vacancy occurring in any office of the
Trust by death, resignation, removal or otherwise shall be filled by
the Board of Trustees.
Section 6. President-Chief Operating Officer. The
President shall be the chief operating officer of the Trust; he shall
see that all orders and resolutions of the Board are carried into
effect. The President shall perform such other duties and have such
other powers as the Board of Trustees may from time to time prescribe.
In the absence or disability of the President, the most senior Vice
President shall perform the duties of the President.
Section 7. Vice-Presidents. The Vice-Presidents, in the
order of their seniority, shall in the absence or disability of the
President, perform the duties and exercise the powers of the President
and shall perform such other duties as the Board of Trustees may from
time to time prescribe.
Section 8. Secretary. The Secretary and/or an Assistant
Secretary shall attend such meetings of the Board of Trustees as the
Trustees shall determine and all meetings of the Holders and record
all the proceedings thereof and shall perform like duties for any
committee when required. The Secretary shall give, or cause to be
given, notice of meetings of the Holders and of the Board of Trustees,
and shall perform such other duties as may be prescribed by the Board
of Trustees or President, under whose supervision the Secretary shall
be.
Section 9. Assistant Secretaries. The Assistant
Secretaries, in order of their seniority, shall in the absence or
disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as the
Board of Trustees shall prescribe.
Section 10. Treasurer. The Treasurer, unless another
officer of the Trust has been so designated, shall be the chief
financial officer of the Trust. He shall be responsible for the
maintenance of its accounting records and shall render to the Board of
Trustees, at its regular meetings, or when the Board of Trustees so
requires, an account of all the Trust's financial transactions and a
report of the financial condition of the Trust.
Section 11. Controller. The Board of Trustees may
designate a Controller who shall be under the direct supervision of,
or may be the same person as, the Treasurer. He shall maintain
adequate records of all assets, liabilities and transactions of the
Trust, establish and maintain internal accounting control and, in
cooperation with the independent public accountants selected by the
Board of Trustees shall supervise internal auditing. He shall have
such further powers and duties as may be conferred upon him from time
to time by the President or the Board of Trustees.
Section 12. Assistant Treasurers. The Assistant
Treasurers, in the order of their seniority, shall in the absence or
disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties as the
Board of Trustees may from time to time prescribe.
ARTICLE VI
Net Asset Value
Section 1. Net Asset Value. The net asset value per share
of beneficial interest of each Series of the Trust shall be determined
by dividing the total current market value of the investments and
other assets belonging to each Series, less any liabilities
attributable to such Series, by the total outstanding shares of such
Series. Securities which are listed on a securities exchange for
which market quotations are available shall be valued at the last
quoted sale price of the day or, if there is no such reported sale, at
the mean between the most recent quoted bid and asked prices. Price
information on listed securities will be taken from the exchange where
the security is primarily traded. Unlisted securities for which
market quotations are readily available will be valued at the mean
between the most recent quoted bid and asked prices. The value of
other assets and securities for which no quotations are readily
available (including restricted securities) will be determined in good
faith at fair value using methods determined by the Board of Trustees.
The net asset value per share of each Series shall be
determined as of the close of the New York Stock Exchange on each day
that the Exchange is open for business, except as otherwise described
in the registration statement of the Trust filed under the Investment
Company Act of 1940.
Securities which are traded over-the-counter and on a
stock exchange may be valued according to the broadest and most
representative market for such securities. Securities may be valued
on the basis of prices provided by a pricing service when such prices
are believed to reflect the current market value of such securities.
Section 2. Fair Value. If events which materially affect
the value of the investments of any Series occur subsequent to the
close of any foreign markets, if applicable, on which securities held
by those Series are traded, the investments affected thereby will be
valued at fair value in good faith and in accordance with methods
determined by the Board of Trustees.
ARTICLE VII
Shares of Beneficial Interest
Section 1. Certificates. A certificate or certificates
which shall certify the Series of shares and the number of shares of
beneficial interest of such Series owned by a holder in the Trust will
not be issued except as the Board of Trustees may otherwise determine
from time to time. Any such certificate issued shall be signed by the
President or a Vice-President and counter-signed by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Section 2. Signature. Where a certificate is signed (1) by
a transfer agent or an assistant transfer agent or (2) by a transfer
clerk acting on behalf of the Trust and a registrar, the signature of
any such President, Vice-President, Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary may be a facsimile. In case any
officer who has signed any certificate ceases to be an officer of the
Trust before the certificate is issued, the certificate may
nevertheless be issued by the Trust with the same effect as if the
officer had not ceased to be such officer as of the date of its issue.
Section 3. Recording and Transfer without Certificates. The
Trust shall have full power to participate in any program approved by
the Board of Trustees providing for the recording and transfer of
ownership of shares of the Trust's shares of beneficial interest by
electronic or other means without the issuance of certificates.
Section 4. Lost Certificates. The Board of Trustees may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Trust alleged to
have been stolen, lost or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be
stolen, lost or destroyed, or upon other satisfactory evidence of such
loss or destruction. When authorizing such issuance of a new
certificate or certificates, the Board of Trustees may, in its
discretion and as a condition precedent to the issuance thereof,
require the owner of such stolen, lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in
such manner as it shall require and to give the Trust a bond with
sufficient surety, to the Trust to indemnify it against any loss or
claim that may be made by reason of the issuance of a new certificate.
Section 5. Registered Holders. The Trust shall be entitled
to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such
owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof,
except as otherwise provided by laws of Delaware.
Section 6. Transfer Agents and Registrars. The Board of
Trustees may, from time to time, appoint or remove transfer agents
and/or registrars of transfers of shares of beneficial interest of the
Trust, and it may appoint the same person as both transfer agent and
registrar. Upon any such appointment being made all certificates
representing shares of beneficial interest thereafter issued shall be
countersigned by one of such transfer agents or by one of such
registrars of transfers or by both and shall not be valid unless so
countersigned. If the same person shall be both transfer agent and
registrar, only countersignature by such person shall be required.
Section 7. Share Ledger. The Trust shall maintain an
original share ledger containing the names and addresses of all
Holders and the number and Series of shares held by each holder. Such
share ledger may be in written form or any other form capable of being
converted into written form within a reasonable time for visual
inspection.
Section 8. Transfers of Shares. If the shares of a Series
are transferable, upon surrender to the Trust or the Transfer Agent of
the Trust of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment, or authority to transfer,
it shall be the duty of the Trust to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the
transaction upon its books.
ARTICLE IX
General Provisions
Section 1. Dividends. With respect to dividends (including
"dividends" designated as "short" or "long" term "capital gains"
distributions to satisfy requirements of the Investment Company Act of
1940 or the Internal Revenue Code of 1986, as amended):
(a) All dividends and distributions on shares shall be
automatically reinvested solely in additional shares (or fractions
thereof) of the Series of shares of beneficial interest in respect of
which such dividends were declared at the net asset value on the
reinvestment date; provided however, a holder may elect to receive
dividends and distributions in cash to the extent provided in the
Trust's registration statement filed under the Investment Company Act
of 1940.
(b) Dividends or distributions on shares of beneficial
interest, whether payable in shares of beneficial interest or cash,
shall be paid out of earnings, surplus or other lawfully available
assets; provided that each dividend or distribution may be made wholly
or partly from any source, accompanied by a written statement clearly
indicating what portion of such payment per share is made from the
following sources:
(i) accumulated or undistributed net income, not
including profits or losses from the sale of securities or other
properties;
(ii) accumulated or undistributed net profits from the
sale of securities or other properties;
(iii) net profits from the sale of securities or other
properties during the then current fiscal year; and
(iv) paid-in surplus or other capital source.
(c) Except to the extent that the Trustees have intended
for a Series to be classified as a Partnership for federal income tax
purposes, in declaring dividends and in recognition that the one goal
of the Trust is to qualify as a "regulated investment company" under
the Internal Revenue Code of 1986, as amended, the Board of Trustees
shall be entitled to rely upon estimates made in the last two months
of the fiscal year (with the advice of the Trust's auditors) as to the
amounts of distribution necessary for this purpose; and the Board of
Trustees, acting consistently with good accounting practice and with
the express provisions of these By-Laws, may credit receipts and
charge payments to income or otherwise, as to it may seem proper.
(d) Anything in these By-Laws to the contrary
notwithstanding, the Board of Trustees may at any time declare and
distribute pro rata among the Holders of a record date fixed as above
provided, a "share dividend" out of either authorized but unissued or
treasury shares of a Series or both.
Section 2. Rights in Securities. The Board of Trustees, on
behalf of the Trust, shall have the authority to exercise all of the
rights of the Trust as owner of any securities which might be
exercised by any individual owning such securities in his own right;
including but not limited to, the rights to vote by proxy for any and
all purposes (including the right to authorize any officer or the
investment manager to execute proxies), to consent to the
reorganization, merger or consolidation of any company or to consent
to the sale, lease or mortgage of all or substantially all of the
property and assets of any company; and to exchange any of the shares
of stock of any company for the shares of stock issued therefor upon
any such reorganization, merger, consolidation, sale lease or
mortgage.
Section 3. Claims Against Series Assets. Each Series of
the Trust shall provide in any loan agreement and any other agreement
to pledge, mortgage or hypothecate any of its assets that such loan
shall be repaid solely by the Series which borrowed funds, that to the
extent such loan may be secured only by the assets of the Series which
obtained the loan, no creditor of such Series shall have any rights to
any assets of the Trust other than the specific assets which secure
such loan.
Section 4. Reports. The Trust shall furnish Holders with
reports of its financial condition as required by Section 30(d) of the
Investment Company Act of 1940 and the rules thereunder.
Section 5. Bonding of Officers and Employees. All officers
and employees of the Trust shall be bonded to such extent, and in such
manner, as may be required by law.
Section 6. Fiscal Year. Unless otherwise provided by
resolution of the Board of Trustees, the fiscal year of the Trust
shall begin July 1 and end on the last day of June.
ARTICLE X
Indemnification of Trustees and Officers
Section 1. Proceedings and Expenses. For the
purpose of this Article, "proceeding" means any threatened,
pending or completed action or proceeding, whether civil,
criminal, administrative or investigative; and "expenses"
includes all expenses and costs reasonably incurred in connection
with such proceeding and any expenses of establishing a right to
indemnification under this Article.
Section 2. Indemnification. The Trust may indemnify
any Trustee or officer of the Trust who was or is a party or is
threatened to be made a party to any proceeding or claim by
reason of the fact that such person is a Trustee or officer of
the Trust, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with
such proceeding, if it is determined that such person acted in
good faith and reasonably believed: (a) that his conduct was in
the Trust's best interests and (b) in the case of a criminal
proceeding, that he had no reasonable cause to believe his
conduct was unlawful. The termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not of itself create a
presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in the best
interests of the Trust or that the person had reasonable cause to
believe that his conduct was unlawful.
Section 3. Exclusion of Indemnification. Notwith-
standing any provision to the contrary contained herein, the
Trust shall not indemnify any Trustee or officer for any
liability arising by reason of willful misfeasance, bad faith,
gross negligence, or the reckless disregard of the duties
involved in the conduct of such person's office, or in respect of
any claim or proceeding as to which such person shall have been
adjudged to be liable on the basis that personal benefit was
improperly received by him, whether or not the benefit resulted
from an action taken in the person's official capacity.
Section 4. Successful Defense. Subject to Section 3
of this Article, to the extent that a Trustee or officer has been
successful on the merits in defense of any proceeding referred to
in Section 2 of this Article or in defense of any claim, issue or
matter therein, before the court or other body before whom the
proceeding was brought, such person shall be indemnified against
expenses actually and reasonably incurred by him in connection
therewith.
Section 5. Required Approval. Any indemnification
under this Article may be made by the Trust only if authorized in
the specific case on a determination that indemnification of the
indemnitee is proper hereunder by:
(a) A majority vote of Trustees who are not parties to
the proceeding or subject to the claim or if there
are no such Trustees;
(b) By a written opinion of independent legal counsel.
Section 6. Advance of Expenses. Expenses incurred in
defending any proceeding may be advanced by the Trust before the
final disposition of the proceeding upon (a) receipt of a written
undertaking by or on behalf of an officer or Trustee, such
undertaking being an unlimited general obligation to repay the
amount of the advance if it is ultimately determined that he or
she is not entitled to indemnification hereunder. Authorizations
of payments under this Section must be made in the manner
specified in Section 5 of this Article.
Section 7. Insurance. The Trust may purchase
insurance for any liability that may be incurred by the Trust,
the Trustees, officers and agents of the Trust.
ARTICLE XI
Amendments
Section 1. These By-Laws may be altered or repealed
at any Regular or Special Meeting of the Board of Trustees.
Exhibit 24(b)(5)(i)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February, 1997, by and
between KIEWIT INVESTMENT TRUST, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit Money
Market Series of the Fund (the "Series"), to continuously review,
supervise and administer the Series' investment program, to
determine in its discretion 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.
2. Series Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Series 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 the Manager
will not be deemed to have acted unlawfully, or to have breached
a fiduciary duty to the Fund or in respect of the Series, or be
in breach of any obligation owing to the Fund or in respect of
the Series under this Agreement, or otherwise, solely by reason
of its having caused the Series to pay a member of a securities
exchange, a broker or a dealer a commission for effecting a
securities transaction for the Series in excess of the amount of
commission another member of an exchange, broker or dealer would
have charged if the Manager determines in good faith that the
commission paid was reasonable in relation to the brokerage or
research services provided by such member, broker or dealer,
viewed in terms of that particular transaction or the Manager's
overall responsibilities with respect to its accounts, including
the Fund, as to which it exercises investment discretion. 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.
3. Compensation of the Manager
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 .20 percent of the daily average net assets of the Series
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
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.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
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.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
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.
9. Duration and Termination
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 l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
KIEWIT INVESTMENT TRUST
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
Exhibit NO. 24(b)(5)(ii)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February, 1997, by and
between KIEWIT INVESTMENT TRUST, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit Short-
Term Government Series of the Fund (the "Series"), to
continuously review, supervise and administer the Series'
investment program, to determine in its discretion 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.
2. Series Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Series 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 the Manager
will not be deemed to have acted unlawfully, or to have breached
a fiduciary duty to the Fund or in respect of the Series, or be
in breach of any obligation owing to the Fund or in respect of
the Series under this Agreement, or otherwise, solely by reason
of its having caused the Series to pay a member of a securities
exchange, a broker or a dealer a commission for effecting a
securities transaction for the Series in excess of the amount of
commission another member of an exchange, broker or dealer would
have charged if the Manager determines in good faith that the
commission paid was reasonable in relation to the brokerage or
research services provided by such member, broker or dealer,
viewed in terms of that particular transaction or the Manager's
overall responsibilities with respect to its accounts, including
the Fund, as to which it exercises investment discretion. 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.
3. Compensation of the Manager
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 .30 percent of the daily average net assets of the Series
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
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.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
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.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
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.
9. Duration and Termination
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 l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
KIEWIT INVESTMENT TRUST
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
Exhibit No. 24(b)(5)(iii)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February 1997, by and
between KIEWIT INVESTMENT TRUST, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit
Intermediate-Term Bond Series of the Fund (the "Series"), to
continuously review, supervise and administer the Series'
investment program, to determine in its discretion 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.
2. Series Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Series 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 the Manager
will not be deemed to have acted unlawfully, or to have breached
a fiduciary duty to the Fund or in respect of the Series, or be
in breach of any obligation owing to the Fund or in respect of
the Series under this Agreement, or otherwise, solely by reason
of its having caused the Series to pay a member of a securities
exchange, a broker or a dealer a commission for effecting a
securities transaction for the Series in excess of the amount of
commission another member of an exchange, broker or dealer would
have charged if the Manager determines in good faith that the
commission paid was reasonable in relation to the brokerage or
research services provided by such member, broker or dealer,
viewed in terms of that particular transaction or the Manager's
overall responsibilities with respect to its accounts, including
the Fund, as to which it exercises investment discretion. 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.
3. Compensation of the Manager
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 .40 percent of the daily average net assets of the Series
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
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.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
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.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
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.
9. Duration and Termination
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 l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
KIEWIT INVESTMENT TRUST
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
Exhibit No. 24(b)(5)(iv)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February, 1997, by and
between KIEWIT INVESTMENT TRUST, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit Tax-
Exempt Series of the Fund (the "Series"), to continuously review,
supervise and administer the Series' investment program, to
determine in its discretion 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.
2. Series Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Series 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 the Manager
will not be deemed to have acted unlawfully, or to have breached
a fiduciary duty to the Fund or in respect of the Series, or be
in breach of any obligation owing to the Fund or in respect of
the Series under this Agreement, or otherwise, solely by reason
of its having caused the Series to pay a member of a securities
exchange, a broker or a dealer a commission for effecting a
securities transaction for the Series in excess of the amount of
commission another member of an exchange, broker or dealer would
have charged if the Manager determines in good faith that the
commission paid was reasonable in relation to the brokerage or
research services provided by such member, broker or dealer,
viewed in terms of that particular transaction or the Manager's
overall responsibilities with respect to its accounts, including
the Fund, as to which it exercises investment discretion. 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.
3. Compensation of the Manager
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 .40 percent of the daily average net assets of the Series
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
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.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
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.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
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.
9. Duration and Termination
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 l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
KIEWIT INVESTMENT TRUST
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
Exhibit No. 24(b)(v)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February, 1997, by and
between KIEWIT MUTUAL FUND, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit Equity
Portfolio of the Fund (the "Portfolio"), to continuously review,
supervise and administer the Portfolio's investment program, to
determine in its discretion the securities to be purchased or
sold and the portion of the Portfolio's 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 Portfolio's 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
Portfolio. 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.
2. Portfolio Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Portfolio 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
the Manager will not be deemed to have acted unlawfully, or to
have breached a fiduciary duty to the Fund or in respect of the
Portfolio, or be in breach of any obligation owing to the Fund or
in respect of the Portfolio under this Agreement, or otherwise,
solely by reason of its having caused the Portfolio to pay a
member of a securities exchange, a broker or a dealer a
commission for effecting a securities transaction for the
Portfolio in excess of the amount of commission another member of
an exchange, broker or dealer would have charged if the Manager
determines in good faith that the commission paid was reasonable
in relation to the brokerage or research services provided by
such member, broker or dealer, viewed in terms of that particular
transaction or the Manager's overall responsibilities with
respect to its accounts, including the Fund, as to which it
exercises investment discretion. The Manager will promptly
communicate to the officers and directors of the Fund such
information relating to transactions for the Portfolio as they
may reasonably request.
3. Compensation of the Manager
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 .70 percent of the daily average net assets of the Portfolio
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
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 Portfolios of the Fund proportionate to their
respective utilization thereof.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
The services of the Manager to the Fund or in respect
of the Portfolio, 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 Portfolio, 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.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
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.
9. Duration and Termination
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 Portfolio; 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
Portfolio.
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 Portfolio, 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 l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
KIEWIT MUTUAL FUND
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
Exhibit No. 24(b)(5)(vi)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February, 1997, by and
between KIEWIT INVESTMENT TRUST, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit
Government Money Market Series of the Fund (the "Series"), to
continuously review, supervise and administer the Series'
investment program, to determine in its discretion 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.
2. Series Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Series 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 the Manager
will not be deemed to have acted unlawfully, or to have breached
a fiduciary duty to the Fund or in respect of the Series, or be
in breach of any obligation owing to the Fund or in respect of
the Series under this Agreement, or otherwise, solely by reason
of its having caused the Series to pay a member of a securities
exchange, a broker or a dealer a commission for effecting a
securities transaction for the Series in excess of the amount of
commission another member of an exchange, broker or dealer would
have charged if the Manager determines in good faith that the
commission paid was reasonable in relation to the brokerage or
research services provided by such member, broker or dealer,
viewed in terms of that particular transaction or the Manager's
overall responsibilities with respect to its accounts, including
the Fund, as to which it exercises investment discretion. 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.
3. Compensation of the Manager
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 .20 percent of the daily average net assets of the Series
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
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.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
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.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
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.
9. Duration and Termination
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 l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
KIEWIT INVESTMENT TRUST
By:/s/ Ann C. McCulloch
Ann C. McCulloch
President
Exhibit No. 24(b)(8)
CUSTODY AGREEMENT
This Agreement is made as of the 19th day of February, 1997,
between Kiewit Investment Trust, a business trust organized under
the laws of Delaware (the "Trust"), having its principal place of
business in Wilmington, Delaware, and Wilmington Trust Company, a
Delaware corporation (the "Custodian"), having its principal
place of business in Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company and has distinct series of shares
of beneficial interest (each series, a "Fund" and collectively,
the "Funds"), which presently include six Funds initially
identified on Schedule A;
WHEREAS, each unit or share of beneficial interest
(collectively, "Shares") of a Fund represents an undivided
interest in the assets of that Fund, subject to the liabilities
of that Fund, as more fully described in the Declaration of Trust
pursuant to which the Trust is created and governed;
WHEREAS, the Trust desires to employ the Custodian to
provide custody services; and
WHEREAS, the Custodian is willing to furnish custody
services to the Trust on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and intending to be legally bound,
the parties agree as follows:
I. Employment of Custodian; Property of the Trust to be Held by
the Custodian
The Trust hereby employs the Custodian as the custodian of
its assets. The Trust agrees to deliver to the Custodian
substantially all securities and cash owned by it on behalf of
the Fund(s) from time to time, and substantially all income,
principal, capital distributions or other payments received by it
with respect to such securities, and the cash consideration
received for the issuance and sale of Shares of the Trust from
time to time. The Custodian will not be responsible for any
property of the Trust not delivered to the Custodian.
II. Duties of the Custodian with Respect to Property of the
Trust Held by the Custodian
A. Holding Securities
The Custodian will hold, earmark and physically segregate
for the account of each Fund all non-cash property, including all
securities owned by the Trust on behalf of the Fund(s), other
than securities maintained pursuant to Article II, Section J
hereof in a clearing agency which acts as a securities depository
or in an authorized book-entry system authorized by the U.S.
Department of the Treasury, collectively referred to herein as a
``Securities System.''
B. Delivery of Securities
The Custodian will deliver securities held by the Custodian
or in a Securities System account only upon receipt of proper
instructions, which may be continuing instructions, and only in
the following cases:
1. Upon sale of such securities for the account of each
Fund and receipt of payment therefor;
2. Upon receipt of payment in connection with any
repurchase agreement related to such securities entered
into by the Trust with respect to any Fund;
3. In the case of a sale effected through a Securities
System, in accordance with the provisions of Article
II, Section J hereof;
4. To the depository agent in connection with tenders or
other similar offers for securities of each Fund;
5. To the issuer thereof, or its agent, when such
securities are called, redeemed, retired or otherwise
become payable; provided that, in any such case, the
cash or other consideration is to be delivered to the
Custodian;
6. To the issuer thereof, or its agent, for registration
or re-registration pursuant to the provisions of
Article II, Section C hereof; or for exchange for a
different number of certificates or other evidence
representing the same aggregate face amount or number
of units; provided that, in any such case, the new
securities are to be delivered to the Custodian;
7. To the broker selling such securities for examination
in accordance with the ``street delivery'' custom;
provided that the Custodian will maintain procedures to
ensure prompt return to the Custodian by the broker in
the event the broker elects not to accept such
securities;
8. For exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization, reorganization
or readjustment of the securities of the issuer or
pursuant to provisions for conversion contained in such
securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and
cash, if any, are to be delivered to the Custodian;
9. In the case of warrants, rights or similar securities,
the surrender thereof in the exercise of such warrants,
rights or similar securities or the surrender of
interim receipts or temporary securities for definitive
securities; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the
Custodian;
10. For delivery in connection with any loans of securities
made by the Trust on behalf of any Fund, but only
against receipt of adequate collateral, as agreed upon
from time to time by the Custodian and the Trust, which
may be in the form of cash or obligations issued by the
United States government, its agencies or
instrumentalities;
11. For delivery as security in connection with any
borrowing by the Trust on behalf of any Fund requiring
a pledge of assets by the Trust on behalf of that Fund
against receipt of amounts borrowed;
12. Upon receipt of instructions from the transfer agent
for the Trust (the "Transfer Agent") for delivery to
the Transfer Agent or to holders of Shares in
connection with distributions in kind in satisfaction
of requests by holders of Shares for repurchase or
redemption; and
13. For any other proper corporate purposes, but only upon
receipt of, in addition to proper instructions, a
certified copy of a resolution of the Board of Trustees
signed by an officer of the Trust and certified by the
Secretary or an Assistant Secretary, specifying the
securities to be delivered, setting forth the purpose
for which such delivery is to be made, declaring such
purposes to be proper corporate purposes, and naming
the persons to whom delivery of such securities will be
made.
C. Registration of Securities
Securities held by the Custodian (other than bearer
securities) will be registered in the name of the Trust on behalf
of the Fund(s), or in the name of any nominee of the Trust, the
Custodian or any Securities System, or in the name or nominee
name of any agent or sub-custodian appointed pursuant to Article
II, Section I hereof, provided that the Custodian will maintain
a mechanism for identifying all securities belonging to each
Fund, wherever held or registered. All securities accepted by
the Custodian on behalf of the Trust for the Fund(s) hereunder
will be in ``street name'' or other good delivery form.
D. Bank Accounts
If requested by the Trust, the Custodian will open and
maintain a separate bank account or accounts in the name of the
Trust, subject only to draft or order by the Custodian acting
pursuant to the terms of this Agreement, and will hold in such
account or accounts, subject to the provisions hereof, all cash
received by it from or for the account of the Fund(s), other than
cash maintained by the Trust in a bank account established and
used in accordance with Rule 17f-3 under the 1940 Act.
E. Payment for Shares
The Custodian will receive from the distributor of the
Shares of the Fund(s) or from the Transfer Agent and deposit into
each Fund's custody account payments received for Shares of such
Fund issued or sold from time to time by the Trust. The
Custodian will provide timely notification to the Trust and the
Transfer Agent of any receipt by it of cash payments for Shares
of the Fund(s).
F. Collection of Income and Other Payments
The Custodian will collect on a timely basis all income and
other payments with respect to securities held hereunder to which
the Trust and each of the Fund(s) will be entitled by law or
pursuant to custom in the securities business, and will credit
such income and other payments, as collected, to each Fund's
custody account.
G. Payment of Trust Moneys
Upon receipt of proper instructions, which may be continuing
instructions, the Custodian will pay out moneys of the Trust on
behalf of the Fund(s) in the following cases only:
1. Upon the purchase of securities for the account of each
Fund, but only (a) against the delivery of such
securities to the Custodian (or any bank, banking firm
or trust company doing business in the United States or
abroad which is qualified under the 1940 Act to act as
a custodian and has been designated by the Trust or by
the Custodian as its agent for this purpose); (b) in
the case of a purchase effected through a Securities
System, in accordance with the conditions set forth in
Article II, Section J hereof or; (c) in the case of
repurchase agreements entered into between the Trust on
behalf of the Fund and the Custodian, or another bank,
(i) against delivery of securities either in
certificate form or through an entry crediting the
Custodian's account at the Federal Reserve Bank with
such securities and with an indication on the books of
the Custodian that such securities are held for the
benefit of the Fund, and (ii) against delivery of the
receipt evidencing purchase by the Trust on behalf of
the Fund of securities owned by the Custodian or other
bank along with written evidence of the agreement by
the Custodian or other bank to repurchase such
securities from the Trust on behalf of the Fund;
2. In connection with conversion, exchange or surrender of
securities owned by the Trust on behalf of any Fund as
set forth in Article II, Section B hereof;
3. For the redemption or repurchase of Shares as set forth
in Article II, Section H hereof;
4. For the payment of any expense or liability incurred by
the Trust with respect to the Fund(s), including, but
not limited to, the following payments for the account
of the Fund(s): interest, dividend disbursements,
taxes, trade association dues, advisory,
administration, accounting, transfer agent and legal
fees, and operating expenses allocated to the Trust or
the Fund(s) whether or not such expenses are to be in
whole or part capitalized or treated as deferred
expenses;
5. For the payment of any dividend declared on behalf of
the Fund(s) pursuant to the governing documents of the
Trust; and
6. For any other proper corporate purposes, but only upon
receipt of, in addition to proper instructions, a
certified copy of a resolution of the Board of Trustees
of the Trust signed by an officer of the Trust and
certified by its Secretary or an Assistant Secretary,
specifying the amount of such payment, setting forth
the purpose for which such payment is to be made,
declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom such
payment is to be made.
H. Payments for Repurchase or Redemptions of Shares of the
Fund(s)
From such funds as may be available, the Custodian will,
upon receipt of instructions from the Transfer Agent, make funds
available for payment to holders of Shares of the Fund(s) who
have delivered to the Transfer Agent a request for redemption or
repurchase of their Shares. In connection with the redemption or
repurchase of Shares, the Custodian is authorized upon receipt of
instructions from the Transfer Agent to wire funds to a
commercial bank designated by the redeeming shareholders.
I. Appointment of Agents
The Custodian may at any time in its discretion appoint, but
only in accordance with an applicable vote by the Board of
Trustees of the Trust, any bank or trust company, which is
qualified under the 1940 Act to act as a custodian, as its agent
or sub-custodian to carry out such of the provisions of this
Article II as the Custodian may from time to time direct;
provided that the appointment of any such agent or sub-custodian
will not relieve the Custodian of any of its responsibilities or
liabilities hereunder. The Custodian is hereby authorized to
deposit, arrange for deposit and/or maintain foreign securities
owned by the Trust on behalf of the Fund(s) with the Custodian's
agent Bankers Trust Company or with the subcustodians or agents
of the Custodian's agent.
J. Deposit of Trust Assets in Securities Systems
The Custodian may deposit and/or maintain securities owned
by the Trust on behalf of the Fund(s) in a clearing agency
registered with the Securities and Exchange Commission (the
"SEC") under Section 17A of the Securities Exchange Act of 1934,
which acts as a securities depository, or in the book-entry
system authorized by the U.S. Department of the Treasury and
certain federal agencies (collectively referred to herein as a
``Securities System'') in accordance with applicable Federal
Reserve Board and SEC rules and regulations, if any, and subject
to the following provisions:
1. The Custodian may keep securities owned by the Trust on
behalf of the Fund(s) in a Securities System provided
that such securities are represented in an account
("Account") of the Custodian in the Securities System
which will not include any assets of the Custodian
other than assets held as a fiduciary, custodian, or
otherwise for customers;
2. The records of the Custodian with respect to securities
owned by the Trust on behalf of the Fund(s) which are
maintained in a Securities System will identify by
book-entry those securities belonging to the Fund(s);
3. The Custodian will pay for securities purchased for the
account of the Fund(s) upon (i) receipt of advice from
the Securities System that such securities have been
transferred to the Account, and (ii) the making of an
entry on the records of the Custodian to reflect such
payment and transfer for the account of the Fund(s).
The Custodian will transfer securities sold for the
account of the Fund(s) upon (i) receipt of advice from
the Securities System that payment for such securities
has been transferred to the Account, and (ii) the
making of an entry on the records of the Custodian to
reflect such transfer and payment for the account of
the Fund(s). The Custodian will furnish the Trust a
monthly account statement showing confirmation of each
transfer to or from the account of the Fund(s) and each
day's transactions in the Securities System for the
account of the Fund(s);
4. The book-entry system of the Federal Reserve System
authorized by the U.S. Department of the Treasury and
the Depository Trust Company, a clearing agency
registered with the SEC, each are hereby specifically
approved as a Securities System, provided that any
changes in these arrangements shall be subject to the
approval of the Board of Trustees of the Trust; and
5. The Custodian will be liable to the Trust on behalf of
any Fund for any direct loss or damage to the Trust on
behalf of any Fund resulting from use of the Securities
System to the extent caused by the gross negligence,
misfeasance or misconduct of the Custodian or any of
its agents or of any of its or their employees. In no
event will the Custodian be liable for any indirect,
special, consequential or punitive damages.
K. Segregated Accounts for Futures Commission Merchants
The Custodian may enter into separate custodial agreements
with various Futures Commission Merchants ("FCM's") which the
Trust uses (each an "FCM agreement"), pursuant to which the
Trust's margin deposits made on behalf of the Fund(s) in certain
transactions involving futures contracts and options on futures
contracts will be held by the Custodian in accounts (each an "FCM
account") subject to the disposition by the FCM involved in such
contracts in accordance with the customer contract between FCM
and the Trust ("FCM contract"), SEC rules governing such
segregated accounts, Commodities Futures Trading Commission
("CFTC") rules and the rules of applicable securities or
commodities exchanges. Such custodial agreements will only be
entered into upon receipt of written instructions from the Trust
which state that (a) an agreement between the FCM and the Trust
has been entered into, and (b) the Trust is in compliance with
all the rules and regulations of the CFTC. Transfers of initial
margin will be made into an FCM account only upon written
instructions; transfers of premium and variation margin may be
made into an FCM account pursuant to oral instructions.
Transfers of funds from an FCM account to the FCM for which the
Custodian holds such an account may only occur upon certification
by the FCM to the Custodian that pursuant to the FCM agreement
and the FCM contract, all conditions precedent to its right to
give the Custodian such instructions have been satisfied.
L. Ownership Certificates for Tax Purposes
The Custodian will execute ownership and other certificates
and affidavits for all federal and state tax purposes in
connection with receipt of income or other payments with respect
to securities of the Fund(s) held by it and in connection with
transfers of securities of the Fund(s).
M. Proxies
The Custodian will cause to be promptly executed by the
registered holder of such securities, if the securities are
registered otherwise than in the name of the Trust on behalf of
the Fund(s) or a nominee of the Trust, all proxies, without
indication of the manner in which such proxies are to be voted,
and will promptly deliver to the Trust's investment advisor for
the Fund(s) (the "Advisor") such proxies, all proxy soliciting
materials and all notices relating to such securities.
N. Communications Relating to Securities of the Fund(s)
The Custodian will transmit promptly to the Advisor of that
Fund all written information (including, without limitation,
pendency of calls and maturities of securities and expirations of
rights in connection therewith) received by the Custodian from
issuers of the securities being held for the Fund(s). With
respect to tender or exchange offers, the Custodian will transmit
promptly to the Advisor all written information received by the
Custodian from issuers of the securities whose tender or exchange
is sought and from the party (or its agents) making the tender or
exchange offer. If the Advisor desires to take action with
respect to any tender offer, exchange offer or any other similar
transaction, the Advisor will notify the Custodian at least five
business days prior to the date on which the Custodian is to take
such action.
O. Proper Instructions
``Proper Instructions'' as used herein mean a writing signed
or initialed by one or more person or persons in such manner as
the Board of Trustees will have authorized from time to time.
Each writing will set forth the transaction involved, including a
specific statement of the purpose for which such action is
requested. Oral instructions will be considered proper
instructions if the Custodian reasonably believes them to have
been given by a person authorized to give such instructions with
respect to the transaction involved. The Trust will cause all
oral instructions to be confirmed promptly in writing. Upon
receipt of a certificate of the Secretary or an Assistant
Secretary as to the authorization by the Board of Trustees of the
Trust accompanied by a detailed description of procedures
approved by the Board of Trustees, proper instructions may
include communications effected directly between electro-
mechanical or electronic devices provided that the Board of
Trustees and the Custodian are satisfied that such procedures
afford adequate safeguards for the assets of the Trust.
P. Actions Permitted Without Express Authority
The Custodian may, in its discretion, without express
authority from the Trust:
1. make payments to itself or others for minor expenses of
handling securities or other similar items relating to
its duties under this Agreement, provided that all such
payments will be accounted for to the Trust;
2. surrender securities in temporary form for securities
in definitive form;
3. endorse for collection, in the name of the Trust on
behalf of the Fund(s), checks, drafts and other
negotiable instruments; and
4. in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution,
purchase, transfer and other dealings with the
securities and property of the Trust, except as
otherwise directed by the Trust or the Board of
Trustees of the Trust.
Q. Evidence of Authority
The Custodian will be protected in acting upon any
instruction, notice, request, consent, certificate or other
instrument or paper reasonably believed by it to be genuine and
to have been properly executed by or on behalf of the Trust. The
Custodian may receive and accept a certified copy of a vote of
the Board of Trustees of the Trust as conclusive evidence (a) of
the authority of any person to act in accordance with such vote,
or (b) of any determination or of any action by the Board of
Trustees as described in such vote, and such vote may be
considered as in full force and effect until receipt by the
Custodian of written notice to the contrary.
III. Duties of Custodian with Respect to Books of Account
The Custodian will cooperate with and supply to the entity
or entities appointed to keep the books of account of the Trust
such information in the possession of the Custodian as is
reasonably necessary to the maintenance of the books of account
of the Trust.
IV. Records
The Custodian will create and maintain all records relating
to its activities and obligations under this Agreement in such
manner as will meet the obligations of the Trust under the 1940
Act, including, without limitation, Section 31 thereof and Rules
31a-1 and 31a-2 thereunder. All such records will be property of
the Trust and will at all times during the regular business hours
of the Custodian be open for inspection by duly authorized
officers, employees or agents of the Trust and employees and
agents of the SEC. The Custodian will, upon request, provide the
Trust with a tabulation of securities held by the Custodian on
behalf of the Fund(s), and will, upon request, and for such
compensation as will be agreed upon between the Trust and the
Custodian, include certificate numbers in such tabulations.
V. Opinion of Trust's Independent Accountant
The Custodian will take all reasonable action, as the Trust
may from time to time request, to obtain from year to year
favorable opinions from the Trust's independent accountants with
respect to its activities hereunder in connection with the
preparation of the Trust's Form N-1A, Form N-SAR or other annual
or semiannual reports to the SEC and with respect to any other
requirements of the SEC.
VI. Reports to Trust by Auditors
The Custodian will provide the Trust, at such times as the
Trust may reasonably request, with reports by its internal or
independent auditors on the accounting system, internal
accounting controls and procedures for safeguarding securities,
including reports available on securities deposited and/or
maintained in a Securities System, relating to the services
provided by the Custodian under this Agreement. Such reports
will be of sufficient scope and in sufficient detail as may
reasonably be required by the Trust to provide reasonable
assurance that any material inadequacies would be disclosed, will
state in detail material inadequacies disclosed by such
examination, and if there are no such inadequacies, will so
state.
VII. Compensation of Custodian
For the normal services the Custodian provides under this
Custody Agreement, the Custodian will be entitled to reasonable
compensation as agreed to between the Trust and the Custodian
from time to time. Until agreed otherwise, the compensation will
be as set forth on Schedule A attached hereto and made part
hereof, as such Schedule may be amended from time to time. The
fee set forth in Schedule A hereto is subject to an annual review
and adjustment process. In the event the Custodian provides any
extraordinary services hereunder, it will be entitled to
additional reasonable compensation.
VIII. Responsibility of Custodian/Indemnification
So long as and to the extent that it has exercised
reasonable care, the Custodian will not be responsible for the
title, validity or genuineness of any property or evidence of
title thereto received by it or delivered by it pursuant to this
Agreement and will be held harmless in acting upon any notice,
request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party
or parties.
The Custodian will be entitled to rely on and may act upon
advice of counsel (who may be counsel for the Trust) on all
matters, and will be without liability for any action reasonably
taken or omitted pursuant to such advice.
The Custodian will exercise reasonable care in carrying out
the provisions of this Agreement and shall be without liability
for any action taken or omitted by it in good faith and without
negligence. The Trust will indemnify the Custodian and hold it
harmless from and against all claims, liabilities, and expenses
(including attorneys' fees) which the Custodian may suffer or
incur on account of being Custodian hereunder, except to the
extent such claims, liabilities and expenses are caused by the
Custodian's own gross negligence or bad faith. Notwithstanding
the foregoing, nothing contained in this paragraph is intended to
nor will it be construed to modify the standards of care and
responsibility set forth in Article II, Section I hereof with
respect to sub-custodians and in Article II, Section J(5) hereof
with respect to the Securities System.
If the Trust requires the Custodian to take any action,
which involves the payment of money or which may, in the
reasonable opinion of the Custodian, result in liability or
expense to the Custodian or its nominee, the Trust, as a
prerequisite to requiring the Custodian to take such action, will
provide indemnity to the Custodian in an amount and form
satisfactory to it.
IX. Effective Period; Termination; Amendment
This Agreement will become effective as of the date hereof
and remain effective until terminated as provided herein. This
Agreement may be amended at any time only by written instrument
signed by both parties. This Agreement may be terminated at any
time on ninety (90) days' written notice by either party;
provided that the Trust will not amend or terminate the Agreement
in contravention of any applicable federal or state regulations,
or any provision of the governing documents of the Trust, and
further provided, that the Trust may at any time by action of its
Board of Trustees immediately terminate this Agreement in the
event of the appointment of a conservator or receiver for the
Custodian by the applicable federal regulator or upon the
happening of a like event at the direction of an appropriate
regulatory agency or court of competent jurisdiction. Upon
termination of this Agreement, the Trust will pay to the
Custodian any fees incurred as a result of the termination
transfer of assets, and reimburse the Custodian for all costs,
expenses and disbursements that are due as of the date of such
termination.
X. Successor Custodian
If a successor custodian is appointed by the Board of
Trustees of the Trust, the Custodian will, upon termination,
deliver to such successor custodian at the office of the
Custodian, duly endorsed and in the form for transfer, all
securities and other assets of the Trust then held by it
hereunder. The Custodian will also deliver to such successor
custodian copies of such books and records relating to the Trust
as the Trust and Custodian may mutually agree.
In the event that no written order designating a successor
custodian or certified copy of a vote of the Board of Trustees
will have been delivered to the Custodian on or before the date
when such termination will become effective, then the Custodian
will have the right to deliver to a bank or trust company of its
own selection, doing business in the state in which either the
principal place of business of the Trust or the Custodian is
located and having an aggregate capital, surplus, and undivided
profits of not less than $25,000,000, all securities, funds and
other properties held by the Custodian under this Agreement.
Thereafter, such bank or trust company will be the successor of
the Custodian under this Agreement.
In the event that securities, funds and other properties
remain in the possession of the Custodian after the date of
termination hereof owing to failure of the Trust to procure the
certified copy of vote referred to, or of the Board of Trustees
to appoint a successor custodian, the Custodian will be entitled
to fair compensation for its services during such period as the
Custodian and retain possession of such securities, funds and
other properties and the provisions of this Agreement relating to
the duties and obligations of the Custodian will remain in full
force and effect.
XI. Interpretive and Additional Provisions
In connection with the operation of this Agreement, the
Custodian and the Trust may from time to time agree on such
provisions interpretive of, or in addition to, the provisions of
this Agreement as may in their joint opinion be consistent with
the general tenor of this Agreement. Any such interpretive or
additional provisions will be in writing signed by both parties,
provided that no such interpretive or additional provisions will
contravene any applicable federal or state regulations or any
provision of the governing documents of the Trust. No
interpretive or additional provisions made as provided in the
preceding sentence will be deemed to be an amendment of this
Agreement.
XII. Delaware Law to Apply
This Agreement will be deemed to be a contract made in
Delaware and governed by the internal laws of the State of
Delaware without giving effect to the principles of conflicts of
law thereof. If any provision of this Agreement will be held or
made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement will not be affected thereby. This
Agreement will be binding and will inure to the benefit of the
parties hereto and their respective successors.
IN WITNESS WHEREOF, each of the parties has caused this
instrument to be executed in its name and on behalf by its duly
authorized representative and its seal to be hereunder affixed as
of the date first written above.
[SEAL] KIEWIT INVESTMENT TRUST
By:/s/ Ann C. McCulloch
Ann C. McCulloch, President
[SEAL] WILMINGTON TRUST COMPANY
By: ____________________________
(___________), Vice President
SCHEDULE A
KIEWIT INVESTMENT TRUST
FEE SCHEDULE
For the services Custodian provides under this Custody
Agreement, the Trust, on behalf of the Fund(s) listed below,
agrees to pay to the Custodian a fee, payable monthly, expressed
as follows:
Name of Fund(s) FEE SCHEDULE
Kiewit Money Market Series An annual fee based upon the
average daily net asset value
as follows:
.009% on the first $200
million per portfolio;
Kiewit Rated Money Market
Series plus .0075% on the assets over
$200 million per portfolio,
Kiewit Short-Term Government
Series subject to a minimum fee of
$500 per month per portfolio,
Kiewit Intermediate-Term Bond
Series
Kiewit Tax Exempt Series
Kiewit Equity Series plus, $12 per purchase, sale
or maturity of a portfolio
security, except those
requiring physical delivery,
which will be charged at $50
per purchase, sale or
maturity,
plus, $7 for each incoming
wire of funds and $12 for each
outgoing wire of funds,
plus any out-of-pocket
expenses.
Exhibit 24(b)(9)(i)
KIEWIT INVESTMENT TRUST
RODNEY SQUARE MANAGEMENT CORPORATION
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT made this 19th day February,
1997, by and between Kiewit Investment Trust, a Delaware business
trust (the "Trust"), and Rodney Square Management Corporation, a
corporation organized under the laws of the State of Delaware
("Rodney Square"), having its principal place of business in
Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company and issues shares of beneficial
interest, par value $0.01 per share ("Shares"), corresponding to
one or more separate and distinct series (individually, a
"Series", and collectively, the "Series");
WHEREAS, each share of a Series represents an undivided
interest in the assets, subject to the liabilities, allocated to
that Series, and each Series has a separate investment objective
and separate investment policies;
WHEREAS, at the present time, the Trust has six Series,
Kiewit Money Market Series, Kiewit Government Money Market
Series, Kiewit Short-Term Government Series, Kiewit
Intermediate-Term Bond Series, Kiewit Tax-Exempt Series and
Kiewit Equity Series.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the Trust and Rodney Square agree as
follows:
1. Appointments. The Trust hereby appoints Rodney Square
as transfer agent, registrar and disbursing agent in connection
with any distributions; for each Series of Shares of the Trust,
each such appointment to take and remain in effect as hereinafter
provided. Rodney Square shall act as such and perform its
obligations thereof upon the terms and conditions hereafter set
forth, and in accordance with the principles of principal and
agent as enunciated by the common law.
2. Documents. The Trust has furnished Rodney Square with
copies properly certified or authenticated of each of the
following:
a. Resolutions of the Trust's Board of Trustees
authorizing the appointment of Rodney Square to provide certain
transfer agent services to the Trust and approving this
Agreement;
b. Schedule B identifying and containing the signatures of
the Trust's officers and other persons authorized ("Authorized
Persons") to sign "Written Instructions" (as hereinafter defined)
on behalf of the Trust;
c. The Trust's Certificate of Trust filed with the
Secretary of the State of Delaware on January 23, 1997 and all
amendments thereto and restatements thereof;
d. The Trust's Agreement and Declaration of Trust and all
amendments thereto and restatements thereof;
e. The Trust's By-Laws and all amendments thereto and
restatements thereof (such By-Laws, as presently in effect and as
they shall from time to time be amended or restated, are herein
called "By-Laws");
f. The Accounting Services Agreement between the Trust and
Rodney Square dated February 19, 1997;
g. The Custodian Agreement between the Trust and
Wilmington Trust Company (the "Custodian") dated February 19,
1997;
h. The Administration Agreement between the Trust and
Rodney Square dated February 19, 1997;
i. The Trust's Notification of Registration filed pursuant
to Section 8(a) of the 1940 Act filed with the Securities and
Exchange Commission ("SEC") on July 25, 1994;
j. The Trust's Registration Statement on Form N-1A under
the 1940 Act, as filed with the SEC, and all amendments thereto;
and
k. If required, a copy of either (i) a filed notice of
eligibility to claim the exclusion from the definition of
"commodity pool operator" contained in Section 2(a)(1)(A) of the
Commodity Exchange Act ("CEA") that is provided in Rule 4.5 under
the CEA, together with all supplements as are required by the
Commodity Futures Trading Commission ("CFTC"), or (ii) a letter
which has been granted the Trust by the CFTC which states that
the Trust will not be treated as a "pool" as defined in Section
4.10(d) of the CFTC's General Regulations, or (iii) a letter
which has been granted the Trust by the CFTC which states that
CFTC will not take any enforcement action if the Trust does not
register as a "commodity pool operator."
The Trust will furnish Rodney Square from time to time with
copies, properly certified or authenticated, of all additions,
amendments or supplements to the foregoing, if any.
3. Definitions.
a. Authorized Person. As used in this Agreement, the
term "Authorized Person" means any officer of the Trust and any
other person, whether or not any such person is an officer of the
Trust, duly authorized by the Trustees of the Trust to give Oral
and Written Instructions on behalf of the Series and certified by
the Secretary or an Assistant Secretary of the Trust or any
amendment thereto as may be received by Rodney Square from time
to time.
b. Oral Instructions. As used in this Agreement, the
term "Oral Instructions" means oral instructions actually
received by Rodney Square from an Authorized Person or from a
person reasonably believed by Rodney Square to be an Authorized
Person. The Trust agrees to deliver to Rodney Square, at the
time and in the manner specified in Section 4(b) of this
Agreement, Written Instructions confirming Oral Instructions
signed by two Authorized Persons and received by Rodney Square.
c. Written Instructions. As used in this Agreement,
the term "Written Instructions" means written instructions on
behalf of the Trust signed by two Authorized Persons, delivered
by hand, mail, telegram, cable, telex or facsimile to, and
received by, Rodney Square.
4. Instructions Consistent with Declaration of Trust,
etc..
a. Unless otherwise provided in this Agreement,
Rodney Square shall act only upon Oral or Written Instructions.
Rodney Square, in its capacity under this Agreement, may assume
that any Oral or Written Instructions received hereunder are not
in any way inconsistent with any provisions of this Agreement,
the Trust's Declaration of Trust or By-Laws, or any vote,
resolution or proceeding of the Trust's shareholders, or of the
Trust's Board of Trustees, or of any committee thereof.
b. Rodney Square shall be entitled to rely upon any
Oral Instructions and any Written Instructions actually received
by Rodney Square pursuant to this Agreement. The Trust agrees to
forward to Rodney Square Written Instructions confirming Oral
Instructions in such manner that the Written Instructions are
received by Rodney Square by the close of business of the same
day that such Oral Instructions are given to Rodney Square. The
Trust agrees that the fact that confirming Written Instructions
are not received by Rodney Square shall in no way affect the
validity or enforceability of the transactions authorized by Oral
Instructions. The Trust agrees that Rodney Square shall incur no
liability to the Trust in acting upon Oral Instructions, provided
such instructions reasonably appear to have been received from an
Authorized Person.
5. Transactions Not Requiring Instructions. In the
absence of contrary Written Instructions, Rodney Square is
authorized to take the following actions:
a. Issuance of Shares. Upon receipt of a purchase
order from a prospective shareholder for the purchase of Shares
and sufficient information to enable Rodney Square to establish a
shareholder account or to issue Shares to an existing shareholder
account, and after confirmation of receipt or crediting of
Federal funds for such order from Rodney Square's designated
bank, Rodney Square shall issue and credit the account of the
investor or other record holder with Shares based on the current
net asset value of such Shares as described in the Trust's
Registration Statement.
b. Transfer of Shares; Uncertificated Securities.
Where a shareholder does not hold a certificate representing the
number of Shares in its account and does provide Rodney Square
with instructions for the transfer of such Shares which include
appropriate documentation to permit a transfer, then Rodney
Square shall register such Shares and shall deliver them pursuant
to instructions received from the transferor, pursuant to the
rules and regulations of the SEC, and the laws of the State of
Delaware relating to the transfer of shares of beneficial
interest
c. Share Certificates. If at any time the Trust
issues Share stock certificates, the following provisions will
apply:
(1) The Trust will supply Rodney Square with a
sufficient supply of stock certificates representing
Shares, in the form approved from time to time by the
Trustees of the Trust, and, from time to time, shall
replenish such supply upon request of Rodney Square.
Such stock certificates shall be properly signed,
manually or by facsimile signature, by the duly
authorized officers of the Trust, and shall bear the
corporate seal or facsimile thereof of the Trust, and
notwithstanding the death, resignation or removal of
any officer of the Trust, such executed certificates
bearing the manual or facsimile signature of such
officer shall remain valid and may be issued to
shareholders until Rodney Square is otherwise directed
by Written Instructions.
(2) In the case of the loss or destruction of any
certificate representing Shares, no new certificate
shall be issued in lieu thereof, unless there shall
first have been furnished an appropriate bond of
indemnity issued by a surety company approved by Rodney
Square.
(3) Upon receipt of signed Share stock certificates,
which shall be in proper form for transfer, and upon
cancellation or destruction thereof, Rodney Square
shall countersign, register and issue new certificates
for the same number of Shares and shall deliver them
pursuant to instructions received from the transferor,
the rules and regulations of the SEC, and the laws of
the State of Delaware relating to the transfer of
shares of beneficial interest.
(4) Upon receipt of Share stock certificates, which
shall be in proper form for transfer, together with the
shareholder's instructions to hold such Share
certificates for safekeeping, Rodney Square shall
reduce such Shares to uncertificated status, while
retaining the appropriate registration in the name of
the shareholder upon the transfer books.
(5) Upon receipt of written instructions from a
shareholder of uncertificated securities for a
certificate in the number of Shares in its account,
Rodney Square will issue such Share stock certificates
and deliver them to the shareholder.
d. Redemption of Shares. Upon receipt of a
redemption order from a shareholder that is an open-end
investment company and/or in accordance with Written
Instructions, Rodney Square shall redeem the number of Shares
indicated thereon from the redeeming shareholder's account and
receive from the Trust's Custodian and disburse pursuant to the
instructions of a redeeming shareholder or his or her agent the
redemption proceeds therefor, or arrange for direct payment of
redemption proceeds by the Custodian to the redeeming shareholder
or as instructed by the shareholder or his or her agent, in
accordance with such procedures and controls as are mutually
agreed upon from time to time by and among the Trust, Rodney
Square and the Trust's Custodian.
6. Shares. The Trust and the Series have an unlimited
number of authorized Shares. The Transfer Agent shall record
issues of all Shares.
7. Distributions. The Trust shall furnish Rodney Square
with appropriate evidence of action by the Trust's Trustees
authorizing the declaration and payment of any distributions as
described in the Trust's Registration Statement. After deducting
any amount required to be withheld by any applicable tax laws,
rules and regulations or other applicable laws, rules and
regulations, Rodney Square shall, in accordance with instructions
in proper form from a shareholder and the provisions of the
Trust's Agreement and Declaration of Trust and Registration
Statement, issue and credit the account of the shareholder with
Shares, or, if the shareholder so elects, pay such distributions
in cash to the shareholder in the manner described in the
Registration Statement. In lieu of receiving distribution
proceeds from the Trust's Custodian and paying distributions to
shareholders, Rodney Square may arrange for the direct payment of
distributions to shareholders by the Custodian, in accordance
with such procedures and controls as are mutually agreed upon
from time to time by and among the Trust, Rodney Square and the
Trust's Custodian.
Rodney Square shall prepare, file with the Internal Revenue
Service and other appropriate taxing authorities, and address and
mail to shareholders such returns and information relating to
distributions paid by the Trust as are required to be so
prepared, filed and mailed by applicable laws, rules and
regulations, or such substitute form of notice as may from time
to time be permitted or required by the Internal Revenue Service.
On behalf of the Trust, Rodney Square shall mail certain requests
for shareholders' certifications under penalties of perjury and
pay on a timely basis to the appropriate Federal authorities any
taxes to be withheld on distributions paid by the Trust, all as
required by applicable Federal tax laws and regulation.
In accordance with the procedures set forth in the Trust's
Registration Statement or Written Instructions amending such
procedures, resolutions of the Trust's Trustees that are not
inconsistent with this Agreement and are provided to Rodney
Square from time to time, and such procedures and controls as are
mutually agreed upon from time to time by and among the Trust,
Rodney Square and the Trust's Custodian, Rodney Square shall
arrange for issuance of Shares obtained through (a) transfers of
funds from shareholders' accounts at financial institutions; and
(b) the exchange of Trust Shares for eligible portfolio
securities.
8. Communications with Shareholders.
a. Communications to Shareholders. Rodney Square
will address and mail all communications by the Trust to its
shareholders, including reports to shareholders, confirmations of
purchases and sales of Shares, monthly statements, distribution
notices and proxy material for its meetings of shareholders.
Rodney Square will receive and tabulate the proxy cards for
shareholder meetings.
b. Correspondence. Rodney Square will answer such
correspondence from shareholders, securities brokers and others
relating to its duties hereunder and such other correspondence as
may from time to time be mutually agreed upon between Rodney
Square and the Trust.
9. Services to be Performed. Rodney Square shall be
responsible for administering and/or performing transfer agent
functions, in connection with the issuance, transfer and
redemption or repurchase (including coordination with the Trust's
Custodian bank in connection with shareholder redemption by
check) of the Trust's Shares. The details of the operating
standards and procedures to be followed shall be determined from
time to time by agreement between Rodney Square and the Trust.
The Transfer Agent will perform the following functions on
an ongoing basis:
a. provide the Trust with duplicate confirmations of
shareholder activity, whether executed through a dealer or
directly with the Transfer Agent;
b. provide shareholder lists and statistical
information concerning accounts to the Trust; and
c. provide timely notification of Trust activity and
such other information as may be agreed upon from time to time
between the Transfer Agent and the Trust's custodians, to the
Trust or the custodians and such reports to the Trust.
10. Record Keeping and Other Information.
a. Rodney Square shall maintain records of the
accounts for each shareholder showing the items listed in
Schedule B.
b. Rodney Square shall create and maintain all
necessary records in accordance with all applicable laws, rules
and regulations, including but not limited to records required by
Section 31(a) of the 1940 Act and the rules thereunder and any
applicable regulations of the Federal Deposit Insurance
Corporation ("FDIC") or any successor regulatory authority, as
the same may be amended from time to time, and those records
pertaining to the various functions performed by it hereunder.
All records shall be the property of the Trust at all times and
shall be available for inspection and use by the Trust. Where
applicable, such records shall be maintained by Rodney Square for
the periods and in the places required by Rule 31a-2 under the
1940 Act and any applicable regulations of the FDIC or any
successor regulatory authority.
11. Audit, Inspection and Visitation. Rodney Square shall
make available during regular business hours all records and
other data created and maintained pursuant to this Agreement for
reasonable audit and inspection by the Trust or any person
retained by the Trust. Upon reasonable notice by the Trust,
Rodney Square shall make available during regular business hours
its facilities and premises employed in connection with its
performance of this Agreement for reasonable visitation by the
Trust, or any person retained by the Trust.
12. Compensation. As compensation for the services
rendered by Rodney Square during the term of this Agreement, the
Trust will pay to Rodney Square an annual fee calculated daily
and payable monthly, as may be agreed to in writing from time to
time by the Trust and Rodney Square.
The Trust shall reimburse Rodney Square for all reasonable
out-of-pocket expenses incurred by Rodney Square or its agents in
the performance of its obligations hereunder. Such reimbursement
for expenses incurred in any calendar month shall be made on or
before the tenth day of the next succeeding month
The term "out-of-pocket expenses" shall include, but not be
limited to, the following expenses incurred by Rodney Square in
the performance of its obligations hereunder: the cost of
stationery and forms (including but not limited to checks, proxy
cards, and envelopes), the cost of postage, the cost of insertion
of non-standard size materials in mailing envelopes and other
special mailing preparation by outside firms, the cost of
first-class mailing insurance, the cost of external electronic
communications as approved by the Trustees (to include telephone
and telegraph equipment and an allocable portion of the cost of
personnel responsible for the maintenance of such equipment),
toll charges, data communications equipment and line charges and
the cost of microfilming of shareholder records (including both
the cost of storage as well as charges for access to such
records). If Rodney Square shall undertake the responsibility
for microfilming shareholder records, it may be separately
compensated therefor in an amount agreed upon by the principal
financial officer of the Trust and Rodney Square, such amount not
to exceed the amount which would be paid to an outside firm for
providing such microfilming services.
13. Use of Rodney Square's Name. The Trust shall not use
the name of Rodney Square in any Registration Statement, sales
literature or other material relating to the Trust in a manner
not approved prior thereto, provided, however, that Rodney Square
shall approve all uses of its name which merely refer in accurate
terms to its appointments hereunder or which are required by the
SEC or a state securities commission and, provided further, that
in no event shall such approval be unreasonably withheld.
14. Use of Trust's Name. Rodney Square shall not use the
name of the Trust or the Series of the Trust or material relating
to the Trust or the Series on any checks, bank drafts, bank
statements or forms for other than internal use in a manner not
approved prior thereto, provided, however, that the Trust shall
approve all uses of its name which merely refer in accurate terms
to the appointment of Rodney Square hereunder or which are
required by the FDIC, the SEC or a state securities commission,
and, provided, further, that in no event shall such approval be
unreasonably withheld.
15. Security. Rodney Square represents and warrants that
the various procedures and systems which Rodney Square has
implemented with regard to safeguarding from loss or damage
attributable to fire, theft or any other cause (including
provision for twenty-four hours a day restricted access) the
Trust's blank checks, records and other data and Rodney Square's
records, data, equipment, facilities and other property used in
the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as in
its judgment are required for the secure performance of its
obligations hereunder. The parties shall review such systems and
procedures on a periodic basis.
16. Insurance. Upon request, Rodney Square shall provide
the Trust with details regarding its insurance coverage, and
Rodney Square shall notify the Trust should any of its insurance
coverage be materially changed. Such notification shall include
the date of change and the reason or reasons therefor. Rodney
Square shall notify the Trust of any material claims against it,
whether or not they may be covered by insurance and shall notify
the Trust from time to time as may be appropriate of the total
outstanding claims made by Rodney Square under its insurance
coverage.
17. Appointment of Agents. Neither this Agreement nor any
rights or obligations hereunder may be assigned by Rodney Square
without the written consent of the Trust. Rodney Square may,
however, at any time or times in its discretion appoint (and may
at any time remove) any other bank or trust company, which is
itself qualified under the Securities Exchange Act of 1934 (the
"1934 Act") to act as a transfer agent, as its agent to carry out
such of the services to be performed under this agreement as
Rodney Square may from time to time direct; provided, however,
that the appointment of any agent shall not relieve Rodney Square
of any of its responsibilities or liabilities hereunder.
18. Delegation. On thirty (30) days' prior written notice
to the Trust, Rodney Square may assign any part or all its rights
and delegate its duties hereunder to any affiliate, provided that
(i) the delegate agrees with Rodney Square to comply with all
relevant provisions of the 1940 Act and applicable rules and
regulations thereunder; (ii) Rodney Square shall remain
responsible for the performance of all of its duties under this
Agreement; (iii) Rodney Square and such delegate shall promptly
provide such information as the Trust may request; and (iv)
Rodney Square shall respond to such questions as the Trust may
ask, relative to the delegation, including (without limitation)
the capabilities of the delegate.
19. Indemnification.
a. The Trust agrees to indemnify and hold harmless
Rodney Square, its directors, officers, employees, agents and
representatives (collectively, "Representatives") from all taxes,
charges, expenses, assessments, claims and liabilities including,
without limitation, liabilities arising under the 1933 Act, the
1934 Act, the 1940 Act and any applicable state and/or foreign
securities laws or amendments thereto (the "Securities Laws"),
and expenses, including without limitation reasonable attorneys'
fees and disbursements arising directly or indirectly from any
action or omission to act which Rodney Square takes (i) at the
request of or on the direction of or in reliance on the advice of
the Trust or (ii) upon Oral or Written Instructions. Neither
Rodney Square nor any of its Representatives shall be indemnified
against any liability (or any expenses incident to such
liability) arising out of Rodney Square's or its Representatives'
own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
b. Rodney Square agrees to indemnify and hold
harmless the Trust from all taxes, charges, expenses,
assessments, claims and liabilities arising from Rodney Square's
obligations pursuant to this Agreement (including, without
limitation, liabilities arising under the Securities Laws) and
expenses, including (without limitation) reasonable attorneys'
fees and disbursements arising directly or indirectly out of
Rodney Square's or its Representatives' own willful misfeasance,
bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement
c. In order that the indemnification provisions
contained in this Section 19 shall apply, upon the assertion of a
claim for which either party may be required to indemnify the
other, the party seeking indemnification shall promptly notify
the other party of such assertion, and shall keep the other party
advised with respect to all developments concerning such claim.
The party who may be required to indemnify shall have the option
to participate with the party seeking indemnification in the
defense of such claim. The party seeking indemnification shall
in no case confess any claim or make any compromise in any case
in which the other party may be required to indemnify it except
with the other party's prior written consent.
20. Responsibility of Rodney Square. Rodney Square shall
be under no duty to take any action on behalf of the Trust except
as specifically set forth herein or as may be specifically agreed
to by Rodney Square in writing. Rodney Square shall be obligated
to exercise due care and diligence in the performance of its
duties hereunder, to act in good faith and to use its best
efforts in performing the services provided for under this
Agreement. Rodney Square shall be liable for any damages arising
out of or in connection with Rodney Square's performance of or
omission or failure to perform its duties under this Agreement to
the extent such damages arise out of Rodney Square's negligence,
reckless disregard of its duties, bad faith or willful
misfeasance.
Without limiting the generality of the foregoing or of any
other provision of this Agreement, Rodney Square, in connection
with its duties under this Agreement, shall not be under any duty
or obligation to inquire into and shall not be liable for (i) the
validity or invalidity or authority or lack thereof of any Oral
or Written Instruction, notice or other instrument which conforms
to the applicable requirements of this Agreement, and which
Rodney Square reasonably believes to be genuine; or (ii) subject
to the provisions of Section 21 hereof, delays or errors or loss
of data occurring by reason of circumstances beyond Rodney
Square's control, including acts of civil or military authority,
national emergencies, labor difficulties, fire, flood or
catastrophe, acts of God, insurrection, war, riots or failure of
the mails, transportation, communication or power supply.
21. Acts of God, etc. Rodney Square shall not be liable
for delays or errors occurring by reason of circumstances beyond
its control, including but not limited to acts of civil or
military authority, national emergencies, labor difficulties,
fire, flood or catastrophe, acts of God, insurrection, war,
riots, or failure of the mails, transportation, communication or
power supply. In the event of equipment breakdowns beyond its
control, Rodney Square shall, at no additional expense to the
Trust, take reasonable steps to minimize service interruptions,
but shall have no liability with respect thereto. Rodney Square
shall enter into and shall maintain in effect with appropriate
parties one or more agreements making reasonable provision for
emergency use of electronic data processing equipment to the
extent appropriate equipment is available.
22. Amendments. Rodney Square and the Trust shall
regularly consult with each other regarding Rodney Square's
performance of its obligations and its compensation hereunder.
In connection therewith, the Trust shall submit to Rodney Square,
at a reasonable time in advance of filing with the SEC, copies of
any amended or supplemented Registration Statements (including
exhibits) under 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 Trust.
Any change in such material which would require any material
change in Rodney Square's obligations hereunder shall be subject
to Rodney Square's approval, which shall not be unreasonably
withheld. In the event that such change materially increases the
cost to Rodney Square of performing its obligations hereunder,
Rodney Square shall be entitled to receive reasonable
compensation therefor.
23. Duration, Termination, etc. Neither this Agreement nor
any provisions hereof may be changed, waived or discharged
orally, but only by written instrument which shall make specific
reference to this Agreement and which shall be signed by the
party against which enforcement of such change, waiver or
discharge is sought.
This Agreement shall become effective as of the close of
business on the date first written above, and unless terminated
as immediately hereinafter provided, shall continue in effect for
three (3) years from the date of its execution and thereafter
from year to year, provided continuance after the three (3) year
period is approved at least annually by (i) the vote of a
majority of the Trustees of the Trust and (ii) the vote of a
majority of those Trustees of the Trust who are not interested
persons of the Trust, and who are not parties to this Agreement
or interested persons of any party, cast at a meeting called for
the purpose of voting on the approval.
This Agreement may be terminated by a vote of the Board of
Trustees of the Trust, or by a vote of a majority of the
outstanding voting securities of any one or more of the Trust's
Series, upon written notice to Rodney Square, in the event of a
material breach remaining uncured for thirty (30) days after due
written notification of such breach has been issued by the Trust
to, and received by, Rodney Square. However, in the event of a
material breach resulting from willful misconduct, reckless
disregard or intentional misconduct by Rodney Square or its
employees, the Agreement may be terminated by the Board of
Trustees upon thirty (30) days written notice to Rodney Square.
This Agreement may also be terminated by Rodney Square, upon
written notice to the Trust, in the event of a material breach
remaining uncured for sixty (60) days after due written
notification of such breach has been issued by Rodney Square to,
and received by, the Trust.
Termination shall not relieve the parties of duties and
obligations accrued prior to termination (including the duty to
pay accrued fees and expenses), nor those duties which by their
nature survive termination (such as the duty to maintain the
confidentiality of information, and the duty to transfer assets
and records to successors in an orderly and cooperative manner).
Upon the termination hereof, the Trust shall reimburse
Rodney Square any fees incurred as a result of the termination
conversion for any out-of-pocket expenses reasonably incurred by
Rodney Square including or during the period prior to the date of
such termination. In the event that the Trust designates a
successor to any of Rodney Square's obligations hereunder, Rodney
Square shall, at the expense and direction of the Trust, transfer
to such successor a certified list of the shareholders of the
Trust (with name, address, and, if provided, tax identification
or Social Security number), a complete record of the account of
each shareholder, and all other relevant books, records and other
data established or maintained by Rodney Square hereunder.
Rodney Square shall be liable for any losses sustained by the
Trust as a result of Rodney Square's failure to accurately and
promptly provide these materials.
24. Registration as a Transfer Agent. Rodney Square
represents that it is currently registered with the appropriate
Federal agency for the registration of transfer agents, and that
it will remain so registered for the duration of this Agreement.
Rodney Square agrees that it will promptly notify the Trust in
the event of any material change in its status as a registered
transfer agent. Should Rodney Square fail to be registered with
the Federal Deposit Insurance Company or any successor regulatory
authority as a transfer agent at any time during this Agreement,
the Trust may, on written notice to Rodney Square, immediately
terminate this Agreement.
25. Notice. Any notice under this Agreement shall be given
in writing addressed and delivered or mailed, postage prepaid, to
the other party to this Agreement at its principal place of
business.
26. 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.
27. 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 governed and construed
according to the laws (without regard, however, to laws as to
conflicts of law) of the State of Delaware.
28. Shareholder Liability. Rodney Square acknowledges that
it has received notice of and accepts the limitations of
liability set forth in the Trust's Agreement and Declaration of
Trust. Rodney Square agrees that the Trust's obligations
hereunder shall be limited to the Trust, and that Rodney Square
shall have recourse solely against the assets of the Series with
respect to which the Trust's obligations hereunder relate and
shall have no recourse against the assets of any other Series or
against any shareholder, Trustee, officer, employee, or agent of
the Trust.
29. Miscellaneous. Both parties agree 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 simultaneously in two counterparts, each of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this
agreement as of the day and year first above written.
KIEWIT INVESTMENT TRUST
By:
_____________________________
Ann McCulloch,
President
RODNEY SQUARE MANAGEMENT
CORPORATION
By:
_____________________________
Martin L. Klopping,
President
TRANSFER AGENCY AGREEMENT
SCHEDULE A
KIEWIT INVESTMENT TRUST
Trust Listing
Kiewit Money Market Series
Kiewit Government Money Market Series
Kiewit Short-Term Government Series
Kiewit Intermediate-Term Bond Series
Kiewit Tax-Exempt Series
Kiewit Equity Series
TRANSFER AGENCY AGREEMENT
SCHEDULE B
KIEWIT INVESTMENT TRUST
Shareholder Records
Rodney Square shall maintain records of the accounts for each
shareholder showing the following information:
a. name, address and United States Tax Identification or
Social Security number;
b. number and Series of Shares held and number and Series
of Shares for which certificates, if any, have been issued,
including certificate numbers and denominations;
c. historical information regarding the account of each
shareholder, including distributions paid and the date and
price for all transactions on a shareholder's account;
d. any stop or restraining order placed against a
shareholder's account;
e. any correspondence relating to the current maintenance
of a shareholder's account;
f. information with respect to withholding; and,
g. any information required in order for Rodney Square to
perform any calculations contemplated or required by this
Agreement.
Exhibit No. 24(b)(9)(ii)
KIEWIT INVESTMENT TRUST
RODNEY SQUARE MANAGEMENT CORPORATION
ACCOUNTING SERVICES AGREEMENT
THIS ACCOUNTING SERVICES AGREEMENT made this 19th day of
February, 1997, by and between Kiewit Investment Trust, a
Delaware business trust (hereinafter called the "Trust"), and
Rodney Square Management Corporation, a corporation organized
under the laws of the State of Delaware (hereinafter called
"Rodney Square"), having its principal place of business in
Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company;
WHEREAS, at the present time, the Trust consists of six
separate and distinct Series, Kiewit Money Market Series, Kiewit
Government Money Market Series, Kiewit Short-Term Government
Series, Kiewit Intermediate-Term Bond Series, Kiewit Tax-Exempt
Series and Kiewit Equity Series (individually, a "Series", and
collectively, "the Series");
NOW THEREFORE, in consideration of the premises and mutual
covenants contained in this Agreement, the Trust and Rodney
Square agree as follows:
1. Appointment. The Trust hereby appoints Rodney Square to
provide certain accounting services to the Trust for the period
and on the terms set forth in this Agreement. Rodney Square
accepts such appointment and agrees to furnish the services
herein set forth in return for the compensation provided for in
Section 11 of this Agreement. Rodney Square agrees to comply with
all relevant provisions of the 1940 Act and applicable rules and
regulations thereunder, and to remain open for business on any
day which a Series considers a business day. The Trust may from
time to time issue separate series or classes or classify and
reclassify shares of such series or class. Rodney Square shall
identify to each such series or class property belonging to such
series or class, and in such reports, confirmations and notices
to the Trust called for under this Agreement, shall identify the
series or class to which such report, confirmation or notice
pertains.
2. Documents. The Trust has furnished Rodney Square with
copies properly certified or authenticated of each of the
following:
a. Resolutions of the Trust's Board of Trustees
authorizing the appointment of Rodney Square to provide certain
accounting services to the Trust and approving this Agreement;
b. Schedule B identifying and containing the
signatures of the Trust's officers and other persons authorized
("Authorized Persons") to sign "Written Instructions" (as
hereinafter defined);
c. The Trust's Certificate of Trust filed with the
Secretary of the State of Delaware on January 23, 1997 and all
amendments thereto and restatements thereof;
d. The Trust's Agreement and Declaration of Trust and
all amendments thereto and restatements thereof;
e. The Trust's By-Laws and all amendments thereto and
restatements thereof (such By-Laws, as presently in effect and as
they shall from time to time be amended or restated, are herein
called "By-Laws");
f. The Investment Management Agreement between the
Trust and Kiewit Investment Management (the "Manager") with
respect to each Series dated February 19, 1997;
g. The Administration Agreement between the Trust and
Rodney Square dated February 19, 1997;
h. The Custodian Agreement between the Trust and WTC
(the "Custodian") dated February 19, 1997;
i. The Trust's Notification of Registration filed
pursuant to Section 8(a) of the 1940 Act filed with the
Securities and Exchange Commission ("SEC") on _______________;
j. The Trust's Registration Statement on Form N-1A
under the 1940 Act (File No. 811-______), as filed with the SEC,
and all amendments thereto;
k. If required, a copy of either (i) a filed notice
of eligibility to claim the exclusion from the definition of
"commodity pool operator" contained in Section 2(a)(1)(A) of the
Commodity Exchange Act ("CEA") that is provided in Rule 4.5 under
the CEA, together with all supplements as are required by the
Commodity Futures Trading Commission ("CFTC"), or (ii) a letter
which has been granted the Trust by the CFTC which states that
the Trust will not be treated as a "pool" as defined in Section
4.10(d) of the CFTC's General Regulations, or (iii) a letter
which has been granted the Trust by the CFTC which states that
CFTC will not take any enforcement action if the Trust does not
register as a "commodity pool operator."
The Trust will furnish Rodney Square from time to time
with copies, properly certified or authenticated, of all
additions, amendments or supplements to the foregoing, if any.
3. Instructions Consistent with Declaration of Trust, etc.
a. Unless otherwise provided in this Agreement,
Rodney Square shall act only upon Oral and Written Instructions.
("Oral Instructions", as used in this Agreement, means oral
instructions actually received by Rodney Square from an
Authorized Person or from a person reasonably believed by Rodney
Square to be an Authorized Person. "Written Instructions", as
used in this Agreement, means written instructions on behalf of
the Trust signed by two Authorized Persons, delivered by hand,
mail, telegram, cable, telex or facsimile, and received by Rodney
Square. "Authorized Person", as used in this Agreement, means
any officer of the Trust and any other person, whether or not any
such person is an officer of the Trust, duly authorized by the
Trustees of the Trust to give Oral and Written Instructions on
behalf of the Series(s) and certified by the Secretary or an
Assistant Secretary of the Trust or any amendment thereto as may
be received by Rodney Square from time to time. Rodney Square in
its capacity under this Agreement may assume that any Oral or
Written Instructions received hereunder are not in any way
inconsistent with any provisions of the Trust's Declaration of
Trust or Bylaws, or with any vote, resolution or proceeding of
the Trust's shareholders, or of the Trust's Board of Trustees, or
of any committee thereof.
b. Rodney Square shall be entitled to rely upon any
Oral Instructions and any Written Instructions actually received
by Rodney Square pursuant to this Agreement. The Trust agrees to
forward to Rodney Square Written Instructions confirming Oral
Instructions in such manner that the Written Instructions are
received by Rodney Square by the close of business of the same
day that such Oral Instructions are given to Rodney Square. The
Trust agrees that the fact that confirming Written Instructions
are not received by Rodney Square shall in no way affect the
validity or enforceability of the transactions authorized by Oral
Instructions. The Trust agrees that Rodney Square shall incur no
liability to the Trust in acting upon Oral Instructions, provided
that such instructions reasonably appear to have been received by
Rodney Square from an Authorized Person.
4. Series Accounting.
a. Rodney Square shall provide the following
accounting functions on a daily basis:
(1) Journalize each Series'
investment, income and expense
activities;
(2) Verify investment buy/sell
trade tickets when received
from the Manager and transmit
trades to the Trust's Custodian
for proper settlement;
(3) Maintain individual ledgers for investment
securities;
(4) Maintain historical tax lots for each
security;
(5) Reconcile cash and investment balances of each
Series with the Custodian, and provide the
Manager with the beginning cash balance
available for investment purposes;
(6) Update the cash availability throughout the
day as required by the Manager;
(7) Post to and prepare each Series' Statement of
Assets and Liabilities and Statement of
Operations;
(8) Calculate expenses payable pursuant to the
Trust's various contractual obligations;
(9) Control all disbursements from the Trust on
behalf of each Series and authorize such
disbursements upon Written Instructions;
(10) Calculate capital gains and losses;
(11) Determine each Series' net income;
(12) Obtain the Series' expense, security market
prices or, if such market prices
are not readily available, then
obtain such prices from services
approved by the Manager, and in
either case calculate the market
or fair value of each Series'
investments;
(13) In the case of debt instruments with remaining
maturities of sixty (60) days or less,
calculate the amortized cost value of those
instruments;
(14) Transmit or mail a copy of the Series
valuations to the Manager;
(15) Compute the net assets of each Series;
(16) Prepare and monitor the expense accruals and
notify Trust management of any proposed
adjustments.
b. In addition, Rodney Square will:
(1) Prepare monthly financial
statements, which will include,
without limitation, each
Series' Schedule of
Investments, Statement of
Assets and Liabilities,
Statement of Operations,
Statement of Changes in Net
Assets, Cash Statement, and
Schedule of Capital Gains and
Losses;
(2) Prepare monthly security transactions
listings;
(3) Prepare monthly broker security transactions
summaries;
(4) Assist in the preparation of support schedules
necessary for completion of Federal and state
tax returns;
Assist in the preparation and filing of the
Trust's annual and semiannual reports with the
SEC on Form N-SAR;
Assist with the preparation of amendments to the
Trust's registration statements on Form N-1A.
(7) Determine each Trust partner's allocable share
of income, expense, and realized and
unrealized gain and loss, as necessary to,
among other things, maintain the partner's
qualification, if necessary, as a "regulated
investment company" under the Internal Revenue
Code of 1986, as amended from time to time.
5. Recordkeeping and Other Information. Rodney Square
shall create and maintain all necessary records in accordance
with all applicable laws, rules and regulations, including, but
not limited to, records required by Section 31(a) of the 1940 Act
and the rules thereunder, as the same may be amended from time to
time, pertaining to the various functions (described above)
performed by it and not otherwise created and maintained by
another party pursuant to contract with the Trust. All records
shall be the property of the Trust at all times and shall be
available for inspection and use by the Trust or the Trust's
authorized representatives. Upon reasonable request by the Trust,
copies of such records shall be provided by Rodney Square to the
Trust or the Trust's authorized representatives at the Trust's
expense. Where applicable, such records shall be maintained by
Rodney Square for the periods and in the places required by Rule
31a-2 under the 1940 Act.
6. Liaison With Accountants. Rodney Square shall act as
liaison with the Trust's independent public accountants and shall
provide account analysis, fiscal year summaries and other audit
related schedules. Rodney Square shall take all reasonable action
in the performance of its obligations under this Agreement to
assure that the necessary information is made available to such
accountants for the expression of their opinion, as such may be
required by the Trust from time to time.
7. Confidentiality. Rodney Square agrees on behalf of
itself and its employees to treat confidentially and as
proprietary information of the Trust all records and other
information relative to the Trust and its prior, present or
potential partners, and not to use such records and information
for any purpose other than performance of its responsibilities
and duties hereunder, except, after prior notification to and
approval in writing by the Trust, which approval shall not be
unreasonably withheld and may not be withheld where Rodney Square
may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by
duly constituted authorities, or when so requested by the Trust.
8. Equipment Failure. In the event of equipment failures
beyond Rodney Square's control, Rodney Square shall, at no
additional expense to the Trust, take reasonable steps to
minimize service interruptions, but shall have no liability with
respect thereto. Rodney Square shall enter into and shall
maintain in effect with appropriate parties one or more
agreements making reasonable provision of emergency use of
electronic data processing equipment to the extent appropriate
equipment is available.
9. Right to Receive Advice.
a. Advice of Trust. If Rodney Square shall be in
doubt as to any action to be taken or omitted by it, it may
request, and shall receive, from the Trust directions or advice,
including Oral or Written Instructions where appropriate.
b. Advice of Counsel. If Rodney Square shall be in
doubt as to any question of law involved in any action to be
taken or omitted by Rodney Square, it may request advice at its
own cost from counsel of its own choosing (who may be the
regularly retained counsel for the Trust or Rodney Square or the
in-house counsel for Rodney Square, at the option of Rodney
Square).
c. Conflicting Advice. In case of conflict between
directions, advice or Oral or Written Instructions received by
Rodney Square pursuant to subsection (a) of this Section and
advice received by Rodney Square pursuant to subsection (b) of
this Section, Rodney Square shall be entitled to rely on and
follow the advice received pursuant to the latter provision
alone.
d. Protection of Rodney Square. Rodney Square shall
be protected in any action or inaction which it takes in reliance
on any directions, advice or Oral or Written Instructions
received pursuant to subsections (a) or (b) of this Section which
Rodney Square, after receipt of any such directions, advice or
Oral or Written Instructions, in good faith believes to be
consistent with such directions, advice or Oral or Written
Instructions, as the case may be. However, nothing in this
Section shall be construed as imposing upon Rodney Square any
obligation (i) to seek such direction, advice or Oral or Written
Instructions, or (ii) to act in accordance with such directions,
advice or Oral or Written Instructions when received, unless,
under the terms of another provision of this Agreement, the same
is a condition to Rodney Square's properly taking or omitting to
take such action. Nothing in this subsection shall excuse Rodney
Square when an action or omission on the part of Rodney Square
constitutes willful misfeasance, bad faith, negligence or
reckless disregard by Rodney Square of its duties under this
Agreement.
10. Compliance with Governmental Rules and Regulations.
Except as otherwise provided herein in Sections 4 and 5, the
Trust assumes full responsibility for ensuring that the Trust
complies with all applicable requirements of the 1933 Act, the
1934 Act, the 1940 Act, the CEA and any laws, rules and
regulations of governmental authorities having jurisdiction over
the Trust.
11. Compensation. For the performance of its obligations
under this Agreement, the Trust on behalf of each Series shall
pay Rodney Square in accordance with the fee arrangements
described in Schedule A attached hereto, as such schedule may be
amended from time to time.
12. Indemnification.
a. The Trust agrees to indemnify and hold harmless
Rodney Square, its directors, officers, employees, agents and
representatives (collectively "Representatives") from all taxes,
charges, expenses, assessments, claims and liabilities including,
without limitation, liabilities arising under the 1933 Act, the
1934 Act, the 1940 Act, and any applicable state and/or foreign
securities laws, or amendments thereto (the "Securities Laws"),
and expenses, including without limitation reasonable attorneys'
fees and disbursements, arising directly or indirectly from any
action or omission to act which Rodney Square takes (i) at the
request of or on the direction of or in reliance on the advice of
the Trust or (ii) upon Oral or Written Instructions. Neither
Rodney Square nor any of its Representatives shall be indemnified
against any liability (or any expenses incident to such
liability) arising out of Rodney Square's or its Representatives'
own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
b. Rodney Square agrees to indemnify and hold
harmless the Trust from all taxes, charges, expenses,
assessments, claims and liabilities arising from Rodney Square's
obligations pursuant to this Agreement (including, without
limitation, liabilities arising under the Securities Laws) and
expenses, including (without limitation) reasonable attorneys'
fees and disbursements arising directly or indirectly out of
Rodney Square's or its Representatives' own willful misfeasance,
bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
c. In order that the indemnification provisions
contained in this Section 12 shall apply, upon the assertion of a
claim for which either party may be required to indemnify the
other, the party seeking indemnification shall promptly notify
the other party of such assertion, and shall keep the other party
advised with respect to all developments concerning such claim.
The party who may be required to indemnify shall have the option
to participate with the party seeking indemnification in the
defense of such claim. The party seeking indemnification shall
in no case confess any claim or make any compromise in any case
in which the other party may be required to indemnify it except
with the other party's prior written consent.
13. Responsibility of Rodney Square. Rodney Square shall be
under no duty to take any action on behalf of the Trust except as
specifically set forth herein or as may be specifically agreed to
by Rodney Square in writing. In the performance of its duties
hereunder, Rodney Square shall be obligated to exercise due care
and diligence and to act in good faith and to use its best
efforts within reasonable limits in performing services provided
for under this Agreement. Rodney Square shall be responsible for
its own negligent failure to perform its duties under this
Agreement, but to the extent that duties, obligations and
responsibilities are not expressly set forth in this Agreement,
Rodney Square shall not be liable for any act or omission which
does not constitute willful misfeasance, bad faith or negligence
on the part of Rodney Square or reckless disregard by Rodney
Square of such duties, obligations and responsibilities. Without
limiting the generality of the foregoing or of any other
provision of this Agreement, Rodney Square in connection with its
duties under this Agreement shall not be under any duty or
obligation to inquire into and shall not be liable for or in
respect of (i) the validity or invalidity or authority or lack
thereof of any Oral or Written Instruction, notice or other
instrument which reasonably conforms to the applicable
requirements of this Agreement, and which Rodney Square
reasonably believes to be genuine; or (ii) delays or errors or
loss of data occurring by reason of circumstances beyond Rodney
Square's control, including acts of civil or military authority,
national emergencies, labor difficulties, fire, mechanical
breakdown (except as provided in Section 8), flood or
catastrophe, acts of God, insurrection, war, riots or failure of
the mails, transportation, communication or power supply, in
which circumstances Rodney Square shall take minimal actions to
minimize loss of data therefor.
14. Duration, Termination, etc. The provisions of this
Agreement may not be changed, waived or discharged orally, but
only by written instrument that shall make specific reference to
this Agreement and that shall be signed by the party against
which enforcement of such change, waiver or discharge is sought.
This Agreement shall become effective as of the close of
business on the date first written above, and unless terminated
as immediately hereinafter provided, shall continue in force for
three (3) years from the date of its execution and thereafter
from year to year, provided continuance after the three (3) year
period is approved at least annually by (i) the vote of a
majority of the Trustees of the Trust and (ii) the vote of a
majority of those Trustees of the Trust who are not interested
persons of the Trust, 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 may be terminated by a vote of the Board of
Trustees of the Trust or by a vote of a majority of the
outstanding voting securities of any one or more of the Trust's
Series, upon written notice to Rodney Square, in the event of a
material breach remaining uncured for thirty (30) days after due
written notification of such breach has been issued by the Trust
to, and received by, Rodney Square.
This Agreement may also be terminated by Rodney Square, upon
written notice to the Trust, in the event of a material breach
remaining uncured for sixty (60) days after due written
notification of such breach has been issued by Rodney Square to,
and received by, the Trust.
Termination shall not relieve the parties of duties and
obligations accrued prior to termination (including the duty to
pay accrued fees and expenses), nor those duties which by their
nature survive termination (such as the duty to maintain the
confidentiality of information, and the duty to transfer assets
and records to successors in an orderly and cooperative manner).
Upon the termination of this Agreement, the Trust shall pay
to Rodney Square such compensation as may be payable for the
period prior to the effective date of such termination, including
reimbursement for any out-of-pocket expenses reasonably incurred
by Rodney Square to such date. In the event that the Trust
designates a successor to any of Rodney Square's obligations
hereunder, Rodney Square shall, at the expense and direction of
the Trust, transfer to such successor all relevant books, records
and other data established or maintained by Rodney Square under
the foregoing provisions.
15. Audit, Inspection and Visitation. Rodney Square shall
make available during regular business hours all records and
other data created and maintained pursuant to this Agreement for
reasonable audit and inspection by the Trust or any person
retained by the Trust. Upon reasonable notice by the Trust,
Rodney Square shall make available during regular business hours
its facilities and premises employed in connection with its
performance of this Agreement for reasonable visitation by the
Trust, or any person retained by the Trust.
16. Notices. Any notice under this Agreement shall be given
in writing addressed and delivered or mailed, postage prepaid, to
the other party to this Agreement at its principal place of
business.
17.. Further Actions. Each Party agrees to perform such
further acts and execute such further documents as are necessary
to effectuate the purposes hereof.
18. Amendments. This Agreement or any part hereof may be
changed or waived only by an instrument in writing signed by the
party against which enforcement of such change or waiver is
sought.
19. Delegation. On thirty (30) days' prior written notice
to the Trust, Rodney Square may assign any part or all its rights
and delegate its duties hereunder to any wholly-owned direct or
indirect subsidiary of Wilmington Trust Company, provided that
(i) the delegate agrees with Rodney Square to comply with all
relevant provisions of the 1940 Act and applicable rules and
regulations; (ii) Rodney Square shall remain responsible for the
performance of all of its duties under this Agreement; (iii)
Rodney Square and such delegate shall promptly provide such
information as the Trust may request; and (iv) Rodney Square
shall respond to such questions as the Trust may ask, relative to
the delegation, including (without limitation) the capabilities
for the delegate.
20. Appointment of Agents. Neither this Agreement nor any
rights or obligations hereunder may be assigned by Rodney Square
without the written consent to the Trust. Rodney Square may
however, at any time or times in its discretion appoint (and may
at any time remove) other parties as its agent to carry out such
of the provisions of this Agreement as Rodney Square may from
time to time direct; provided, however, that the appointment of
any such agent shall not relieve Rodney Square of any of its
responsibilities or liabilities hereunder.
21. Miscellaneous.
a. Rodney Square acknowledges that it has received
notice of and accepts the limitations of liability set forth in
the Trust's Declaration of Trust. Rodney Square agrees that the
Trust's obligations hereunder shall be limited to the Trust, and
that Rodney Square shall have recourse solely against the assets
of the Series with respect to which the Trust's obligations
hereunder relate and shall have no recourse against the assets of
any other Series or against any shareholder, Trustee, officer,
employee, or agent of the Trust.
b. This Agreement embodies the entire agreement and
understanding between the parties thereto, and supersedes all
matters hereof, provided that the parties hereto may embody in
one or more separate documents their agreement, if any, with
respect to Written and/or Oral Instructions. 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
shall be deemed to be a contract made in Delaware and shall be
governed and construed according to the laws (without regard,
however, to laws as to conflicts of law) of the state of
Delaware. 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. This
Agreement shall be binding and shall inure to the benefits of the
parties hereto and their respective successors.
IN WITNESS WHEREOF the parties have caused this instrument
to be signed on their behalf by their respective officers
thereunto duly authorized all as of the date first written above.
KIEWIT INVESTMENT TRUST
By:
Ann McCulloch, President
RODNEY SQUARE MANAGEMENT
CORPORATION
By:
Martin L. Klopping,
President
ACCOUNTING SERVICES AGREEMENT
SCHEDULE A
KIEWIT INVESTMENT TRUST
FEE SCHEDULE
For the services Rodney Square provides under the Accounting
Services Agreement attached hereto, Kiewit Investment Trust (the
"Trust") agrees to pay Rodney Square, on behalf of each Series of
the Trust listed below, an annual minimum fee of $40,000, plus an
annual accounting services charge of 0.015% of the Series' total
assets in excess of $100 million.
Kiewit Money Market Series
Kiewit Government Money Market Series
Kiewit Short-Term Government Series
Kiewit Intermediate-Term Bond Series
Kiewit Tax-Exempt Series
Kiewit Equity Series
The foregoing annual accounting services charge shall be payable
monthly, in arrears, as soon as practicable after the last day of
each month, based on the average of the daily total assets of
each Series, as determined at the close of business on each day
throughout the month. The annual minimum fee will be payable at
the same time, but in twelve (12) equal monthly installments,
also in arrears.
In addition to the foregoing annual accounting services charge
and fee, the Trust shall either pay and advance, or promptly
reimburse (upon billing), Rodney Square its reasonable
out-of-pocket expenses incurred in the performance of its
responsibilities pursuant to the attached Agreement.
SCHEDULE B
KIEWIT INVESTMENT TRUST
AUTHORIZED PERSONS
The following persons have been duly authorized by the Board
of Trustees to give Oral and Written Instructions on behalf of
the Trust:
Ann McCulloch __________________________
Kenneth Gaskins __________________________
Gregg Williams __________________________
Brian Mosher __________________________
Exhibit No. 24(b)(9)(iii)
KIEWIT INVESTMENT TRUST
RODNEY SQUARE MANAGEMENT CORPORATION
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT made this 19th day of February,
1997, by and between Kiewit Investment Trust, a Delaware business
trust (the "Trust"), and Rodney Square Management Corporation, a
corporation organized under the laws of the State of Delaware
("Rodney Square"), having its principal place of business in
Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company;
WHEREAS, at the present time, the Trust consists of six
separate and distinct Series, Kiewit Money Market Series, Kiewit
Government Money Market Series; Kiewit Short-Term Government
Series, Kiewit Intermediate-Term Bond Series, Kiewit Tax-Exempt
Series and Kiewit Equity Series (individually, a "Series", and
collectively, the "Series");
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained in this Agreement, the Trust and Rodney
Square agree as follows:
1. Appointment. The Trust hereby appoints and employs
Rodney Square as agent to perform those services described in
this Agreement for the Trust. Rodney Square shall act under such
appointment and perform the obligations thereof upon the terms
and conditions hereinafter set forth and in accordance with the
principles of principal and agents enunciated by the common law.
2. Documents. The Trust has furnished Rodney Square with
copies properly certified or authenticated of each of the
following:
a. Resolutions of the Trust's Board of Trustees
authorizing the appointment of Rodney Square to provide certain
administration services to the Trust and approving this
Agreement;
b. Schedule B identifying and containing the signatures of
the Trust's officers and other persons authorized ("Authorized
Persons") to sign "Written Instructions" (as used in this
Agreement to mean written instructions delivered by hand, mail,
telegram, cable, telex or facsimile sending device and received
by Rodney Square, signed by two Authorized Persons) on behalf of
the Trust;
c. The Trust's Certificate of Trust filed with the
Secretary of the State of Delaware on January 23, 1997 and all
amendments thereto and restatements thereof;
d. The Trust's Agreement and Declaration of Trust and all
amendments thereto and restatements thereof;
e. The Trust's By-Laws and all amendments thereto and
restatements thereof (such By-Laws, as presently in effect and as
they shall from time to time be amended or restated, are herein
called "By-Laws");
f. The Investment Management Agreement between the Trust
and Kiewit Investment Management Corp. (the "Manager") with
respect to each Series, effective February 19, 1997;
g. The Accounting Services Agreement between the Trust and
Rodney Square dated February 19, 1997;
h. The Custodian Agreement between the Trust and
Wilmington Trust Company (the "Custodian") dated February 19,
1997;
i. The Trust's Notification of Registration filed pursuant
to Section 8(a) of the 1940 Act filed with the Securities and
Exchange Commission ("SEC") on ______________;
j. The Trust's Registration Statement on Form N-1A under
the 1940 Act (File No. ____________), as filed with the SEC, and
all amendments thereto;
k. If required, a copy of either (i) a filed notice of
eligibility to claim the exclusion from the definition of
"commodity pool operator" contained in Section 2(a)(1)(A) of the
Commodity Exchange Act ("CEA") that is provided in Rule 4.5 under
the CEA, together with all supplements as are required by the
Commodity Futures Trading Commission ("CFTC"), or (ii) a letter
which has been granted the Trust by the CFTC which states that
the Trust will not be treated as a "pool" as defined in Section
4.10(d) of the CFTC's General Regulations, or (iii) a letter
which has been granted the Trust by the CFTC which states that
CFTC will not take any enforcement action if the Trust does not
register as a "commodity pool operator."
The Trust will furnish Rodney Square from time to time
with copies, properly certified or authenticated, of all
additions, amendments or supplements to the foregoing, if any.
3. Series Administration. Subject to the direction and
control of the Board of Trustees (the "Trustees") of the Trust
and to the extent not otherwise the responsibility of, or
provided by, the Trust or other supply agents of the Trust,
Rodney Square shall provide the following administrative
services:
a. (i) office facilities (which may be in Rodney Square's
or its affiliates' own offices);
(ii) non-investment related statistical and research
data;
(iii) executive and administrative services;
(iv) stationery and office supplies at Trust expense;
(v) corporate secretarial services, such as the
preparation and distribution of materials
at Trust expense for meetings of the Trust's Board of
Trustees; and
(vi) Distribution of Trustees' and Officers'
questionnaires.
b. Prepare and file, if necessary, reports to partners of
the Trust and reports to the SEC, including post-effective
amendments to the Trust's registration statement, and Form N-SAR
filings;
c. Monitor the Trust's compliance with investment
restrictions and limitations imposed by the 1940 Act, and
regulations thereunder, and the fundamental and non-fundamental
investment policies and limitations set forth in the Prospectus
and SAI;
d. Prepare and distribute to appropriate parties notices
announcing distributions to Trust partners;
e. Prepare financial statements and footnotes and other
financial information with such frequency and in such format as
required to be included in reports to Trust partners and the SEC;
f. Provide personnel to serve as officers of the Trust if
so elected by the Trustees.
4. Expenses of the Trust. The Trust agrees that it will pay
all its expenses other than those expressly stated to be payable
by Rodney Square hereunder, which expenses payable by the Trust
shall include, without limitation:
a. Fees payable for investment advisory services provided
by the Trust's investment adviser;
b. Fees payable for services provided by the Trust's
independent public accountants;
c. Fees payable for accounting services;
d. The cost of obtaining quotations for calculating the
value of the assets of each Series;
e. Taxes levied against the Trust or any Series;
f. Brokerage fees, mark-ups and commissions in connection
with the purchase and sale of portfolio securities;
g. Costs, including the interest expense, of borrowing
money;
h. Costs and/or fees incident to holding meetings of the
Trust's Board of Trustees, filing of reports with regulatory
bodies, and maintenance of the Trust's corporate existence;
i. Legal fees and expenses;
j. Fees payable to, and expenses of, members of the
Trustees who are not "interested persons" of the Trust;
k Out-of-pocket expenses incurred in connection with the
provision of administration and custodial services;
l. Premiums payable on the fidelity bond required by
Section 17(g) of the 1940 Act, and any other premiums payable on
insurance policies related to the Trust's business and the
investment activities of its Series;
m. Fees, voluntary assessments and other expenses incurred
in connection with the Trust's membership in investment company
organizations; and
n. Such non-recurring expenses as may arise, including
actions, suits or proceedings to which the Trust is a party and
the legal obligation which the Trust may have to indemnify its
Trustees and officers with respect thereto.
5. Recordkeeping and Other Information. Rodney Square shall
create and maintain all necessary records in accordance with all
applicable laws, rules and regulations, including, but not
limited to, records required by Section 31(a) of the 1940 Act and
the rules thereunder, as the same may be amended from time to
time, pertaining to the various functions (described above)
performed by it and not otherwise created and maintained by
another party pursuant to contract with the Trust. All records
shall be the property of the Trust at all times and shall be
available for inspection and use by the Trust. Where applicable,
such records shall be maintained by Rodney Square for the periods
and in the places required by Rule 31a-2 under the 1940 Act.
6. Audit, Inspection and Visitation. Rodney Square shall
make available during regular business hours all records and
other data created and maintained pursuant to the foregoing
provisions of this Agreement for reasonable audit and inspection
by the Trust, any person retained by the Trust or any regulatory
agency having authority over the Trust. Upon reasonable notice
by the Trust, Rodney Square will make available during regular
business hours its facilities and premises employed in connection
with its performance of this Agreement for reasonable visitation
by the Trust, or any person retained by the Trust.
7. Compliance with Governmental Rules and Regulations.
Except as otherwise provided herein, the Trust assumes full
responsibility for ensuring that the Trust complies with all
applicable requirements of the 1933 Act, the Securities Exchange
Act of 1934, as amended (the "1934 Act"), the 1940 Act, the CEA
and any laws, rules and regulations of governmental authorities
having jurisdiction.
8. Compensation. For the performance of its obligations
under this Agreement, the Trust shall pay Rodney Square an
administrative fee with respect to each Series in accordance with
the fee arrangements described in Schedule A attached hereto, as
such schedule may be amended from time to time.
9. Appointment of Agents. Neither this Agreement nor any
rights or obligations hereunder may be assigned by Rodney Square
without the written consent of the Trust. Rodney Square may at
any time or times in its discretion appoint (and may at any time
remove) other parties as its agent to carry out such of the
provisions of this Agreement as Rodney Square may from time to
time direct; provided, however, that the appointment of any such
agent shall not relieve Rodney Square of any of its
responsibilities or liabilities hereunder.
10. Delegation. On thirty (30) days' prior written notice to
the Trust, Rodney Square may assign any part or all its rights
and delegate its duties hereunder to any affiliate, provided that
(i) the delegate agrees with Rodney Square to comply with all
relevant provisions of the 1940 Act and applicable rules and
regulations; (ii) Rodney Square shall remain responsible for the
performance of all of its duties under this Agreement; (iii)
Rodney Square and such delegate shall promptly provide such
information as the Trust may request; and (iv) Rodney Square
shall respond to such questions as the Trust may ask, relative to
the delegation, including (without limitation) the capabilities
of the delegate.
11. Use of Rodney Square's Name. The Trust shall not use the
name of Rodney Square or any of its affiliates in any Prospectus,
SAI, or other material relating to the Trust in a manner not
approved prior thereto in writing by Rodney Square; provided,
however, that Rodney Square shall approve all uses of its and its
affiliates' names that merely refer in accurate terms to their
appointments hereunder or that are required by the SEC or a state
securities commission; and further provided, that in no event
shall such approval be unreasonably withheld.
12. Use of Trust's Name. Neither Rodney Square nor any of
its affiliates shall use the name of the Trust or material
relating to the Trust on any forms (including any checks, bank
drafts or bank statements) for other than internal use in a
manner not approved prior thereto by the Trust; provided,
however, that the Trust shall approve all uses of its name that
merely refer in accurate terms to the appointment of Rodney
Square hereunder or that are required by the SEC or a state
securities commission; and further provided, that in no event
shall such approval be unreasonably withheld.
13. Liability of Rodney Square or Affiliates. Rodney Square
and its affiliates shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Trust in
connection with the matters to which this Agreement relates,
except to the extent of a loss resulting from willful
misfeasance, bad faith, negligence or reckless disregard of their
obligations and duties under this Agreement. Any person, even
though also an officer, director, employee, agent or
representative of Rodney Square or any of its affiliates who may
be or become an officer or director of the Trust, shall be
deemed, when rendering services to the Trust as such officer or
acting on any business of the Trust in such capacity (other than
services or business in connection with Rodney Square's duties
under this Agreement), to be rendering such services to or acting
solely for the Trust and not as an officer, director, employee,
agent or representative, or one under the control or direction of
Rodney Square or any of its affiliates, even though paid by one
of those entities.
14. Indemnification.
a. The Trust agrees to indemnify and hold harmless Rodney
Square, its directors, officers, employees, agents and
representatives (collectively "Representatives") from all taxes,
charges, expenses, assessments, claims and liabilities including,
without limitation, liabilities arising under the 1933 Act, the
1934 Act, the 1940 Act, and any applicable state and/or foreign
securities laws, or amendments thereto (the "Securities Laws"),
and expenses, including without limitation reasonable attorneys'
fees and disbursements, arising directly or indirectly from any
action or omission to act which Rodney Square takes (i) at the
request of or on the direction of or in reliance on the advice of
the Trust or (ii) upon oral or written instructions. Neither
Rodney Square nor any of its Representatives shall be indemnified
against any liability (or any expenses incident to such
liability) arising out of Rodney Square's or its Representatives'
own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
b. Rodney Square agrees to indemnify and hold harmless the
Trust from all taxes, charges, expenses, assessments, claims and
liabilities arising from Rodney Square's obligations pursuant to
this Agreement (including, without limitation, liabilities
arising under the Securities Laws) and expenses, including
(without limitation) reasonable attorneys' fees and disbursements
arising directly or indirectly out of Rodney Square's or its
Representatives' own willful misfeasance, bad faith, negligence
or reckless disregard of its duties and obligations under this
Agreement.
c. In order that the indemnification provisions contained
in this Section 14 shall apply, upon the assertion of a claim for
which either party may be required to indemnify the other, the
party seeking indemnification shall promptly notify the other
party of such assertion, and shall keep the other party advised
with respect to all developments concerning such claim. The
party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense
of such claim. The party seeking indemnification shall in no
case confess any claim or make any compromise in any case in
which the other party may be required to indemnify it except with
the other party's prior written consent.
15. Amendments. Rodney Square and the Trust shall regularly
consult with each other regarding Rodney Square's performance of
its obligations and its compensation under the foregoing
provisions. In connection therewith, the Trust shall submit to
Rodney Square at a reasonable time in advance of filing with the
SEC copies of any amended or supplemented registration statement
of the Trust (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 Trust. Any change in
such materials that would require any material change in Rodney
Square'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 to Rodney Square of performing its obligations hereunder by
more than an insubstantial amount, Rodney Square shall be
entitled to receive reasonable compensation therefor.
16. Duration, Termination, etc. The provisions of this
Agreement may not be changed, waived or discharged orally, but
only by written instrument that shall make specific reference to
this Agreement and that shall be signed by the party against
which enforcement of such change, waiver or discharge is sought.
This Agreement shall become effective as of the close of
business on the date first written above, and unless terminated
as immediately hereinafter provided, shall continue in force for
three (3) years from the date of its execution and thereafter
from year to year, provided continuance after the three (3) year
period is approved at least annually by (i) the vote of a
majority of the Trustees of the Trust and (ii) the vote of a
majority of those Trustees of the Trust who are not interested
persons of the Trust, and who are not parties to this Agreement
or interested persons of any party, cast at a meeting called for
the purpose of voting on the approval.
This Agreement may be terminated by a vote of the Board
of Trustees of the Trust, or by a vote of a majority of the
outstanding voting securities of any one or more of the Trust's
Series, upon written notice to Rodney Square, in the event of a
breach remaining uncured for thirty (30) days after written
notification of such breach has been issued by the Trust to, and
received by, Rodney Square.
This Agreement may also be terminated by Rodney Square,
upon written notice to the Trust, in the event of a breach
remaining uncured for sixty (60) days after the written
notification of such breach has been issued by Rodney Square to,
and received by, the Trust.
Termination shall not relieve the parties of duties and
obligations accrued prior to termination (including the duty to
pay accrued fees and expenses), nor those duties which by their
nature survive termination (such as the duty to maintain the
confidentiality of information, and the duty to transfer assets
and records to successors in an orderly and cooperative manner).
Upon the termination of this Agreement, the Trust shall
pay to Rodney Square such compensation as may be payable for the
period prior to the effective date of such termination, including
reimbursement for any out-of-pocket expenses reasonably incurred
by Rodney Square to such date. In the event that the Trust
designates a successor to any of Rodney Square's obligations
hereunder, Rodney Square shall, at the expense and direction of
the Trust, transfer to such successor all relevant books, records
and other data established or maintained by Rodney Square under
the foregoing provisions.
17. Audit, Inspection and Visitation. Rodney Square shall
make available during regular business hours all records and
other data created and maintained pursuant to this Agreement for
reasonable audit and inspection by the Trust or any person
retained by the Trust. Upon reasonable notice by the Trust,
Rodney Square shall make available during regular business hours
its facilities and premises employed in connection with its
performance of this Agreement for reasonable visitation by the
Trust, or any person retained by the Trust.
18. Notice. Any notice under this Agreement shall be given
in writing addressed and delivered or mailed, postage prepaid, to
the other party to this Agreement at its principal place of
business.
19. 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.
20. 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.
21. Shareholder Liability. Rodney Square acknowledges that
it has received notice of and accepts the limitations of
liability set forth in the Trust's Agreement and Declaration of
Trust and By-Laws. Rodney Square agrees that the Trust's
obligations hereunder shall be limited to the Trust, and that
Rodney Square shall have recourse solely against the assets of
the Series with respect to which the Trust's obligations
hereunder relate and shall have no recourse against the assets of
any other Series or against any shareholder, Trustee, officer,
employee, or agent of the Trust.
22. 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 duly executed this
Agreement as of the day and year first above written.
KIEWIT INVESTMENT TRUST
By:
_____________________________
Ann McCulloch, President
RODNEY SQUARE MANAGEMENT
CORPORATION
By:
_____________________________
Martin L. Klopping,
President
ADMINISTRATION AGREEMENT
SCHEDULE A
KIEWIT INVESTMENT TRUST
FEE SCHEDULE
For the services Rodney Square provides under the Administration
Agreement attached hereto, Kiewit Investment Trust (the "Trust")
agrees to pay Rodney Square, on behalf of each Series of the
Trust listed below, an annual minimum fee of $50,000, plus an
annual administration services charge of 0.015% of the Series'
total assets in excess of $125 million.
Kiewit Money Market Series
Kiewit Government Money Market Series
Kiewit Short-Term Government Series
Kiewit Intermediate-Term Bond Series
Kiewit Tax-Exempt Series
Kiewit Equity Series
The foregoing annual administration services charge shall be
payable monthly, in arrears, as soon as practicable after the
last day of each month, based on the average of the daily total
assets of each Series, as determined at the close of business on
each day throughout the month. The annual minimum fee will be
payable at the same time, but in twelve (12) equal monthly
installments, also in arrears.
In addition to the foregoing annual administration services
charge and fee, the Trust shall either pay and advance, or
promptly reimburse (upon billing), Rodney Square its reasonable
out-of-pocket expenses incurred in the performance of its
responsibilities pursuant to the attached Agreement.
SCHEDULE B
KIEWIT INVESTMENT TRUST
AUTHORIZED PERSONS
The following persons have been duly authorized by the Board
of Trustees to give Oral and Written Instructions on behalf of
the Trust:
Ann McCulloch __________________________
Kenneth Gaskins __________________________
Gregg Williams __________________________
Brian Mosher
__________________________
Exhibit No. 24(b)(13)
SUBSCRIPTION AGREEMENT
February 19, 1997
Kiewit Investment Trust
1000 Kiewit Plaza
Omaha, NE 68131-3374
Gentlemen:
Kiewit Investment Management Corp. hereby agrees to purchase
6,000 shares of beneficial interest (the "Shares") of KIEWIT
INVESTMENT TRUST (the "Trust") at $1 per share for an aggregate
of $6,000. Such purchase is allocated among the Trust's six
series of shares as follows: 1,000 shares of each of the Kiewit
Money Market Series, Kiewit Government Money Market Series,
Kiewit Short-Term Government Series, Kiewit Intermediate-Term
Bond Series, Kiewit Tax-Exempt Series and Kiewit Equity Series.
The Trust, by its acknowledgement below, acknowledges receipt of
funds in the amount of $6,000 in full payment of the Shares.
I further advise that in making this purchase, which
represents the initial capital of KIEWIT INVESTMENT TRUST, such
purchase is for investment purposes only and without any present
intention of further distributing such shares or presenting them
for redemption or repurchase.
Kiewit Investment Management Corp.
BY:
Attest: KIEWIT INVESTMENT TRUST
BY:/s/Ann C. McCulloch
Ann C. McCulloch, President and
Chairman of the Board of Trustees
/s/Kenneth D. Gaskins
Kenneth D. Gaskins
