1933 Act Registration No. 33-16905
1940 Act Registration No. 811-5309
As filed with the Securities and Exchange Commission on May 15, 1995
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [x]
Pre-Effective Amendment No. __ [ ]
Post-Effective Amendment No. 21[x]
and/or
REGISTRATION STATEMENT UNDER THE INVESTMENT
COMPANY ACT OF 1940 [x]
Amendment No. 22
FIRST AMERICAN INVESTMENT FUNDS, INC.
(Exact Name of Registrant as Specified in Charter)
680 EAST SWEDESFORD ROAD, WAYNE, PENNSYLVANIA 19087
(Address of Principal Executive Offices) (Zip Code)
(610) 254-1924
(Registrant's Telephone Number, including Area Code)
DAVID LEE
C/O SEI CORPORATION, 680 EAST SWEDESFORD ROAD, WAYNE, PENNSYLVANIA 19087
(Name and Address of Agent for Service)
Copies to:
Kathryn Stanton, Esq. Michael J. Radmer, Esq.
SEI Corporation James D. Alt, Esq.
680 East Swedesford Road Dorsey & Whitney
Wayne, Pennsylvania 19087 220 South Sixth Street
Minneapolis, Minnesota 55402
It is proposed that this filing shall become effective (check appropriate box):
[x] immediately upon filing pursuant to paragraph (b) of Rule 485
[ ] on (date) pursuant to paragraph (b) of Rule 485
[ ] 60 days after filing pursuant to paragraph (a)(i) of Rule 485
[ ] on (date) pursuant to paragraph (a)(i) of Rule 485
[ ] 75 days after filing pursuant to paragraph (a)(ii) of Rule 485
[ ] on (date) pursuant to paragraph (a)(ii) of Rule 485
Registrant has registered an indefinite number or amount of securities under the
Securities Act of 1933 pursuant to Rule 24f-2 under the Investment Company Act
of 1940. A Rule 24f-2 Notice was filed with the Securities and Exchange
Commission on November 16, 1994.
FIRST AMERICAN INVESTMENT FUNDS, INC.
LIMITED VOLATILITY STOCK FUND
CROSS REFERENCE SHEET FOR ITEMS REQUIRED BY FORM N-1A
NOTE: PART A of this Registration Statement consists of six
Prospectuses, two of which relate to Limited Volatility Stock Fund. PART B of
this Registration Statement consists of one Statement of Additional Information,
as supplemented by this filing.
ITEM NUMBER OF FORM N-1A
PART A CAPTION IN PROSPECTUS
RETAIL CLASSES PROSPECTUS
1 Cover Page
2 Summary; Fees and Expenses
3 Not Applicable
4 The Fund; Investment Objective and Policies; Special Investment
Methods
5 Management; Distributor
5A Not Applicable
6 Fund Shares; Investing in the Fund; Federal Income Taxes
7 Distributor; Investing in the Fund; Determining the Price of
Shares
8 Redeeming Shares
9 Not Applicable
INSTITUTIONAL CLASS PROSPECTUS
1 Cover Page
2 Summary; Fees and Expenses
3 Not Applicable
4 The Fund; Investment Objectives and Policies; Special Investment
Methods
5A Not Applicable
5 Management; Distributor
6 Fund Shares; Purchases and Redemptions of Shares; Federal Income
Taxes
7 Distributor; Purchases and Redemptions of Shares
8 Purchases and Redemptions of Shares
9 Not Applicable
CAPTION IN STATEMENT
PART B OF ADDITIONAL INFORMATION
10 Cover Page
11 Table of Contents
12 General Information
13 Additional Information Concerning Fund Investments; Investment
Restrictions
14 Directors and Executive Officers
15 Capital Stock
16 Investment Advisory and Other Services
17 Portfolio Transactions and Allocation of Brokerage
18 Not Applicable
19 Net Asset Value and Public Offering Price
20 Taxation
21 Investment Advisory and Other Services
22 Fund Performance
*23 Financial Statements
__________________
* Filed herewith.
PART A
FIRST AMERICAN INVESTMENT FUNDS, INC.
EQUITY FUNDS - INSTITUTIONAL CLASS
SUPPLEMENT DATED MAY 15, 1995 TO PROSPECTUS
DATED JANUARY 31, 1995
This Supplement provides information with respect to the Limited Volatility
Stock Fund not contained in the Prospectus for the Institutional Class of the
Equity Funds of First American Investment Funds, Inc. and should be retained and
read in conjunction with such Prospectus.
FINANCIAL HIGHLIGHTS
(Unaudited)
For the period ended March 31, 1995
For a share outstanding throughout the period
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
REALIZED
AND
NET ASSET UNREALIZED DIVIDENDS NET ASSET RATIO OF
VALUE NET GAINS OR FROM NET DISTRIBUTIONS VALUE NET ASSETS EXPENSES TO
BEGINNING INVESTMENT (LOSSES) ON INVESTMENT FROM END OF TOTAL END OF AVERAGE
OF PERIOD INCOME INVESTMENTS INCOME CAPITAL GAINS PERIOD RETURN PERIOD (000) NET ASSETS
LIMITED VOLATILITY STOCK
INSTITUTIONAL CLASS
1995(1) $10.00 $0.11 $0.61 $(0.10) $-- $10.62 7.28%+ $15,642 0.75%
</TABLE>
Financial Highlights (table continued)
RATIO OF
RATIO OF EXPENSES TO
INVESTMENT AVERAGE
INCOME TO NET ASSETS
AVERAGE (EXCLUDING PORTFOLIO
NET ASSETS WAIVERS) TURNOVER RATE
LIMITED VOLATILITY STOCK
INSTITUTIONAL CLASS
1995(1) 2.84% 1.33% 20%
+ Returns, excluding sales charges, are for the period indicated and have not
been annualized.
* All ratios for the period have been annualized.
(1) Commenced operations on November 15, 1994. All ratios for the period have
been annualized.
FIRST AMERICAN INVESTMENT FUNDS, INC.
EQUITY FUNDS - RETAIL CLASS
SUPPLEMENT DATED MAY 15, 1995 TO PROSPECTUS
DATED JANUARY 31, 1995
This Supplement provides information with respect to the Limited Volatility
Stock Fund (the "Fund") not contained in the Prospectus for the Retail Class of
the Equity Funds of First American Investment Funds, Inc. and should be retained
and read in conjunction with such Prospectus.
The Retail Class A and Class B shares of the Fund were not in operation as of
the date of this Supplement. The Financial Highlights for the Institutional
Class C shares of the Fund have been provided below. Class A and Class B shares
are subject to sales charges and fees that are not applicable to Class C shares.
FINANCIAL HIGHLIGHTS
(Unaudited)
For the period ended March 31, 1995
For a share outstanding throughout the period
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
REALIZED
AND
NET ASSET UNREALIZED DIVIDENDS NET ASSET RATIO OF
VALUE NET GAINS OR FROM NET DISTRIBUTIONS VALUE NET ASSETS EXPENSES TO
BEGINNING INVESTMENT (LOSSES) ON INVESTMENT FROM END OF TOTAL END OF AVERAGE
OF PERIOD INCOME INVESTMENTS INCOME CAPITAL GAINS PERIOD RETURN PERIOD (000) NET ASSETS
LIMITED VOLATILITY STOCK
INSTITUTIONAL CLASS
1995(1) $10.00 $0.11 $0.61 $(0.10) $-- $10.62 7.28%+ $15,642 0.75%
</TABLE>
Financial Highlights (table continued)
RATIO OF
RATIO OF EXPENSES TO
INVESTMENT AVERAGE
INCOME TO NET ASSETS
AVERAGE (EXCLUDING PORTFOLIO
NET ASSETS WAIVERS) TURNOVER RATE
LIMITED VOLATILITY STOCK
INSTITUTIONAL CLASS
1995(1) 2.84% 1.33% 20%
+ Returns, excluding sales charges, are for the period indicated and have not
been annualized.
* All ratios for the period have been annualized.
(1) Commenced operations on November 15, 1994. All ratios for the period have
been annualized.
PROSPECTUSES
The prospectuses dated January 31, 1995, of the Registrant (as filed
pursuant to Rule 497(c) under the Securities Act of 1933, as amended, on
February 1, 1995) are hereby incorporated by reference to such filing with the
Securities and Exchange Commission.
PART B
SUPPLEMENT, DATED MAY 15, 1995
TO
STATEMENT OF ADDITIONAL INFORMATION,
DATED JANUARY 31, 1995
LIMITED VOLATILITY STOCK FUND
A SERIES OF FIRST AMERICAN INVESTMENT FUNDS, INC.
This Supplement to Statement of Additional Information is filed by
means of a Post-Effective Amendment, for the purposes of filing financial
statements for the Limited Volatility Stock Fund (the "Fund") within four to six
months of the effectiveness of Registrant's Securities Act of 1933, as amended,
Registration Statement with regard to the Fund.
This Statement of Additional Information, as supplemented, is not a
prospectus. This Statement of Additional Information, as supplemented, relates
to the Prospectuses dated January 31, 1995, and should be read in conjunction
therewith. A copy of the Prospectuses may be obtained from the Fund at First
American Investment Funds, Inc., 680 East Swedesford Road, Wayne, PA 19087.
STATEMENT OF NET ASSETS - MARCH 31, 1995 (Unaudited)
LIMITED VOLATILITY STOCK FUND
<TABLE>
<CAPTION>
Description Shares Value (000)
<S> <C> <C>
COMMON STOCKS - 86.2%
AEROSPACE & DEFENSE--2.4%
Lockheed Martin 7,000 $ 370
BANKS--6.5%
Bank of New York 10,000 329
Boatmen's Bancshares 11,300 341
Wachovia 9,600 341
1,011
CHEMICALS--2.1%
PPG Industries 8,500 321
COMMERCIAL SERVICES--2.1%
Rollins 12,050 331
COMPUTERS & SERVICES--2.2%
IBM 4,200 344
DRUGS--9.3%
American Home Products 5,100 363
Eli Lilly 5,000 365
Mallinckrodt Group 10,800 365
Merck 8,400 358
1,451
ELECTRICAL SERVICES--7.9%
Delmarva Power & Light 16,200 320
Montana Power 13,700 312
Rochester Gas & Electric 13,500 278
Southwestern Public Service 11,600 323
1,233
FOOD, BEVERAGE & TOBACCO--4.4%
Hershey Foods 6,500 332
UST 11,100 353
685
HOUSEHOLD PRODUCTS--2.4%
Clorox 6,300 378
INSURANCE--2.2%
Aon 9,650 352
MACHINERY--6.5%
Dresser Industries 14,800 315
General Electric 6,200 336
McDermott International 13,300 363
1,014
MEDICAL PRODUCTS & SERVICES--2.4%
Baxter International 11,600 380
METALS & MINING--1.4%
Vulcan Materials 3,800 219
MULTI-INDUSTRY--2.2%
Harsco 8,000 352
OIL - INTERNATIONAL--8.1%
Amoco 7,300 464
Chevron 9,100 437
Mobil 4,000 371
1,272
PETROLEUM & FUEL PRODUCTS--2.2%
Questar 11,700 351
PRECIOUS METALS--2.4%
Barrick Gold 14,800 370
Santa Fe Pacific Gold* 300 4
374
PRINTING & PUBLISHING--1.7%
Banta 8,100 267
RETAIL--6.3%
Albertson's 10,800 347
Luby's Cafeterias 14,000 298
J.C. Penney 7,500 337
982
SEMI-CONDUCTORS/INSTRUMENTS--1.3%
Intel 2,400 204
STEEL & STEEL WORKS--4.0%
Carpenter Technology 5,600 323
Phelps Dodge 5,200 296
619
TELEPHONES & TELECOMMUNICATION--2.3%
U.S. West 8,800 352
TRUCKING--1.4%
Yellow 14,100 226
WHOLESALE--2.5%
Genuine Parts 9,875 394
TOTAL COMMON STOCKS
(Cost $12,618) 13,482
Description Par(000) Value (000)
U.S. TREASURY OBLIGATIONS--9.6%
U.S. Treasury Bill
5.480%, 04/06/95 $ 1,504 $ 1,503
TOTAL U.S. TREASURY OBLIGATIONS
(Cost $1,500) 1,503
MONEY MARKET--2.8%
Aim Short Term Prime Obligation
6.120%, 04/07/95 (A) 443,532 444
TOTAL MONEY MARKET
(Cost $444) 444
TOTAL INVESTMENTS--98.6%
(Cost $14,561) 15,429
OTHER ASSETS AND LIABILITIES--1.4%
Other Assets and Liabilities, Net 213
NET ASSETS:
Portfolio shares--Institutional Class
($.0001 par value--2 billion authorized)
based on 1,472,550 outstanding shares 14,728
Undistributed net investment income 4
Accumulated net realized gain on
investments 42
Net unrealized appreciation of
investments 868
TOTAL NET ASSETS:--100.0% $15,642
NET ASSET VALUE, OFFERING PRICE, AND
REDEMPTION PRICE PER SHARE--INSTITUTIONAL
CLASS $ 10.62
</TABLE>
* Non-income producing security
(A) Variable Rate Security--the rate reported on the Statement of Net
Assets is the rate in effect as of March 31, 1995. The date shown is
the longer of the reset or demand date.
The accompanying notes are an integral part of the financial statements.
STATEMENTS OF OPERATIONS (000)
For the period ended March 31, 1995
<TABLE>
<CAPTION>
LIMITED
VOLATILITY
STOCK
FUND (1)
<S> <C>
INVESTMENT INCOME:
Interest $ 6
Dividends 162
Total investment income 168
EXPENSES:
Investment advisory fees 33
Administrator fees 19
Transfer agent fees 3
Custodian fees 1
Registration fees 4
Professional fees 1
Printing 1
TOTAL EXPENSES 62
LESS: EXPENSES WAIVED OR ABSORBED (27)
TOTAL NET EXPENSES 35
INVESTMENT INCOME--NET 133
REALIZED AND UNREALIZED GAINS
ON INVESTMENTS--NET:
Net realized gain on investments 42
Net change in unrealized appreciation
of investments 868
NET GAIN ON INVESTMENTS 910
NET INCREASE IN NET ASSETS RESULTING FROM OPERATIONS $ 1,043
</TABLE>
(1) The Limited Volatility Stock Fund commenced operations on November 15,
1994.
STATEMENTS OF CHANGES IN NET ASSETS (000)
<TABLE>
<CAPTION>
LIMITED
VOLATILITY
INDEX FUND
11/15/94 (1)
to
3/31/95
<S> <C>
OPERATIONS:
Investment income--net $ 133
Net realized gain on investments 42
Net change in unrealized appreciation of investments 868
Net increase in net assets resulting from operations 1,043
DISTRIBUTIONS TO SHAREHOLDERS FROM:
Investment income--net:
Institutional class (129)
Total distributions (129)
CAPITAL SHARE TRANSACTIONS (1):
Institutional class:
Proceeds from sales 14,680
Reinvestment of distributions 98
Payments for redemptions (50)
Increase in net assets from Institutional class
transactions 14,728
Increase in net assets from capital share transactions 14,728
Total increase in net assets 15,642
NET ASSETS AT BEGINNING OF PERIOD --
NET ASSETS AT END OF PERIOD (2) $15,642
(1)Capital share transactions:
Institutional class:
Proceeds from sales 1,468
Reinvestment of distributions 10
Payments for redemptions (5)
Total Institutional class transactions 1,473
NET INCREASE IN CAPITAL SHARES 1,473
</TABLE>
(1)The Limited Volatility Stock Fund commenced operations on November 15,
1994.
The accompanying notes are an integral part of the financial statements.
FINANCIAL HIGHLIGHTS
(Unaudited)
For the period ended March 31, 1995
For a share outstanding throughout the period
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
REALIZED
AND
NET ASSET UNREALIZED DIVIDENDS NET ASSET RATIO OF
VALUE NET GAINS OR FROM NET DISTRIBUTIONS VALUE NET ASSETS EXPENSES TO
BEGINNING INVESTMENT (LOSSES) ON INVESTMENT FROM END OF TOTAL END OF AVERAGE
OF PERIOD INCOME INVESTMENTS INCOME CAPITAL GAINS PERIOD RETURN PERIOD (000) NET ASSETS
LIMITED VOLATILITY STOCK
INSTITUTIONAL CLASS
1995(1) $10.00 $0.11 $0.61 $(0.10) $-- $10.62 7.28%+ $15,642 0.75%
</TABLE>
Financial Highlights (table continued)
RATIO OF
RATIO OF EXPENSES TO
INVESTMENT AVERAGE
INCOME TO NET ASSETS
AVERAGE (EXCLUDING PORTFOLIO
NET ASSETS WAIVERS) TURNOVER RATE
LIMITED VOLATILITY STOCK
INSTITUTIONAL CLASS
1995(1) 2.84% 1.33% 20%
+ Returns, excluding sales charges, are for the period indicated and have not
been annualized.
* All ratios for the period have been annualized.
(1) Commenced operations on November 15, 1994. All ratios for the period have
been annualized.
Notes To Financial Statements - March 31,1995 Unaudited
1 ORGANIZATION
First American Investment Funds, Inc. (FAIF) is registered under the Investment
Company Act of 1940, as amended, as an open-end, management investment company.
FAIF presently includes a series of twenty-two funds which includes the Limited
Volatility Stock Fund (the Fund). The Fund commenced operations on November 15,
1994. The other funds in the series which are not being reported at this time
include Limited Term Income Fund, Intermediate Term Income Fund, Fixed Income
Fund, Intermediate Government Bond Fund, Mortgage Securities Fund, Intermediate
Tax Free Fund, Colorado Intermediate Tax Free Fund, Minnesota Insured
Intermediate Tax Free Fund, Asset Allocation Fund, Balanced Fund, Equity Index
Fund, Stock Fund, Special Equity Fund, Regional Equity Fund, Emerging Growth
Fund, Technology Fund, International Fund, Limited Term Tax Free Fund, Equity
Income Fund, Diversified Growth Fund and Real Estate Securities Fund. The assets
of each fund are segregated, and a shareholder's interest is limited to the fund
in which shares are held. FAIF's articles of incorporation permit the Board of
Directors to create additional funds in the future.
2 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The significant accounting policies followed by the the Fund are as follows:
Security Valuation - Investment securities of the Fund which are listed on a
securities exchange for which market quotations are available are valued by an
independent pricing service at the last quoted sales price for such securities
on each business day. If there is no such reported sale, these securities and
unlisted securities for which market quotations are readily available are valued
at the most recent quoted bid price.
Security Transactions and Investment Income - The Fund records security
transactions on the trade date, the date the securities are purchased or sold.
Interest income is recorded on the accrual basis. Security gains and losses are
determined on the basis of identified cost, which is the same basis used for
federal income tax purposes.
Distributions to Shareholders - The Fund declares and pays income dividends
monthly. The Fund pays realized long term capital gain distributions, if any, at
least once a year. Cash payments or reinvestments in additional shares are made
at the net asset value at the close of business on the payable date.
Federal Taxes - It is the Fund's intention to continue to qualify as a regulated
investment company and distribute all of its taxable income. Accordingly, no
provision for Federal Income Taxes is required.
Expenses - Expenses that are directly related to the Fund are charged directly
to the Fund. Other operating expenses of FAIF are prorated to the Fund on the
basis of relative net asset value.
3 INVESTMENT SECURITY TRANSACTIONS
During the period November 15, 1994 through March 31, 1995, the Fund made
purchases of long-term securities in the amount of $14,899,000 and had proceeds
from sales of long-term securities in the amount of $2,323,000. The Fund had no
purchases or sales of long-term U.S.
Government securities.
4 FEES AND EXPENSES
Pursuant to an investment advisory agreement (the Agreement), First Bank
National Association (the Adviser) manages the Fund's assets and furnishes
related office facilities, equipment, research and personnel. The Agreement
requires the Fund to pay the Adviser a monthly fee based upon average daily
net assets. The fee for the Fund is equal to an annual rate of .70% of the
Fund's average daily net assets. During the period October 1, 1994 through March
31, 1995 the Advisor waived $27,000 of their fees. SEI Financial Services
Company (SFS) and SEI Financial Management Corporation, (SFM) serve as
distributor and administrator of the Fund, respectively. SFM provides
administrative services, including certain accounting, legal and shareholder
services, at an annual rate of .12% of the Fund's average daily net assets, with
a minimum annual fee of $50,000.
In addition to the investment advisory and management fees, custodian fees,
distribution fees, administrator and transfer agent fees, the Fund is
responsible for paying most other operating expenses including organization
costs, fees and expenses of outside directors, registration fees, printing and
shareholder reports, legal, auditing, insurance and other miscellaneous
expenses.
Certain directors and officers of FAIF are also officers of the Administrator
and/or Distributor. Such officers and directors are paid no fees by FAIF for
serving in their respective roles.
Through a separate contractual agreement, First Trust National Association, an
affiliate of the Adviser, serves as the Fund's custodian.
Legal fees and expenses are paid to a law firm of which the Secretary of the
Fund is a partner.
Effective April 14, 1995, Supervised Service Comapny was acquired by DST
Systems, Inc. DST Systems, Inc. now provides transfer agent services for
the Fund.
5 DEFERRED ORGANIZATIONAL COSTS
The Fund incurred organizational expenses in connection with its start-up and
initial registration. These costs are being amortized over 60 months on a
straight-line basis.
PART C
OTHER INFORMATION
Part C of Post-Effective Amendment No. 21 to the Registration Statement
is hereby incorporated by reference, except that Item 24 is filed herewith in
accordance with Rule 8b-32 under the Investment Company Act of 1940, as amended.
Item 24. Financial Statements and Exhibits
(a) An audited balance sheet for the Limited Volatility Stock Fund is
included as the Supplement to the Statement of Additional
Information filed herewith.
(b) Exhibits
* (1) Articles of Incorporation, as amended and supplemented
through January 1995.
* (2) Bylaws, as amended through January 1995.
(3) Not applicable.
* (4) Specimen form of Common Stock Certificate.
* (5) (a) Investment Advisory Agreement dated April 2, 1991,
between Registrant and First Bank National Association,
as amended and supplemented through August 1994.
* (5) (b) Sub-Advisory Agreement relating to International
Fund between First Bank National Association and Marvin
& Palmer Associates, Inc.
* (6) (a) Distribution Agreement [Class A and Class C] dated
February 10, 1994 between Registrant and SEI Financial
Services Company.
* (6) (b) Distribution and Service Agreement [Class B] dated
August 1, 1994, as amended September 14, 1994 between
Registrant and SEI Financial Services Company.
* (6) (c) Form of Dealer Agreement.
(7) Not applicable.
* (8) Custodian Agreement dated September 20, 1993, between
Registrant and First Trust National Association, as
supplemented through August 1994.
(9) (a) Administration Agreement dated as of January 1, 1995
between Registrant and SEI Financial Management
Corporation.
* (9) (b) Transfer Agency Agreement dated as of March 31,
1994, between Registrant and Supervised Service
Company, Inc.
* (10) (a) Opinion and Consent of D'Ancona & Pflaum dated
November 10, 1987.
* (10) (b) Opinion and Consent of Dorsey & Whitney.
* (11) (a) Consent of KPMG Peat Marwick LLP.
* (11) (b) Opinion and Consent of Dorsey & Whitney dated
November 25, 1991.
(12) Not applicable.
(13) Not applicable.
* (14) Individual Retirement Plan Materials.
* (15) (a) Form of Distribution Plan [Class A].
* (15) (b) Class B Distribution Plan.
* (15) (c) Service Plan [Class B].
(16) Not applicable.
* (17) Financial Data Schedule (See Exhibit 27).
(18) Not applicable.
* (19) Powers of Attorney of Directors Dayton, Eastman, Fish,
Kedrowski, Strauss, Stringer and Veit.
* (27) Financial Data Schedule.
* Filed herewith via EDGAR in accordance with Rule 8b-32 under the Investment
Company Act of 1940, as amended.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, as amended, the Registrant certifies that it has
duly caused this Post-Effective Amendment No. 21 to Registration Statement No.
33-16905 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wayne, Commonwealth of Pennsylvania, on the 15th day
of May, 1995.
FIRST AMERICAN INVESTMENT FUNDS, INC.
ATTEST: /s/ Stephen Meyer By: /s/ David Lee
Stephen Meyer David Lee, President
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the Registration Statement has been signed below by the following
persons in the capacity and on the dates indicated.
Signature Title Date
/s/ Stephen Meyer Controller (Principal May 15, 1995
Stephen Meyer Financial and Accounting
Officer)
* Director May 15, 1995
Robert J. Dayton
* Director May 15, 1995
Welles B. Eastman
* Director May 15, 1995
Irving D. Fish
* Director May 15, 1995
Leonard W. Kedrowski
* Director May 15, 1995
Joseph D. Strauss
* Director May 15, 1995
Virginia L. Stringer
* Director May 15, 1995
Gae B. Veit
* By: /s/ David Lee
David Lee
Attorney in Fact
EXHIBIT 1
FINAL
ARTICLES OF AMENDMENT AND RESTATEMENT
OF
FIRST AMERICAN INVESTMENT FUNDS, INC.
First American Investment Funds, Inc., a Maryland corporation, having
its principal office in Baltimore, Maryland (the "Corporation"), hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: The Articles of Incorporation of the Corporation are amended and
restated in their entirety to read as follows:
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
FIRST AMERICAN INVESTMENT FUNDS, INC.
ARTICLE I
NAME
The name of the corporation (hereinafter referred to as the
"Corporation") is "First American Investment Funds, Inc."
ARTICLE II
PURPOSES AND POWERS
The purposes for which the Corporation is formed are to engage in,
conduct, operate and carry on the business of an open-end management investment
company under the Investment Company Act of 1940 (including any amendment
thereof or other applicable Act of Congress hereafter enacted) (hereinafter
called the "1940 Act"), and to do any and all acts or things as are necessary,
convenient, appropriate, incidental or customary therewith.
ARTICLE III
PRINCIPAL OFFICE AND RESIDENT AGENT
The address of the principal office of the corporation in the State of
Maryland is:
First American Investment Funds, Inc.
c/o The Corporation Trust Incorporated
32 South Street
Baltimore, Maryland 21202
The name and address of the resident agent of the Corporation in the
State of Maryland is:
The Corporation Trust Incorporated
32 South Street
Baltimore, Maryland 21202
The resident agent is a corporation organized under the laws of the
State of Maryland.
ARTICLE IV
CAPITAL STOCK
Section 1. (a) The total number of shares of capital stock that the
Corporation has authority to issue is one hundred twenty billion
(120,000,000,000) shares of common stock (individually, a "Share" and,
collectively, the "Shares"), of the par value of $.0001 per Share and of the
aggregate par value of twelve million dollars ($12,000,000). Unless otherwise
prohibited by law, so long as the Corporation is registered as an open-end
investment company under the 1940 Act, the Board of Directors shall have the
power and authority, without the approval of the holders of any outstanding
Shares, to increase or decrease the number of shares of capital stock or the
number of shares of capital stock of any class or series that the Corporation
has authority to issue.
(b) Of the total authorized Shares, two billion (2,000,000,000) Shares
shall constitute the class designated as "Class A Common Shares" (formerly
referred to as "government bond fund shares"), two billion (2,000,000,000)
Shares shall constitute the class designated as "Class B Common Shares"
(formerly referred to as "fixed income fund shares"), two billion
(2,000,000,000) Shares shall constitute the class designated as "Class C Common
Shares" (formerly referred to as "municipal bond fund shares"), two billion
(2,000,000,000) Shares shall constitute the class designated as "Class D Common
Shares" (formerly referred to as "stock fund shares"), two billion
(2,000,000,000) Shares shall constitute the class designated as "Class E Common
Shares" (formerly referred to as "special equity fund shares"), two billion
(2,000,000,000) Shares shall constitute the class designated as "Class F Common
Shares" (formerly referred to as "asset allocation fund shares"), two billion
(2,000,000,000) Shares shall constitute the class designated as "Class G Common
Shares" (formerly referred to as "balanced fund shares"), two billion
(2,000,000,000) Shares shall constitute the class designated as "Class H Common
Shares" (formerly referred to as "equity index fund shares"), two billion
(2,000,000,000) Shares shall constitute the class designated as "Class I Common
Shares" (formerly referred to as "intermediate term income fund shares"), two
billion (2,000,000,000) Shares shall constitute the class designated as "Class J
Common Shares" (formerly referred to as "limited term income fund shares"), two
billion (2,000,000,000) Shares shall constitute the class designated as "Class K
Common Shares" (formerly referred to as "mortgage securities fund shares"), two
billion (2,000,000,000) Shares shall constitute the class designated as "Class L
Common Shares" (formerly referred to as "regional equity fund shares"), and the
remaining ninety-six billion (96,000,000,000) authorized Shares shall initially
be unclassified Shares. Any class of the Shares, including the Class A through
Class L Common Shares and each class hereafter created by the Board of
Directors, shall be referred to herein individually as a "Class" and
collectively as "Classes." The Board of Directors of the Corporation may further
classify or reclassify any unissued Shares into a Class or Series thereof
(whether or not such Shares have been previously classified or reclassified into
a Class or a Series thereof) from time to time by setting or changing the
preferences, conversion, or other rights, voting powers, designations,
restrictions, limitations as to dividends, qualifications, or terms or
conditions of redemption of such unissued Shares.
(c) The Shares of each Class may be further classified by the Board of
Directors into one or more series (individually a "Series" and collectively,
together with any other series within any Class, the "Series") with such
relative rights and preferences as shall be contained in Articles Supplementary
filed with the State Department of Assessments and Taxation of the State of
Maryland. All Series of a particular Class of the Corporation shall represent
the same interest in the Corporation and have identical voting, dividend,
liquidation, and other rights of any other Shares of such Class, except that the
shares of each Series within a Class may be subject to such charges and expenses
(including by way of example, but not by way of limitation, such front-end and
deferred sales charges as may be permitted under the 1940 Act and rules of the
National Association of Securities Dealers, Inc. ("NASD"), expenses under Rule
12b-1 plans, administration plans, service plans, or other plans or
arrangements, however designated) adopted from time to time by the Board of
Directors of the Corporation in accordance, to the extent applicable, with the
1940 Act, which charges and expenses may differ from those applicable to another
Series within such Class, and all of the charges and expenses to which a Series
is subject shall be borne by such Series and shall be appropriately reflected
(in the manner determined by the Board of Directors) in determining the net
asset value and the amounts payable with respect to dividends and distributions
on and redemptions or liquidations of, the Shares of such Series.
(d) A description of the relative preferences, conversion, and other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms and conditions of redemption of all Classes of Shares
is as follows, unless otherwise set forth in Articles Supplementary filed with
the State Department of Assessments and Taxation of the State of Maryland
describing any further Class or Classes from time to time created by the Board
of Directors of the Corporation:
(i) Assets Belonging to a Class. All consideration received by
the Corporation for the issue or sale of Shares of a particular Class,
together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof,
including any proceeds received 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
belong to that Class for all purposes, subject only to the rights of
creditors, and shall be so recorded upon the books of account of the
Corporation. Such consideration, assets, income, earnings, profits, and
proceeds, including 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,
together with any General Assets (as hereinafter defined) allocated to
that Class as provided in the following sentence, are herein referred
to as "assets belonging to" that Class. In the event that there are any
assets, income, earnings, profits, or proceeds thereof, funds or
payments which are not readily identifiable as belonging to any
particular Class (collectively, "General Assets"), the Board of
Directors shall allocate such General Assets to and among any one or
more of the Classes created from time to time in the manner and on such
basis as the Board of Directors, in its sole discretion, deems fair and
equitable; and any General Assets so allocated to a particular Class
shall belong to that Class. Each such allocation by the Board of
Directors shall be conclusive and binding upon the stockholders of all
Classes for all purposes.
(ii) Liabilities Belonging to a Class. The assets belonging to
each particular Class shall be charged with the liabilities of the
Corporation in respect of that Class and with all expenses, costs,
charges, and reserves attributable to that Class, and such charges
shall be so recorded upon the books of account of the Corporation. Such
liabilities, expenses, costs, charges and reserves, together with any
General Liabilities (as hereinafter defined) allocated to that Class as
provided in the following sentence, so charged to that class are herein
referred to as "liabilities belonging to" that Class. In the event
there are any general liabilities, expenses, costs, charges, or
reserves of the Corporation which are not readily identifiable as
belonging to any particular Class (collectively, "General
Liabilities"), the Board of Directors shall allocate and charge such
General Liabilities to and among any one or more of the Classes created
from time to time in such manner and on such basis as the Board of
Directors, in its sole discretion, deems fair and equitable; and any
General Liabilities so allocated and charged to a particular Class
shall belong to that Class. Each such allocation by the Board of
Directors shall be conclusive and binding upon the stockholders of all
Classes for all purposes.
(iii) Dividends and Distributions. Dividends and distributions
on Shares of a particular Class may be paid to the holders of Shares of
that Class at such times, in such manner and from such of the income
and capital gains, accrued or realized, from the assets belonging to
that Class, after providing for actual and accrued liabilities
belonging to that Class, as the Board of Directors may determine.
(iv) Liquidation. In the event of the liquidation or
dissolution of the Corporation, the stockholders of each Class that has
been created shall be entitled to receive, as a Class, when and as
declared by the Board of Directors, the excess of the assets belonging
to that Class over the liabilities belonging to that Class. The assets
so distributable to the stockholders of any particular Class shall be
distributed among the stockholders in proportion to the number of
Shares of that Class held by them and recorded on the books of the
Corporation.
(v) Voting. On each matter submitted to a vote of the
stockholders, each holder of a Share shall be entitled to one vote for
each such Share standing in his name on the books of the Corporation,
irrespective of the Class thereof, and all Shares of all Classes shall
vote as a single class ("Single Class Voting"); provided, however, that
(A) as to any matter with respect to which a separate vote of any Class
is required by the 1940 Act or would be required under the General
Corporation Law of the State of Maryland, such requirements as to a
separate vote by that Class shall apply in lieu of Single Class Voting
as described above; (B) in the event that the separate vote
requirements referred to in (A) above apply with respect to one or more
Classes, then, subject to (C) below, the Shares of all other Classes
shall vote as a single class; (C) as to any matter which does not
affect the interest of a particular Class, only the holders of Shares
of the one or more affected Classes shall be entitled to vote; and (D)
as to any matter which affects only a particular Series, only the
holders of the Shares of the affected Series shall be entitled to vote
and, if permitted by the 1940 Act and any other applicable law, the
Series of more than one Class may vote together as a single class on
any such matter which shall have the same effect on each Series.
(e) The Corporation shall not be obligated to issue certificates
representing shares of any Class or Series of capital stock. At the time of
issue or transfer of Shares without certificates, the Corporation shall provide
the stockholder with such information as may be required under the Maryland
General Corporation Law.
Section 2. Subject to compliance with the requirements of the 1940 Act,
the Board of Directors shall have the authority to provide that Shares of any
Series shall be convertible (automatically, optionally, or otherwise) into
Shares of one or more other Series in accordance with such requirements and
procedures as may be established by the Board of Directors.
Section 3. The presence in person or by proxy of the holders of record
of 30% of the Shares of all Classes issued and outstanding and entitled to vote
thereat shall constitute a quorum for the transaction of any business at all
meetings of the stockholders except as otherwise provided by law or in these
Articles of Incorporation and except that where the holders of Shares of any
Class or Series thereof are entitled to a separate vote as a Class or Series
(for purposes of this Section 3, such Series or Class, being referred to as a
"Separate Class") or where the holders of Shares of two or more (but not all)
Classes or Series thereof are required to vote as a single Class or Series for
purposes of this Section 3 (such Series or Classes being referred to as a
"Combined Class"), the presence in person or by proxy of the holders of 30% of
the Shares of that Separate Class or Combined Class, as the case may be, issued
and outstanding and entitled to vote thereat shall constitute a quorum for such
vote. If, however, a quorum with respect to all Classes, a Separate Class or a
Combined Class, as the case may be, shall not be present or represented at any
meeting of stockholders, the holders of a majority of the Shares of all Classes,
such Separate Class or such Combined Class, as the case may be, present in
person or by proxy and entitled to vote shall have power to adjourn the meeting
from time to time (to a date or dates not more than 120 days after the original
record date) as to all Classes, such Separate Class or such Combined Class, as
the case may be, without notice other than announcement at the meeting, until
the requisite number of Shares entitled to vote at such meeting shall be
present. At such adjourned meeting at which the requisite number of Shares
entitled to vote thereat shall be represented any business may be transacted
which might have been transacted at the meeting as originally notified. The
absence from any meeting of stockholders of the number of Shares in excess of
30% of the Shares of all Classes or of the affected Class or Classes or Series
thereof, as the case may be, which may be required by the laws of the State of
Maryland, the 1940 Act, any other applicable law or these Articles of
Incorporation, for action upon any given matter shall not prevent action at such
meeting upon any other matter or matters which may properly come before the
meeting, if there shall be present thereat, in person or by proxy, holders of
the number of Shares required for action in respect of such other matter or
matters. Notwithstanding any provision of the General Corporation Law of the
State of Maryland requiring that any action be taken or authorized by the
affirmative vote of the holders of a designated proportion greater than a
majority of the shares or votes entitled to be cast, such action shall be
effective and valid if taken or authorized by the affirmative vote of the
holders of a majority of the total number of shares outstanding and entitled to
vote thereon. When such shares are voted by individual Class or Series, any such
action shall be effective and valid if taken or authorized by the affirmative
vote of the holders of a majority of the total number of shares of such Class or
Series outstanding and entitled to vote thereon.
Section 4. All Shares now or hereafter authorized shall be subject to
redemption and redeemable at the option of the stockholder, in the sense used in
the General Corporation Law of the State of Maryland. Each holder of a Share of
any Class (or Series thereof), upon request to the Corporation accompanied by
surrender of the appropriate stock certificate or certificates, if any, in
proper form for transfer, shall be entitled to require the Corporation to redeem
all or any part of the Shares of that Class (or Series thereof) standing in the
name of such holder on the books of the Corporation at a redemption price per
Share based on the net asset value per Share of that Class (or Series thereof)
determined in accordance with Section 4 of Article VI hereof. Nothing herein
shall prohibit the Corporation from imposing, at the time of the redemption of
Shares of any Class or Series thereof, a fee or sales charge provided that such
fee or sales charge has been duly adopted by the Board of Directors and is
permitted under the applicable provisions of the 1940 Act and applicable rules
of the NASD.
Section 5. All Shares now or hereafter authorized shall be subject to
redemption and redeemable at the option of the Corporation. The Board of
Directors may by resolution from time to time authorize the Corporation to
require the redemption of all or any part of the outstanding Shares of any Class
(or Series thereof) upon the sending of written notice thereof to each
stockholder any of whose Shares of that Class (or Series thereof) are so
redeemed and upon such terms and conditions as the Board of Directors shall deem
advisable, out of funds legally available therefor, at a redemption price per
Share based on the net asset value per Share of that Class (or Series thereof)
determined in accordance with Section 4 of Article VI hereof and to take all
other steps deemed necessary or advisable in connection therewith. The
Corporation shall have the right to require the redemption of all Shares owned
or held by any one stockholder and having an aggregate net asset value, as
determined at any time in accordance with Article VI hereof, of less than
$500.00, or such other minimum as the Board of Directors may from time to time
establish in its discretion.
Section 6. The Board of Directors may by resolution from time to time
authorize the repurchase by the Corporation, either directly or through an
agent, of Shares of any Class upon such terms and conditions and for such
consideration as the Board of Directors shall deem advisable, out of funds
legally available therefor, at prices per Share not in excess of the net asset
value per Share of that Class determined in accordance with Section 4 of Article
VI hereof and to take all other steps deemed necessary or advisable in
connection therewith.
Section 7. Except as otherwise permitted by the 1940 Act, payment of
the redemption or repurchase price of Shares surrendered to the Corporation for
redemption pursuant to the provisions of Section 4 or 5 of this Article IV or
for repurchase by the Corporation pursuant to the provisions of Section 6 of
this Article IV shall be made by the Corporation within seven days after
surrender of such Shares to the Corporation for such purpose. Any such payment
may be made in whole or in part in portfolio securities or in cash, as the Board
of Directors shall deem advisable, and no stockholder shall have the right,
other than as determined by the Board of Directors, to have his Shares redeemed
or repurchased in portfolio securities.
Section 8. No holder of Shares shall, as such holder, have any
preemptive right to purchase or subscribe for any part of any new or additional
issue of stock of any Class, or of rights or options to purchase any stock, or
of securities convertible into, or carrying rights or options to purchase, stock
of any Class, whether now or hereafter authorized or whether issued for money,
for a consideration other than money or by way of a dividend or otherwise, and
all such rights are hereby waived by each holder of capital stock of any other
Class of stock or securities of the Corporation that may hereafter be created.
Section 9. All persons who shall acquire any of the Shares shall
acquire the same subject to the provisions of these Articles of Incorporation.
Section 10. The Corporation shall not be required to hold an annual
meeting of stockholders in any year unless such meeting is required under the
1940 Act, including any regulation thereunder.
ARTICLE V
DIRECTORS
Section 1. The Bylaws of the Corporation may fix the number of
directors and may authorize the Board of Directors to increase or decrease the
number of directors within a limit specified by the Bylaws, and to fill the
vacancies created by any such increase in the number of directors. Unless
otherwise provided by the Bylaws of the Corporation, the directors of the
Corporation need not be stockholders.
Section 2. The Bylaws of the Corporation may divide the Directors of
the Corporation into classes and prescribe the tenure of office of the several
classes.
Section 3. The Bylaws of the Corporation shall provide the number of
directors which shall constitute a quorum; provided, that in no event shall a
quorum be less than one-third of the entire Board of Directors nor less than two
directors.
Section 4. Stockholders of the Corporation may remove a Director by the
affirmative vote of a majority of the Corporation's outstanding Shares.
ARTICLE VI
MANAGEMENT OF THE AFFAIRS OF THE CORPORATION
Section 1. The Board of Directors shall have the general management and
control of the business and property of the Corporation, and may exercise all
the powers of the Corporation, except such as are by statute or by these
Articles of Incorporation or by the Bylaws conferred upon or reserved to the
stockholders. The Corporation may in its Bylaws confer powers on the Board of
Directors in addition to the powers expressly conferred by statute.
Section 2. The Board of Directors shall have the power to adopt, alter,
or repeal the Bylaws of the Corporation except to the extent that the Bylaws
otherwise provide.
Section 3. The Board of Directors shall have the power from time to
time to determine whether and to what extent, at what times and places, and
under what conditions and regulations, the accounts and books of the Corporation
or any of them shall be open to the inspection of stockholders, and no
stockholder shall have any right to inspect any account, book or document of the
Corporation except to the extent required by statute or permitted by the Bylaws.
Section 4. The Board of Directors shall have the power to determine, as
provided in these Articles of Incorporation, or if provision is not made herein,
in accordance with generally accepted accounting principles, what constitutes
net income, total assets, and the net asset value of the Shares of each Class of
the Corporation, and of the Shares of each Series of such Class. Any such
determination made in good faith shall be final and conclusive, and shall be
binding upon the Corporation, and all holders of shares of each Series of each
Class (past, present, and future), and Shares of each Class are issued and sold
on the condition and undertaking, evidenced by acceptance of certificates for
such Shares by, or confirmation of such Shares being held for the account of,
any stockholder, that any and all such determinations shall be binding as
aforesaid. Nothing in this Section 4 shall be construed to protect any director
or officer of the Corporation against any liability to the Corporation or its
stockholders to which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence, or reckless disregard of the duties
involved in the conduct of his office.
Section 5. The Board of Directors shall have the power to authorize
additional shares of stock and provide for the issuance and sale of shares of
the stock of the Corporation.
ARTICLE VII
INDEMNIFICATION; LIABILITY
Section 1. Each present or former director, officer, agent and employee
of the Corporation or any predecessor or constituent corporation, and each
person who, at the request of the Corporation, serves or served another business
enterprise in any such capacity, and the heirs and personal representatives of
each of the foregoing shall be indemnified by the Corporation to the fullest
extent permitted by law against all expenses, including without limitation
amounts of judgments, fines, amounts paid in settlement, attorneys' and
accountants' fees, and costs of litigation, which shall necessarily or
reasonably be incurred by him or her in connection with any action, suit or
proceeding to which he or she was, is or shall be a party, or with which he or
she may be threatened, by reason of his or her being or having been a director,
officer, agent or employee of the Corporation or such predecessor or constituent
corporation or such business enterprise, whether or not he or she continues to
be such at the time of incurring such expenses. Such indemnification may include
without limitation the purchase of insurance and advancement of any expenses,
and the Corporation shall be empowered to enter into agreements to limit the
liability of directors and officers of the Corporation. No indemnification shall
be made in violation of the General Corporation Law of the State of Maryland or
the 1940 Act.
Section 2. No director or officer of the Corporation shall be liable to
the Corporation or its stockholders for money damages, except (i) to the extent
that it is proved that such director or officer actually received an improper
benefit or profit in money, property or services, for the amount of the benefit
or profit in money, property or services actually received, or (ii) to the
extent that a judgment or other final adjudication adverse to such director or
officer is entered in a proceeding based on a finding in the proceeding that
such director's or officer's action, or failure to act, was the result of active
and deliberate dishonesty and was material to the cause of action adjudicated in
the proceeding. The foregoing shall not be construed to protect or purport to
protect any director or officer of the Corporation against any liability to the
Corporation or its stockholders to which such director or officer would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
office.
ARTICLE VIII
PERPETUAL EXISTENCE
The duration of the Corporation shall be perpetual.
ARTICLE IX
AMENDMENTS
The Corporation reserves the right from time to time to make any
amendments of its charter which may now or hereafter be authorized by law,
including any amendments changing the terms or contract rights, as expressly set
forth in its charter, of any of its outstanding stock by classification,
reclassification, or otherwise.
_________________________
The terms "Articles of Incorporation" as used herein and in the Bylaws
of the Corporation shall be deemed to mean these Articles of Incorporation as
from time to time amended, restated, or supplemented.
_________________________
SECOND: (a) As of immediately before the amendment, the total number of
shares of stock of all classes that the Corporation had authority to issue is
twelve billion (12,000,000,000) shares, all of which are shares of common stock
(par value $.001 per share), and such shares had an aggregate par value of
twelve million dollars ($12,000,000).
(b) As amended, the total number of shares of stock of all classes
which the Corporation has authority to issue is one hundred twenty billion
(120,000,000,000) shares, all of which are shares of common stock (par value
$.0001 per share), and such shares have an aggregate par value of twelve million
dollars ($12,000,000).
(c) Because the amendment effects a change in the par value of each
authorized share of the Corporation's common stock from $.001 per share to
$.0001 per share, the Corporation's charter is hereby amended by changing and
reclassifying each of the shares of the Corporation's common stock (par value
$.001 per share) into one share of common stock (par value $.0001 per share),
and by transferring from the common stock account of the Corporation to the
capital in excess of par value account $.0009 for each share of common stock
which is issued and outstanding at the effective time of this amendment.
THIRD: The foregoing Articles of Amendment and Restatement have been
advised by the Board of Directors and approved by the stockholders of the
Corporation.
IN WITNESS WHEREOF, the Corporation has caused these presents to be
signed in its name and on its behalf by its President and witnessed by its
Secretary on January , 1994.
FIRST AMERICAN INVESTMENT FUNDS, INC.
WITNESS:
By
Robert A. Nesher, President
_________________________
Michael J. Radmer, Secretary
THE UNDERSIGNED, President of the Corporation, who executed on behalf
of the Corporation the foregoing Articles of Amendment and Restatement of which
this certificate is made a part, hereby acknowledges in the name and on behalf
of said Corporation the foregoing Articles of Amendment and Restatement to be
the corporate act of said Corporation and hereby certifies that to the best of
his knowledge, information, and belief the matters and facts set forth therein
with respect to the authorization and approval thereof are true in all material
respects under the penalties of perjury.
________________________
Robert A. Nesher, President
FINAL
FIRST AMERICAN INVESTMENT FUNDS, INC.
ARTICLES SUPPLEMENTARY
First American Investment Funds, Inc., a corporation organized under
the laws of the State of Maryland (the "Corporation"), does hereby file for
record with the State Department of Assessments and Taxation of Maryland the
following Articles Supplementary to its Articles of Incorporation:
FIRST: The Corporation is registered as an open-end investment company
under the Investment Company Act of 1940 (the "1940 Act"). As hereinafter set
forth, the Corporation has classified its authorized capital stock in accordance
with the Maryland General Corporation Law.
SECOND: Immediately before the classifications hereinafter set forth,
the Corporation had authority to issue one hundred twenty billion
(120,000,000,000) shares of common stock (individually, a "Share" and
collectively, the "Shares"), of the par value of $.0001 per Share and of the
aggregate par value of twelve million dollars ($12,000,000), classified as
follows:
(1) Class A Common Shares (formerly referred to as "government
bond fund shares"): Two billion (2,000,000,000) Shares.
(2) Class B Common Shares (formerly referred to as "fixed
income fund shares"): Two billion (2,000,000,000) Shares.
(3) Class C Common Shares (formerly referred to as "municipal
bond fund shares"): Two billion (2,000,000,000) Shares.
(4) Class D Common Shares (formerly referred to as "stock fund
shares"): Two billion (2,000,000,000) Shares.
(5) Class E Common Shares (formerly referred to as "special
equity fund shares"): Two billion (2,000,000,000) Shares.
(6) Class F Common Shares (formerly referred to as "asset
allocation fund shares"): Two billion (2,000,000,000) Shares.
(7) Class G Common Shares (formerly referred to as "balanced
fund shares"): Two billion (2,000,000,000) Shares.
(8) Class H Common Shares (formerly referred to as "equity
index fund shares"): Two billion (2,000,000,000) Shares.
(9) Class I Common Shares (formerly referred to as
"intermediate term income fund shares"): Two billion (2,000,000,000)
Shares.
(10) Class J Common Shares (formerly referred to as "limited
term income fund shares"): Two billion (2,000,000,000) Shares.
(11) Class K Common Shares (formerly referred to as "mortgage
securities fund shares"): Two billion (2,000,000,000) Shares.
(12) Class L Common Shares (formerly referred to as "regional
equity fund shares"): Two billion (2,000,000,000) Shares.
(13) Unclassified Shares: Ninety-six billion (96,000,000,000)
Shares.
THIRD: Pursuant to the authority contained in Article IV of the
Articles of Incorporation of the Corporation and Section 2-208 of the Maryland
General Corporation Law, the Board of Directors of the Corporation, by
resolution adopted at a meeting held on December 7, 1993, classified the
following additional Shares out of the authorized, unissued and unclassified
Shares of the Corporation:
(1) Class A, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(2) Class B, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(3) Class C, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(4) Class D, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(5) Class E, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(6) Class F, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(7) Class G, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(8) Class H, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(9) Class I, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(10) Class J, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(11) Class K, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(12) Class L, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(13) Class M Common Shares: Two billion (2,000,000,000)
Shares.
(14) Class M, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(15) Class N Common Shares: Two billion (2,000,000,000)
Shares.
(16) Class N, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(17) Class O Common Shares: Two billion (2,000,000,000)
Shares.
(18) Class O, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(19) Class P Common Shares: Two billion (2,000,000,000)
Shares.
(20) Class P, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(21) Class Q Common Shares: Two billion (2,000,000,000)
Shares.
(22) Class Q, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
FOURTH: The Shares classified pursuant to THIRD above shall have the
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption, set forth in the Corporation's Articles of Incorporation. Any Class
or Series of Shares classified pursuant to THIRD above may be subject to such
charges and expenses (including by way of example, but not by way of limitation,
such front-end and deferred sales charges as may be permitted under the 1940 Act
and rules of the National Association of Securities Dealers, Inc. ("NASD"),
expenses under Rule 12b-1 plans, administration plans, service plans, or other
plans or arrangements, however designated) adopted from time to time by the
Board of Directors of the Corporation in accordance, to the extent applicable,
with the 1940 Act, and all of the charges and expenses to which such a Class or
Series is subject shall be borne by such Class or Series and shall be
appropriately reflected (in the manner determined by the Board of Directors) in
determining the net asset value and the amounts payable with respect to
dividends and distributions on and redemptions or liquidations of, the Shares of
such Class or Series.
FIFTH: Immediately after the classifications hereinbefore set forth and
upon filing for record of these Articles Supplementary, the Corporation has
authority to issue one hundred twenty billion (120,000,000,000) shares of common
stock (individually, a "Share" and collectively, the "Shares"), of the par value
of $.0001 per Share and of the aggregate par value of twelve million dollars
($12,000,000), classified as follows:
(1) Class A Common Shares (formerly referred to as "government
bond fund shares"): Two billion (2,000,000,000) Shares.
(2) Class A, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(3) Class B Common Shares (formerly referred to as "fixed
income fund shares"): Two billion (2,000,000,000) Shares.
(4) Class B, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(5) Class C Common Shares (formerly referred to as "municipal
bond fund shares"): Two billion (2,000,000,000) Shares.
(6) Class C, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(7) Class D Common Shares (formerly referred to as "stock fund
shares"): Two billion (2,000,000,000) Shares.
(8) Class D, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(9) Class E Common Shares (formerly referred to as "special
equity fund shares"): Two billion (2,000,000,000) Shares.
(10) Class E, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(11) Class F Common Shares (formerly referred to as "asset
allocation fund shares"): Two billion (2,000,000,000) Shares.
(12) Class F, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(13) Class G Common Shares (formerly referred to as "balanced
fund shares"): Two billion (2,000,000,000) Shares.
(14) Class G, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(15) Class H Common Shares (formerly referred to as "equity
index fund shares"): Two billion (2,000,000,000) Shares.
(16) Class H, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(17) Class I Common Shares (formerly referred to as
"intermediate term income fund shares"): Two billion (2,000,000,000)
Shares.
(18) Class I, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(19) Class J Common Shares (formerly referred to as "limited
term income fund shares"): Two billion (2,000,000,000) Shares.
(20) Class J, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(21) Class K Common Shares (formerly referred to as "mortgage
securities fund shares"): Two billion (2,000,000,000) Shares.
(22) Class K, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(23) Class L Common Shares (formerly referred to as "regional
equity fund shares"): Two billion (2,000,000,000) Shares.
(24) Class L, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(25) Class M Common Shares: Two billion (2,000,000,000)
Shares.
(26) Class M, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(27) Class N Common Shares: Two billion (2,000,000,000)
Shares.
(28) Class N, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(29) Class O Common Shares: Two billion (2,000,000,000)
Shares.
(30) Class O, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(31) Class P Common Shares: Two billion (2,000,000,000)
Shares.
(32) Class P, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(33) Class Q Common Shares: Two billion (2,000,000,000)
Shares.
(34) Class Q, Series 2 Common Shares: Two billion
(2,000,000,000) Shares.
(35) Unclassified Shares: Fifty-two billion (52,000,000,000)
Shares.
SIXTH: The aforesaid action by the Board of Directors of the
Corporation was taken pursuant to authority and power contained in the
Articles of Incorporation of the Corporation.
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be signed in its name and on its behalf by its President and
witnessed by its Secretary on January , 1994.
First American Investment Funds, Inc.
By
Robert A. Nesher, President
WITNESS:
Michael J. Radmer, Secretary
EXHIBIT 2
NAME CHANGE FROM "SECURAL Mutual
FUNDS, INC." to "First American Investment
FUNDS, INC." approved at Board of Directors'
MEETINGS ON FEBRUARY 12, 1991;
AMENDMENT ADDING NEW SECTION 8 TO ARTICLE I
APPROVED AT BOARD OF DIRECTORS' Meetings
ON DECEMBER 15, 1992;
AMENDMENTS TO ARTICLE III APPROVED AT
BOARD OF DIRECTORS' Meetings on
SEPTEMBER 7, 1993;
AMENDMENT ADDING NEW SECTION 3 TO ARTICLE V
APPROVED AT BOARD OF DIRECTORS' Meeting on
DECEMBER 7, 1993.
BYLAWS
OF
FIRST AMERICAN INVESTMENT FUNDS, INC.
(A MARYLAND CORPORATION)
ARTICLE I
STOCKHOLDERS
SECTION 1. Meetings. Annual or special meetings of
stockholders may be held on such date and at such time as shall be set or
provided for by the Board of Directors or, if not so set or provided for, then
as stated in the notice of meeting. The notice of meeting shall state the
purpose or purposes for which the meeting is called.
SECTION 2. Place of Meetings. All meetings of stockholders
shall be held at such place in the United States as is set or provided for by
the Board of Directors or, if not so set or provided for, then as stated in the
notice of meeting.
SECTION 3. Organization. At any meeting of the stockholders,
in the absence of the Chairman of the Board of Directors, if any, and of the
President or a Vice President acting in his stead, the stockholders shall choose
a chairman to preside over the meeting. In the absence of the Secretary or an
Assistant Secretary, acting in his stead, the chairman of the meeting shall
appoint a secretary to keep the record of all the votes and minutes of the
proceedings.
SECTION 4. Proxies. At any meeting of the stockholders, every
stockholder having the right to vote shall be entitled to vote in person or by
proxy appointed by an instrument executed in writing by such stockholder or his
duly authorized attorney-in-fact and bearing a date not more than eleven (11)
months prior to said meeting, unless otherwise provided in the proxy.
SECTION 5. Voting. At any meeting of the stockholders, every
stockholder shall be entitled to one vote or a fractional vote on each matter
submitted to a vote for each share or fractional share of stock standing in his
name on the books of the Corporation as of the close of business on the record
date for such meeting. Unless the voting is conducted by inspectors, all
questions relating to the qualifications of voters, validity of proxies and
acceptance or rejection of votes shall be decided by the chairman of the
meeting.
SECTION 6. Record Date; Closing of Transfer Books. The Board
of Directors may fix, in advance, a date as the record date for the purpose of
determining stockholders entitled to notice of, or to vote at, any meeting of
stockholders, or stockholders entitled to receive payment of any dividend or the
allotment of any rights, or in order to make a determination of stockholders for
any other proper purpose. Such date, in any case, shall be not more than sixty
days, and in case of a meeting of stockholders not less than ten days, prior to
the date on which the particular action requiring such determination of
stockholders is to be taken. In lieu of fixing a record date, the Board of
Directors may provide that the stock transfer books shall be closed for a stated
period but not to exceed, in any case, twenty days. If the stock transfer books
are closed for the purpose of determining stockholders entitled to notice of or
to vote at a meeting of stockholders, such books shall be closed for at least
ten days immediately preceding such meeting.
SECTION 7. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares 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.
SECTION 8. Calling of Special Meeting of Shareholders. A
special meeting of stockholders shall be called upon the written request of the
holders of shares entitled to cast not less than 10% of all votes entitled to
vote at such meeting.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. Number, Qualification, Tenure and Vacancies. The
initial Board of Directors shall consist of five (5) directors. Except as
hereinafter provided, a director shall be elected to serve until his successor
shall be elected and shall qualify or until his earlier death, resignation,
retirement or removal. The directors may at any time when the stockholders are
not assembled in meeting, establish, increase or decrease their own number by
majority vote of the entire Board of Directors; provided, that the number of
directors shall never be less than three (3) nor more than twelve (12). The
number of directors may not be decreased so as to affect the term of any
incumbent director. If the number be increased, the additional directors to fill
the vacancies thus created may, except as hereinafter provided, by elected by
majority vote of the entire Board of Directors. Any vacancy occurring for any
cause may be filled by a majority of the remaining members of the Board of
Directors, although such majority is less than a quorum; provided, however, that
after filling any vacancy for any cause whatsoever two-thirds (2/3) of the
entire Board of Directors shall have been elected by the stockholders of the
Corporation. A director elected under any circumstance shall be elected to hold
office until his successor is elected and qualified, or until such director's
earlier death, resignation, retirement or removal.
SECTION 2. When Stockholder Meeting Required. If at any time
less than a majority of the directors holding office were elected by the
stockholders of the Corporation, the directors or the President or Secretary
shall cause a meeting of stockholders to be held as soon as possible and, in any
event, within sixty (60) days, unless extended by order of the Securities and
Exchange Commission, for the purpose of electing directors to fill any vacancy.
SECTION 3. Regular Meetings. Regular meetings of the Board of
Directors may be held at such time and place as shall be determined from time to
time by agreement or fixed by resolution of the Board of Directors.
SECTION 4. Special Meetings. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board or President
and shall be called by the Secretary upon the written request of any two (2)
directors.
SECTION 5. Notice of Meetings. Except as otherwise provided in
these Bylaws, notice need not be given of regular meetings of the Board of
Directors held at times fixed by agreement or resolution of the Board of
Directors. Notice of special meetings of the Board of Directors, stating the
place, date and time thereof, shall be given not less than two (2) days before
such meeting to each director. Notice to a director may be given personally, by
telegram, cable or wireless, by telephone, by mail, or by leaving such notice at
his place of residence or usual place of business. If mailed, such notice shall
be deemed to be given when deposited in the United States mail, postage prepaid,
directed to the director at his address as it appears on the records of the
Corporation. Meetings may be held at any time without notice if all the
directors are present, or if those not present waive notice of the meeting in
writing. If the President shall determine in advance that a quorum would not be
present on the date set for any regular or special meeting, such meeting may be
held at such later date, time and place as he shall determine, upon at least
twenty-four (24) hours' notice.
SECTION 6. Quorum. A majority of the directors then in office,
at a meeting duly assembled, but not less than one-third of the entire Board of
Directors nor in any event less than two directors, shall constitute a quorum
for the transaction of business. The vote of a majority of directors present at
a meeting at which a quorum is present shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
Articles of Incorporation or by these Bylaws. If at any meeting of the Board of
Directors, there shall be less than a quorum present, a majority of those
present may adjourn the meeting, without further notice, from time to time until
a quorum shall have been obtained.
SECTION 7. Removal. At any meeting of stockholders, duly
called and at which a quorum is present, the stockholders may, by the
affirmative vote of the holders of a majority of the votes entitled to be cast
thereon, remove any director or directors from office and may elect a successor
or successors to fill any resulting vacancies.
SECTION 8. Committees. The Board of Directors, may, by
resolution adopted by a majority of the entire Board of Directors, from time to
time appoint from among its members one or more committees as it may determine.
Each committee appointed by the Board of Directors shall be composed of two (2)
or more directors and may, to the extent provided in such resolution, have and
exercise all the powers of the Board of Directors, except the power to declare
dividends, to issue stock or to recommend to stockholders any action requiring
stockholder approval. Each such committee shall serve at the pleasure of the
Board of Directors. Each such committee shall keep a record of its proceedings
and shall adopt its own rules of procedure. It shall make reports as may be
required by the Board of Directors.
ARTICLE III
OFFICERS AND CHAIRMAN OF THE BOARD OF DIRECTORS
SECTION 1. Offices. The elected officers of the Corporation
shall be the President, the Secretary and the Treasurer, and may also include
one or more Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers and such other officers as the Board of Directors may
determine. Any two or more offices may be held by the same person, except that
no person may hold both the office of President and the office of Vice
President. A person who holds more than one office in the Corporation shall not
act in more than one capacity to execute, acknowledge or verify an instrument
required by law to be executed, acknowledged or verified by more than one
officer.
SECTION 2. Selection, Term of Office and Vacancies. The
initial officers of the Corporation shall be elected by the Board of Directors
at the first meeting of the Board of Directors. Additional officers may be
elected at any regular or special meeting of the Board of Directors. Each
officer shall serve at the pleasure of the Board of Directors or until his
earlier death, resignation or retirement. If any office becomes vacant, the
vacancy shall be filled by the Board of Directors.
SECTION 3. Chairman of the Board. The Board of Directors may
elect one of its members as Chairman of the Board. Except as otherwise provided
in these Bylaws, in the event the Board of Directors elects a Chairman of the
Board of Directors, he shall preside at all meetings of the stockholders and the
Board of Directors and shall perform such other duties as from time to time may
be assigned to him by the Board of Directors. The Chairman of the Board of
Directors will under no circumstances be deemed to be an "officer" of the
Corporation, and an individual serving as Chairman of the Board of Directors
will not be deemed to be an "affiliated person" with respect to the Corporation
(under the Investment Company Act of 1940, as amended) solely by virtue of such
person's position as Chairman of the Board of Directors of the Corporation.
SECTION 4. President. The president shall be the chair
executive officer of the Corporation and shall perform such other duties as from
time to time may be assigned to him by the Board of Directors. He shall perform
the duties of the Chairman of the Board of Directors in the event there is no
Chairman or in the event the Chairman is absent.
SECTION 5. Vice Presidents. A Vice President shall perform
such duties as may be assigned by the President or the Board of Directors. In
the absence of the President and in accordance with such order of priority as
may be established by the Board of Directors, he may perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President.
SECTION 6. Secretary. The Secretary shall (a) keep the minutes
of the stockholders' and Board of Directors' meetings in one or more books
provided for that purpose, and shall perform like duties for committees when
requested, (b) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law, (c) be custodian of the
corporate records and of the seal of the Corporation and see that the seal of
the Corporation is affixed to all documents the execution of which on behalf of
the Corporation under its seal is duly authorized or required by law, and (d) in
general perform all duties incident to the office of Secretary and such other
duties as may be assigned by the President or the Board of Directors.
SECTION 7. Assistant Secretaries. One or more Assistant
Secretaries may be elected by the Board of Directors or appointed by the
President. In the absence of the Secretary and in accordance with such order as
may be established by the Board of Directors, an Assistant Secretary shall have
the power to perform his duties including the certification, execution and
attestation of corporate records and corporate instruments. Assistant
Secretaries shall perform such other duties as may be assigned to them by the
President or the Board of Directors.
SECTION 8. Treasurer. The Treasurer (a) shall be the principal
financial officer of the Corporation, (b) shall see that all funds and
securities of the Corporation are held by the custodian of the Corporation's
assets, and (c) shall be the principal accounting officer of the Corporation.
SECTION 9. Assistant Treasurers. One or more Assistant
Treasurers may be elected by the Board of Directors or appointed by the
President. In the absence of the Treasurer and in accordance with such order as
may be established by the Board of Directors, an Assistant Treasurer shall have
the power to perform his duties. Assistant Treasurers shall perform such other
duties as may be assigned to them by the President or the Board of Directors.
SECTION 10. Other Officers. The Board of Directors may appoint
or may authorize the Chairman of the Board or the President to appoint such
other officers and agents as the appointer may deem necessary and proper, 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 appointer.
SECTION 11. Bond. If required by the Board of Directors, the
Treasurer and such other directors, officers, employees and agents of the
Corporation as the Board of Directors may specify, shall give the Corporation a
bond in such amount, in such form and with such security, surety or sureties, as
may be satisfactory to the Board of Directors, conditioned on the faithful
performance of the duties of their office and for the restoration to the
Corporation, in case of their death, resignation, or removal from their office
of all books, papers, vouchers, monies, securities and property of whatever kind
in their possession belonging to the Corporation. All premiums on such bonds
shall be paid by the Corporation.
SECTION 12. Removal. Any officer (or the Chairman of the Board
of Directors) of the Corporation may be removed by the Board of Directors
whenever, in its judgment, the best interests of the Corporation will be served
thereby, but such removal shall be without prejudice to the contractual rights,
if any, of the officer (or the Chairman of the Board of Directors) so removed.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Stock Certificates. Certificates representing
shares of stock of the Corporation shall be in such form consistent with the
laws of the State of Maryland as shall be determined by the Board of Directors.
All certificates for shares of stock shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the shares of
stock represented thereby are issued, with the number of shares and date of
issue, shall be entered on the stock transfer records of the Corporation.
SECTION 2. Redemption and Transfer. Any holder of stock of the
Corporation desiring to redeem or transfer shares of stock standing in the name
of such holder on the books of the Corporation shall deliver to the Corporation
or to its agent duly authorized for such purpose a written unconditional
request, in form acceptable to the Corporation, for such redemption or transfer.
If certificates evidencing such shares have been issued, such certificates shall
also be so delivered in transferable form duly endorsed or accompanied by all
necessary stock transfer stamps or currency or certified or bank cashier's check
payable to the order of the Corporation for the appropriate price thereof. The
Corporation or its duly authorized agent may require that the signature of a
redeeming stockholder on any or all of the request, endorsement or stock power
be guaranteed and that other documentation in accordance with the custom of
brokers be so delivered where appropriate, such as proof of capacity and power
to make request or transfer. All documents and funds shall be deemed to have
been delivered only when physically deposited at such office or other place of
deposit as the Corporation or its duly authorized agent shall from time to time
designate. At any time during which the right of redemption is suspended or
payment for such shares is postponed pursuant to the Investment Company Act of
1940, as amended, or any rule, regulation or order thereunder, any stockholder
may withdraw his request (and certificates and funds, if any) or may leave the
same on deposit, in which case the redemption price shall be the net asset value
next applicable after such suspension or postponement is terminated.
SECTION 3. Lost, Mutilated, Destroyed or Wrongfully Taken
Certificates. Any person claiming a stock certificate to have been lost,
mutilated, destroyed or wrongfully taken, and who requests the issuance of a new
certificate before the Corporation has notice that the certificate alleged to
have been lost, mutilated, destroyed or wrongfully taken has been acquired by a
bona fide purchaser, shall make an affidavit of that fact and shall give the
Corporation and its transfer agents and registrars a bond, with sufficient
surety, to indemnify them against any loss or claim arising as a result of the
issuance of a new certificate. The form and amount of such bond and the surety
thereon shall in each case be deemed sufficient if satisfactory to the President
or Treasurer of the Corporation.
ARTICLE V
GENERAL PROVISIONS
SECTION 1. Fiscal Year. The fiscal year of the Corporation
shall be established by resolution of the Board of Directors.
SECTION 2. Amendments. These Bylaws may be altered, amended or
repealed and new Bylaws may be adopted by a majority of the entire Board of
Directors at any meeting of the Board of Directors.
SECTION 3. Names of Classes and Series of Shares. The names of
the classes and series of shares which have been classified by the Corporation
in its Articles of Incorporation and in Articles Supplementary shall be as
follows:
<TABLE>
<CAPTION>
Designation of Shares in
Articles of Incorporation
or Articles Supplementary Name of Class or Series
<S> <C>
Class A Common Shares ............................ Government Bond Fund, Retail Class
Class A, Series 2 Common Shares ................. Government Bond Fund, Institutional Class
Class B Common Shares ............................ Fixed Income Fund, Retail Class
Class B, Series 2 Common Shares .................. Fixed Income Fund, Institutional Class
Class C Common Shares ............................ Municipal Bond Fund, Retail Class
Class C, Series 2 Common Shares .................. Municipal Bond Fund, Institutional Class
Class D Common Shares ............................ Stock Fund, Retail Class
Class D, Series 2 Common Shares .................. Stock Fund, Institutional Class
Class E Common Shares ............................ Special Equity Fund, Retail Class
Class E, Series 2 Common Shares .................. Special Equity Fund, Institutional Class
Class F Common Shares ............................ Asset Allocation Fund, Retail Class
Class F, Series 2 Common Shares .................. Asset Allocation Fund, Institutional Class
Class G Common Shares ............................ Balanced Fund, Retail Class
Class G, Series 2 Common Shares .................. Balanced Fund, Institutional Class
Class H Common Shares ............................ Equity Index Fund, Retail Class
Class H, Series 2 Common Shares .................. Equity Index Fund, Institutional Class
Class I Common Shares ............................ Intermediate Term Income Fund, Retail
Class
Class I, Series 2 Common Shares .................. Intermediate Term Income Fund,
Institutional Class
Class J Common Shares ............................ Limited Term Income Fund, Retail Class
Class J, Series 2 Common Shares .................. Limited Term Income Fund,
Institutional Class
Class K Common Shares ............................ Mortgage Securities Fund, Retail Class
Class K, Series 2 Common Shares .................. Mortgage Securities Fund, Institutional
Class
Class L Common Shares ............................ Regional Equity Fund, Retail Class
Class L, Series 2 Common Shares .................. Regional Equity Fund, Institutional Class
Class M Common Shares ............................ Minnesota Insured Intermediate Tax Free
Fund, Retail Class
Class M, Series 2 Common Shares .................. Minnesota Insured Intermediate Tax Free
Fund, Institutional Class
Class N Common Shares ............................ Colorado Intermediate Tax Free Fund,
Retail Class
Class N, Series 2 Common Shares .................. Colorado Intermediate Tax Free Fund,
Institutional Class
Class O Common Shares ............................ Emerging Growth Fund, Retail Class
Class O, Series 2 Common Shares .................. Emerging Growth Fund, Institutional Class
Class P Common Shares ............................ Technology Fund, Retail Class
Class P, Series 2 Common Shares .................. Technology Fund, Institutional Class
Class Q Common Shares ............................ International Fund, Retail Class
Class Q, Series 2 Common Shares .................. International Fund, Institutional Class
</TABLE>
EXHIBIT 4
INCORPORATED UNDER THE LAWS
OF THE STATE OF MARYLAND
1001
SECURAL MUTUAL FUNDS, INC.
MUNICIPAL BOND FUND
COMMON STOCK
THIS IS TO CERTIFY THAT SEE REVERSE SIDE FOR
CERTAIN DEFINITIONS
CUSP 613696 30 5
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF MUNICIPAL BOND FUND COMMON STOCK,
PAR VALUE $.001 PER SHARE OF
__________ SECURAL MUTUAL FUNDS, INC.__________
(herein called the "Corporation") transferable on the books of the Corporation
in person or by attorney duly authorized in writing upon surrender of this
certificate properly endorsed. the holder hereof by accepting this certificate
expressly assents to and is bound by the Articles of Incorporation, as amended,
and the By-Laws, as amended, of the Corporation, copies of which are available
for inspection at the principal office of the Corporation in Appleton,
Wisconsin.
THE SHARES REPRESENTED BY THIS CERTIFICATE WILL BE REDEEMED BY THE
CORPORATION UPON REQUEST OF THE STOCKHOLDER AS PROVIDED IN THE ARTICLES OF
INCORPORATION OF THE CORPORATION. IN ADDITION, THE ARTICLES OF INCORPORATION
PROVIDE THAT THE CORPORATION, AT ITS OPTION, MAY REDEEM SHARES OF ITS STOCK
UNDER CERTAIN OTHER CIRCUMSTANCES. THE CORPORATION WILL FURNISH TO ANY
STOCKHOLDER UPON REQUEST A FULL STATEMENT REGARDING THE DESIGNATIONS, AND ANY
PREFERENCES, CONVERSION AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS,
LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS AND TERMS AND CONDITIONS OF
REDEMPTION OF THE STOCK OF EACH CLASS AND SERIES AUTHORIZED TO BE ISSUED. THE
DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES BETWEEN SHARES OF ANY SERIES
OR CLASS TO THE EXTENT THEY HAVE BEEN SET, AND THE AUTHORITY OF THE BOARD OF
DIRECTORS TO CLASSIFY UNISSUED SHARES AND TO SET THE RELATIVE RIGHTS AND
PREFERENCES THEREOF AND OF ANY SUBSEQUENT SERIES OF ANY SUCH CLASSES OR SERIES.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
SECRETARY PRESIDENT
EXHIBIT 5(a)
INVESTMENT ADVISORY AGREEMENT
This Agreement, made this 2nd day of April, 1991, by and
between First American Investment Funds, Inc., a Maryland corporation (the
"Fund"), on behalf of each portfolio represented by a series of shares of common
stock of the Fund that adopts this Agreement (the "Portfolios") (the Portfolios,
together with the date each Portfolio adopts this Agreement, are set forth in
Exhibit A hereto, which shall be updated from time to time to reflect additions,
deletions or other changes thereto), and First Bank National Association, a
national banking association organized and existing under the laws of the United
States of America (the "Adviser").
1. The Fund on behalf of the Portfolios hereby retains the
Adviser, and the Adviser hereby agrees to act, as investment adviser for, and to
manage the investment of the assets of, the Portfolios as set forth herein and
as further requested by the Board of Directors of the Fund. In acting hereunder
the Adviser shall be an independent contractor and, unless otherwise expressly
provided or authorized hereunder or by the Board of Directors of the Fund, shall
have no authority to act for or represent the Fund or any Portfolio in any way
or otherwise be an agent of the Fund or any Portfolio.
2. The Adviser, at its own expense, shall provide the Fund
with all necessary office space, personnel and facilities necessary and incident
to the performance of the Adviser's services hereunder. The Adviser shall pay or
be responsible for the payment of all compensation to personnel of the Fund and
the officers and directors of the Fund who are affiliated with the Adviser or
any entity which controls, is controlled by or is under common control with the
Adviser.
3. The Adviser shall be responsible only for those expenses
expressly stated in paragraph 2 to be the responsibility of the Adviser and
shall not be responsible for any other expenses of the Fund or any Portfolio
including, as illustrative and without limitation, fees and charges of any
custodian (including charges as custodian and for keeping books and records and
similar services to the Fund and the Portfolios); fees and expenses of
directors, other than directors described in paragraph 2; fees and expenses of
independent auditors, legal counsel, transfer agents, dividend disbursing
agents, and registrars; costs of and incident to issuance, redemption and
transfer of its shares, and distributions to shareholders (including dividend
payments and reinvestment of dividends); brokers' commissions; interest charges;
taxes and corporate fees payable to any government or governmental body or
agency (including those incurred on account of the registration or qualification
of securities issued by the Fund); dues and other expenses incident to the
Fund's membership in the Investment Company Institute and other like
associations; costs of stock certificates, shareholder meetings, corporate
reports, reports and notices to shareholders; and costs of printing, stationery
and bookkeeping forms. The Adviser shall be reimbursed by the Fund or the
applicable Portfolios on or before the fifteenth day of each calendar month for
all expenses paid or incurred during the preceding calendar month by the Adviser
for or on behalf of, or at the request or direction of, the Fund or the
applicable Portfolios which are not the responsibility of the Adviser hereunder.
4. The Adviser may utilize the Fund's distributor or an
affiliate of the Adviser as a broker, including as a principal broker, provided
that the brokerage transactions and procedures are in accordance with Rule 17e-1
under the Investment Company Act of 1940, as amended (the "Act"), and the then
effective Registration Statement of the Fund under the Securities Act of 1933,
as amended. All allocation of portfolio transactions shall be subject to such
policies and supervision as the Fund's Board of Directors or any committee
thereof deem appropriate and any brokerage policy set forth in the then current
Registration Statement of the Fund.
5. The Adviser shall see that there are rendered to the Board
of Directors of the Fund such periodic and special reports as the Board of
Directors may reasonably request, including any reports in respect to placement
of security transactions for the Portfolios.
6. If, in any fiscal year of a Portfolio, the sum of such
Portfolio's expenses (including deferred organizational expenses and investment
advisory fees, but excluding taxes, interest, brokerage fees, payments made to
the distributor which are deemed to be made pursuant to Rule 12b-1 under the Act
and, where permitted, extraordinary expenses) exceeds the expense limitations
applicable to such Portfolio imposed by state securities administrators, as such
limitations may be lowered or raised from time to time, the Adviser shall
reimburse such Portfolio in the amount of such excess; provided, however, that
such payment or refund shall be made only out of the advisory fees paid by the
Portfolio to the Adviser during the fiscal year the payment or refund becomes
due and shall not exceed such advisory fees unless payment of such excess is
required by any applicable state securities administrator and the Adviser agrees
to be bound by any such requirement.
7. For the services provided and the expenses assumed by the
Adviser pursuant to this Agreement, each Portfolio will pay to the Adviser as
full compensation therefor a fee based on the fee schedule set forth in Exhibit
A hereto. This fee will be computed based on net assets at the beginning of each
day and will be paid to the Adviser monthly on or before the fifteenth day of
the month next succeeding the month for which the fee is paid. The fee shall be
prorated for any fraction of a fiscal year at the commencement and termination
of this Agreement. Anything to the contrary notwithstanding, the Adviser may at
any time and from time to time waive any part or all of any fee payable to it
pursuant to this Agreement.
8. Services of the Adviser herein provided are not to be
deemed exclusive, and the Adviser shall be free to render similar services or
other services to others as long as its services hereunder shall not be impaired
thereby.
The Adviser agrees to indemnify the Fund and each Portfolio
with respect to any loss, liability, judgment, cost or penalty which the Fund or
any Portfolio may directly or indirectly suffer or incur in any way arising out
of or in connection with any breach of this Agreement by the Adviser.
The Adviser shall be liable to the Fund and its shareholders
or former shareholders for any negligence or willful misconduct on the part of
the Adviser or any of its directors, officers, employees, representatives or
agents in connection with the responsibilities assumed by it hereunder,
provided, however, that the Adviser shall not be liable for any investments made
by the Adviser in accordance with the explicit or implicit direction of the
Board of Directors of the Fund or the investment objectives and policies of the
Fund as set forth in the then current Registration Statement of the Fund, and
provided further that any liability of the Adviser resulting from a breach of
fiduciary duty with respect to the receipt of compensation for services shall be
limited to the period and amount set forth in Section 36(b)(3) of the Act.
9. It is understood that the officers, directors, agents and
shareholders of the Fund are or may be interested in the Adviser or the
distributor of the Fund as officers, directors, agents or shareholders and that
the officers, directors, shareholders and agents of the Adviser may be
interested in the Fund otherwise than as shareholders.
10. The effective date of this Agreement with respect to each
Portfolio shall be the date set forth on Exhibit A hereto, which date shall not
precede the date that this Agreement is approved by the vote of the holders of
at least a majority of the outstanding shares of such Portfolio and the vote of
the Board of Directors of the Fund, including the vote of a majority of the
directors who are not parties to this Agreement or "interested persons" (as
defined in the Act) of the Adviser or of the Fund, cast in person at a meeting
called for the purpose of voting on such approval.
Unless sooner terminated as hereinafter provided, this
Agreement shall continue in effect with respect to each Portfolio for a period
of more than two years from the date of its execution but only as long as such
continuance is specifically approved at least annually by (a) the Board of
Directors of the Fund or by the vote of a majority of the outstanding shares of
the applicable Portfolio and (b) the vote of a majority of the directors, who
are not parties to this Agreement or "interested persons" (as defined in the
Act) of the Adviser or of the Fund, cast in person at a meeting called for the
purpose of voting on such approval.
11. This Agreement may be terminated with respect to any
Portfolio at any time, without the payment of any penalty, by the Board of
Directors of the Fund or by the vote of a majority of the outstanding shares of
such Portfolio, or by the Adviser, upon 60 days' written notice to the other
party.
This Agreement shall automatically terminate in the event of
its "assignment" (as defined in the Act), provided, however, that such automatic
termination shall be prevented in a particular case by an order of exemption
from the Securities and Exchange Commission or a no-action letter of the staff
of the Commission to the effect that such assignment does not require
termination as a statutory or regulatory matter.
12. This Agreement may be modified by mutual consent, such
consent as to any Portfolio only to be authorized by a majority of the directors
who are not parties to this Agreement or "interested persons" (as defined in the
Act) of the Adviser or of the Fund and the vote of a majority of the outstanding
shares of such Portfolio.
13. Wherever referred to in this Agreement, the vote or
approval of the holders of a majority of the outstanding shares of a Portfolio
shall mean the lesser of (a) the vote of 67% or more of the shares of such
Portfolio at a meeting where more than 50% of the outstanding shares are present
in person or by proxy, or (b) the vote of more than 50% of the outstanding
shares of such Portfolio.
14. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder shall not
be thereby affected.
15. Any notice under this Agreement shall be in writing,
addressed, delivered or mailed, postage prepaid, to the other party at such
address as such other party may designate in writing for receipt of such notice.
16. The internal law, and not the law of conflicts, of the
State of Minnesota will govern all questions concerning the construction,
validity and interpretation of this Agreement and the performance of the
obligations imposed by this Agreement.
17. This Agreement, including its exhibits, constitutes the
entire agreement between the parties concerning its subject matter and
supersedes all prior and contemporaneous agreements, representations and
understandings of the parties.
IN WITNESS WHEREOF, the Fund and the Adviser have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
FIRST AMERICAN INVESTMENT
FUNDS, INC.
By
Its
FIRST BANK NATIONAL
ASSOCIATION
By
Its
EXHIBIT A
EFFECTIVE DATES:
Portfolio Effective Date
Stock Fund April 2, 1991
Special Equity Fund April 2, 1991
Fixed Income Fund April 2, 1991
Government Bond Fund April 2, 1991
Municipal Bond Fund April 2, 1991
ADVISORY FEES:
<TABLE>
<CAPTION>
Annual Advisory Fee
as a Percentage of
Portfolio Average Daily Net Asset Average Daily Net Assets
<S> <C> <C>
Stock Fund On the First $100,000,000 .70%
On the Next $150,000,000 .60%
On the Next $250,000,000 .50%
On the Average Assets of
Over $500,000,000 .40%
Special Equity Fund On the First $100,000,000 .70%
On the Next $150,000,000 .60%
On the Next $250,000,000 .50%
On the Average Assets of
Over $500,000,000 .40%
Fixed Income Fund On the First $100,000,000 .50%
On the Next $150,000,000 .40%
On the Average Assets of
Over $250,000,000 .30%
Government Bond On the First $100,000,000 .50%
Fund On the Next $150,000,000 .40%
On the Average Assets of
Over $250,000,000 .30%
Municipal Bond On the First $100,000,000 .50%
Fund On the Next $150,000,000 .40%
On the Average Assets of
Over $250,000,000 .30%
</TABLE>
Final
FIRST AMERICAN INVESTMENT FUNDS, INC.
AMENDMENT TO INVESTMENT ADVISORY AGREEMENT
AMENDMENT NO. 2
to
EXHIBIT A
EFFECTIVE DATES:
Portfolio Effective Date
Stock Fund April 2, 1991
Special Equity Fund April 2, 1991
Fixed Income Fund April 2, 1991
Government Bond Fund April 2, 1991
Municipal Bond Fund April 2, 1991
Intermediate Term Income Fund September 15, 1992
Equity Index Fund September 15, 1992
Regional Equity Fund September 15, 1992
Limited Term Income Fund September 15, 1992
Balanced Fund September 15, 1992
Asset Allocation Fund September 15, 1992
Mortgage Securities Fund September 15, 1992
Minnesota Insured Intermediate
Tax Free Fund December 31, 1993
Colorado Intermediate Tax Free Fund December 31, 1993
Emerging Growth Fund December 31, 1993
Technology Fund December 31, 1993
International Fund December 31, 1993
<TABLE>
<CAPTION>
ADVISORY FEES: Annual Advisory Fee
as a Percentage of
Portfolio Average Daily Net Assets Average Daily Net Assets
<S> <C> <C>
Stock Fund On the First $100,000,000 .70%
On the Next $150,000,000 .60%
On the Next $250,000,000 .50%
On the Average Assets of
Over $500,000,000 .40%
Special Equity On the First $100,000,000 .70%
Fund On the Next $150,000,000 .60%
On the Next $250,000,000 .50%
On the Average Assets of
Over $500,000,000 .40%
Fixed Income On the First $100,000,000 .50%
Fund On the Next $150,000,000 .40%
On the Average Assets of
Over $250,000,000 .30%
Government Bond On the First $100,000,000 .50%
Fund On the Next $150,000,000 .40%
On the Average Assets of
Over $250,000,000 .30%
Municipal Bond On the First $100,000,000 .50%
Fund On the Next $150,000,000 .40%
On the Average Assets of
Over $250,000,000 .30%
Intermediate Term On All Assets .70%
Income Fund
Equity Index Fund On All Assets .70%
Regional Equity On All Assets .70%
Fund
Limited Term On All Assets .70%
Income Fund
Balanced Fund On All Assets .70%
Asset Allocation On All Assets .70%
Fund
Mortgage Securities On All Assets .70%
Fund
Minnesota Insured On All Assets .70%
Intermediate Tax
Free Fund
Colorado Interme- On All Assets .70%
diate Tax Free Fund
Emerging Growth On All Assets .70%
Fund
Technology Fund On All Assets .70%
International Fund On All Assets 1.25%
</TABLE>
Final 11/94
FIRST AMERICAN INVESTMENT FUNDS, INC.
AMENDMENT TO INVESTMENT ADVISORY AGREEMENT
AMENDMENT NO. 4
to
EXHIBIT A
EFFECTIVE DATES:
Portfolio Effective Date
Stock Fund April 2, 1991
Special Equity Fund April 2, 1991
Fixed Income Fund April 2, 1991
Intermediate Government Bond Fund April 2, 1991
Intermediate Tax Free Fund April 2, 1991
Intermediate Term Income Fund September 15, 1992
Equity Index Fund September 15, 1992
Regional Equity Fund September 15, 1992
Limited Term Income Fund September 15, 1992
Balanced Fund September 15, 1992
Asset Allocation Fund September 15, 1992
Mortgage Securities Fund September 15, 1992
Minnesota Insured Intermediate
Tax Free Fund December 31, 1993
Colorado Intermediate Tax Free Fund December 31, 1993
Emerging Growth Fund December 31, 1993
Technology Fund December 31, 1993
International Fund December 31, 1993
Limited Volatility Stock Fund November 15, 1994
Equity Income Fund January 31, 1994
Diversified Growth Fund January 31, 1994
Limited Term Tax Free Income Fund January 31, 1994
ADVISORY FEES: Annual Advisory Fee
as a Percentage of
Portfolio Average Daily Net Assets Average Daily Net Assets
Stock Fund On All Assets .70%
Special Equity On All Assets .70%
Fund
Fixed Income On All Assets .70%
Fund
Intermediate On All Assets .70%
Government Bond
Fund
Intermediate Tax On All Assets .70%
Free Fund
Intermediate Term On All Assets .70%
Income Fund
Equity Index Fund On All Assets .70%
Regional Equity On All Assets .70%
Fund
Limited Term On All Assets .70%
Income Fund
Balanced Fund On All Assets .70%
Asset Allocation On All Assets .70%
Fund
Mortgage Securities On All Assets .70%
Fund
Minnesota Insured On All Assets .70%
Intermediate Tax
Free Fund
Colorado Interme- On All Assets .70%
diate Tax Free Fund
Emerging Growth On All Assets .70%
Fund
Technology Fund On All Assets .70%
International Fund On All Assets 1.25%
Limited Volatility On All Assets .70%
Stock Fund
Equity Income On All Assets .70%
Fund
Diversified Growth On All Assets .70%
Fund
Limited Term On All Assets .70%
Tax Free Income Fund
Final 8/94
FIRST AMERICAN INVESTMENT FUNDS, INC.
AMENDMENT TO INVESTMENT ADVISORY AGREEMENT
AMENDMENT NO. 3
to
EXHIBIT A
EFFECTIVE DATES:
Portfolio Effective Date
Stock Fund April 2, 1991
Special Equity Fund April 2, 1991
Fixed Income Fund April 2, 1991
Intermediate Government Bond Fund April 2, 1991
Intermediate Tax Free Fund April 2, 1991
Intermediate Term Income Fund September 15, 1992
Equity Index Fund September 15, 1992
Regional Equity Fund September 15, 1992
Limited Term Income Fund September 15, 1992
Balanced Fund September 15, 1992
Asset Allocation Fund September 15, 1992
Mortgage Securities Fund September 15, 1992
Minnesota Insured Intermediate
Tax Free Fund December 31, 1993
Colorado Intermediate Tax Free Fund December 31, 1993
Emerging Growth Fund December 31, 1993
Technology Fund December 31, 1993
International Fund December 31, 1993
<TABLE>
<CAPTION>
ADVISORY FEES: Annual Advisory Fee
as a Percentage of
Portfolio Average Daily Net Assets Average Daily Net Assets
<S> <C> <C>
Stock Fund On All Assets .70%
Special Equity On All Assets .70%
Fund
Fixed Income On All Assets .70%
Fund
Intermediate On All Assets .70%
Government Bond
Fund
Intermediate Tax On All Assets .70%
Free Fund
Intermediate Term On All Assets .70%
Income Fund
Equity Index Fund On All Assets .70%
Regional Equity On All Assets .70%
Fund
Limited Term On All Assets .70%
Income Fund
Balanced Fund On All Assets .70%
Asset Allocation On All Assets .70%
Fund
Mortgage Securities On All Assets .70%
Fund
Minnesota Insured On All Assets .70%
Intermediate Tax
Free Fund
Colorado Interme- On All Assets .70%
diate Tax Free Fund
Emerging Growth On All Assets .70%
Fund
Technology Fund On All Assets .70%
International Fund On All Assets 1.25%
</TABLE>
Final
FIRST AMERICAN INVESTMENT FUNDS, INC.
SUPPLEMENT DATED AS OF DECEMBER 31, 1993 TO
INVESTMENT ADVISORY AGREEMENT
WHEREAS, First American Investment Funds, Inc., a Maryland
corporation (the "Fund"), and First Bank National Association, a national
banking association organized and existing under the laws of the United States
of America (the "Adviser"), previously entered into that Investment Advisory
Agreement dated April 2, 1991 (the "Advisory Agreement"); and
WHEREAS, the Fund is creating a new Portfolio (as such term is
defined in the Advisory Agreement) known as International Fund; and
WHEREAS, the Fund and the Adviser contemplate that the Adviser
will retain a sub-adviser with respect to International Fund and wish to make
provision therefor.
NOW, THEREFORE, the Fund and the Adviser agree as follows:
1. In performing its services under the Advisory Agreement,
the Adviser may at its option and expense, with respect to International Fund
only, appoint a sub-adviser, which shall assume such responsibilities and
obligations of the Adviser pursuant to the Advisory Agreement as shall be
delegated to the sub-adviser; provided, however, that any discretionary
investment decisions made by the sub-adviser on behalf of International Fund
shall be subject to approval or ratification by the Adviser. Any appointment of
a sub-adviser and assumption of responsibilities and obligations of the Adviser
by such sub-adviser shall be subject to approval by the Board of Directors of
the Fund and, to the extent (if any) required by law, by the shareholders of
International Fund. Any appointment of a sub-adviser for International Fund
pursuant hereto shall in no way limit or diminish the Adviser's obligations and
responsibilities under the Advisory Agreement.
2. The Advisory Agreement, as supplemented hereby, is hereby
ratified and confirmed in all respects.
IN WITNESS WHEREOF, the Fund and the Adviser have caused this
Supplement to be executed by their duly authorized officers as of the day and
year first above written.
FIRST AMERICAN INVESTMENT FUNDS, INC.
By
Its
FIRST BANK NATIONAL ASSOCIATION
By
Its
EXHIBIT 5(b)
SUB-ADVISORY AGREEMENT
This Agreement, made as of this 28th day of March 1994, by and
between First Bank National Association, a national banking association
organized and existing under the laws of the United States of America (the
"Adviser"), and Marvin & Palmer Associates, Inc., a Delaware corporation (the
"Sub-Adviser").
WHEREAS, First American Investment Funds, Inc., a Maryland
corporation ("FAIF"), on behalf of its International Fund, a separately managed
series of FAIF ("International Fund"), has appointed the Adviser as
International Fund's investment adviser pursuant to an Investment Advisory
Agreement dated April 2, 1991, as amended (the "Advisory Agreement"); and
WHEREAS, pursuant to the terms of the Advisory Agreement, the
Adviser desires to appoint the Sub-Adviser as its sub-adviser for International
Fund, and the Sub-Adviser is willing to act in such capacity upon the terms set
forth herein; and
WHEREAS, pursuant to the terms of the Advisory Agreement, FAIF
has approved the appointment of the Sub-Adviser as the sub-adviser for
International Fund.
NOW, THEREFORE, the Adviser and the Sub-Adviser agree as
follows:
1. The Adviser hereby retains the Sub-Adviser, and the
Sub-Adviser hereby agrees to act, as sub-adviser for, and to manage the
investment of the assets of, International Fund as set forth herein. Without
limiting the generality of the foregoing, it is specifically understood and
agreed by the Adviser and the Sub-Adviser that:
(a) The investment of International Fund's assets shall at all
times be subject to the investment objectives, policies and
restrictions of International Fund as set forth in FAIF's
then-effective Registration Statement under the Securities Act of
1933, as amended, including the Prospectus and Statement of
Additional Information of International Fund contained therein. The
Adviser shall communicate to the Sub-Adviser any changes or
additions to or interpretations of such investment objectives,
policies and restrictions of International Fund made by the Board
of Directors of FAIF (the "Board"). The Sub-Adviser shall report to
the Adviser and the Board regularly at such times and in such
detail as the Adviser or the Board may from time to time request in
order to permit the Adviser and the Board to determine the
adherence of International Fund to its investment objectives,
policies and restrictions.
(b) The Sub-Adviser hereby agrees that upon the request of the
Board or the Adviser, copies of all records pertaining to
International Fund's investments will be provided to FAIF or to
such person as is designated by FAIR. If a transfer of investment
advisory or sub-advisory services with respect to International
Fund should occur, the Sub-Adviser will promptly and at its own
expense take all steps necessary or appropriate to segregate such
records and deliver them to FAIF or to such person as is designated
by FAIF.
(c) Any investment decisions made by the Sub-Adviser on behalf
of International Fund shall be subject, in the discretion of the
Adviser, to review, approval or ratification by the Adviser.
In acting hereunder the Sub-Adviser shall be an independent contractor and,
unless otherwise expressly provided or authorized hereunder or by the Board,
shall have no authority to act for or represent the Adviser, FAIF or
International Fund in any way or otherwise be an agent of the Adviser, FAIF or
International Fund.
2. The Sub-Adviser, at its own expense, shall provide all
office space, personnel and facilities necessary and incident to the performance
of the Sub-Adviser's services hereunder. The Sub-Adviser may consult with
counsel to International Fund and shall be protected insofar as it acts in
conformity with advice rendered to it by such counsel. The fees and expenses of
counsel to International Fund shall be paid by International Fund.
3. The Sub-Adviser shall be responsible only for those
expenses expressly stated in paragraph 2 to be the responsibility of the
Sub-Adviser and shall not be responsible for any other expenses of the Adviser,
International Fund or FAIF, including, as illustrative and without limitation,
fees and charges of any custodian (including charges as custodian and for
keeping books and records and similar services to FAIF and International Fund);
fees and expenses of directors; fees and expenses of independent auditors, legal
counsel, transfer agents, dividend disbursing agents, and registrars; costs of
and incident to issuance, redemption and transfer of International Fund's
shares, and distributions to shareholders (including dividend payments and
reinvestment of dividends); brokers' commissions; interest charges; taxes and
corporate fees payable to any government or governmental body or agency
(including those incurred on account of the registration or qualification of
securities issued by FAIF); dues and other expenses incident to FAIF's
membership in the Investment Company Institute and other like associations;
costs of stock certificates, shareholder meetings, corporate reports, reports
and notices to shareholders; and costs of printing, stationery and bookkeeping
forms.
4. The Sub-Adviser shall not purchase or sell securities for
International Fund in any transaction in which the Sub-Adviser or any affiliate
of the Sub-Adviser is acting as broker or dealer. The Sub-Adviser may, with the
prior consent of the Adviser, utilize FAIF's distributor or the Adviser or an
affiliate of the Adviser as a broker, including as a principal broker, provided
that the brokerage transactions and procedures are in accordance with Rule 17e-1
under the Investment Company Act of 1940, as amended (the "Act"), other
applicable provisions, if any, of the Act, and the then-effective Registration
Statement of FAIF under the Securities Act of 1933, as amended. All allocation
of portfolio transactions shall be subject to such policies and supervision as
the Board or any committee thereof deem appropriate and any brokerage policy set
forth in the then-current Registration Statement of FAIF as provided to the
Sub-Adviser. The Sub-Adviser shall provide to the Adviser and the Board such
reports in respect to placement of security transactions for International Fund
as the Adviser or the Board may reasonably request. The Sub-Adviser also shall
provide to the Adviser and the Board such reports assessing the likelihood, if
any, of expropriation, nationalization, freezes or confiscation or International
Fund's assets in each country in which it invests; foreseeable difficulties, if
any, in converting International Fund's cash and cash equivalents into U.S.
dollars; and similar matters, as the Adviser or the Board may reasonably request
in order to assist the Board in making the determinations required to be made by
it pursuant to Rule 17f-5 under the Act.
5. For the services provided and the expenses assumed by the
Sub-Adviser pursuant to this Agreement, the Adviser will pay to the Sub-Adviser
as full compensation therefor a fee based on an annual rate of 0.75% of the
first $100 million of International Fund's average daily net assets, 0.70% of
the second $100 million of International Fund's average daily assets, 0.65% of
the third $100 million of International Fund's average daily net assets, and
0.60% of International Fund's average daily assets in excess of $300 million.
This fee will be computed bases on net assets at the beginning of each day and
will be paid to the Sub-Adviser monthly on or before the fifteenth day of the
month next succeeding the month for which the fee is paid. The fee shall be
prorated for any fraction of a fiscal year at the commencement and termination
of this Agreement. Anything to the contrary herein notwithstanding, the
Sub-Adviser may at any time and from time to time waive any part or all of any
fee payable to it pursuant to this Agreement.
6. Nothing in this Agreement shall prevent the Sub-Adviser or
any partner, officer, employee or other affiliate thereof from acting as
investment adviser for any other person, firm or corporation, or from engaging
in any other lawful activity, and shall not in any way limit or restrict the
Sub-Adviser or any of its partners, officers, employees or agents from buying,
selling or trading any securities for its or their own accounts or for the
accounts of others for whom it or they may be acting, provided, however, that
the Sub-Adviser will undertake and permit such persons to undertake no
activities which, in its judgment, will adversely affect the performance of its
obligations under this Agreement.
The Sub-Adviser agrees to indemnify International Fund, FAIF
and the Adviser with respect to any loss, liability, judgment, cost or penalty
which International Fund, FAIF or the Adviser may directly or indirectly suffer
or incur in any way arising out of or in connection with any material breach of
this Agreement by the Sub-Adviser. The Adviser agrees to indemnify the
Sub-Adviser with respect to any loss, liability, judgment, cost or penalty which
the Sub-Adviser may directly or indirectly suffer or incur in any way arising
out of the performance of its duties under this Agreement, except as provided in
the following paragraphs.
The Sub-Adviser shall give International Fund the benefit of
its best judgment and effort in rendering services hereunder, but the
Sub-Adviser shall not be liable for any act or omission or for any loss
sustained by International Fund in connection with the matters to which this
Agreement relates, except a loss resulting from willful misfeasance, bad faith
or negligence in the performance of its duties, or by reason of its reckless
disregard of its obligations and duties, under this Agreement. The Sub-Adviser
shall not be entitled to indemnity for any loss, liability, judgment, cost or
penalty resulting from willful misfeasance, bad faith or negligence in the
performance of its duties, or by reason of its reckless disregard of its
obligations and duties, under this Agreement.
7. The Sub-Adviser represents, warrants and agrees that the
Sub-Adviser is registered as an "investment adviser" under the Investment
Advisers Act of 1940, as amended (the "Advisers Act") and is and shall continue
at all times to be in compliance in all material respects with the requirements
imposed upon it by the Advisers Act. The Sub-Adviser agrees to (a) supply the
Adviser with such documents as the Adviser may reasonably request to document
the Sub-Adviser's compliance with such laws and regulations, and (b) immediately
notify the Adviser of the occurrence of any event which would disqualify the
Sub-Adviser from serving as an investment adviser of an investment company
pursuant to any applicable law or regulation. The Sub-Adviser will furnish to
the Adviser a copy of any amendment to the Sub-Adviser Form ADV promptly
following the filing of such amendment with the Securities and Exchange
Commission.
8. The Adviser and the Sub-Adviser each represents and
warrants that it has the power to execute and deliver this Agreement and any
other documentation relating hereto and to perform its respective obligations
under this Agreement and that it has taken all necessary action to authorize
such execution, delivery and performance. Such execution, delivery and
performance do not violate or conflict with any law applicable to the Adviser or
the Sub-Adviser, respectively, any order or judgment of any court or other
governmental agency, or any contractual restriction binding on or affecting the
Adviser or the Sub-Adviser, respectively. The obligations of the Adviser and the
Sub-Adviser, respectively, under this Agreement constitute their respective
legal, valid and binding obligations, enforceable against each of them in
accordance with the terms hereof.
9. The effective date of this Agreement shall be the date set
forth in the first paragraph hereof. Unless sooner terminated as hereinafter
provided, this Agreement shall continue in effect for a period of more than two
years from the date of its execution but only as long as such continuance is
specifically approved at least annually by (a) the Board or by the vote of a
majority of the outstanding shares of International Fund and (b) the vote of a
majority of the directors, who are not parties to this Agreement or "interested
persons" (as defined in the Act) of the Adviser, of the Sub-Adviser or of FAIF,
cast in person at a meeting called for the purpose of voting on such approval.
10. This Agreement may be terminated at any time, without the
payment of any penalty, by the Board or by the vote of a majority of the
outstanding shares of International Fund, or by the Adviser or the Sub-Adviser,
upon 60 days' written notice to the other parties.
This Agreement shall automatically terminate in the event of
its "assignment" (as defined in the Act), provided, however, that such automatic
termination shall be prevented in a particular case by an order of exemption
from the Securities and Exchange Commission or a no-action letter of the staff
of the Commission to the effect that such assignment does not require
termination as a statutory or regulatory matter.
11. This Agreement may be modified by mutual consent, such
consent only to be authorized by a majority of the directors of FAIF who are not
parties to this Agreement or "interested persons" (as defined in the Act) of the
Adviser, of the Sub-Adviser or of FAIF and the vote of a majority of the
outstanding shares of International Fund.
12. Wherever referred to in this Agreement, the vote or
approval of the holders of a majority of the outstanding shares of International
Fund shall mean the lesser of (a) the vote of 67% or more of the shares of
International Fund at a meeting where more than 50% of the outstanding shares
are present in person or by proxy, or (b) the vote of more than 50% of the
outstanding shares of International Fund.
13. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder shall not
be thereby affected.
14. Any notice under this Agreement shall be in writing,
addressed, delivered or mailed, postage prepaid, to the other party at such
address as such other party may designate in writing for receipt of such notice.
15. The internal law, and not the law of conflicts, of the
State of Minnesota will govern all questions concerning the construction,
validity and interpretation of this Agreement and the performance of the
obligations imposed by this Agreement.
16. This Agreement constitutes the entire agreement between
the parties concerning its subject matter and supersedes all prior and
contemporaneous agreements, representations and understandings of the parties.
IN WITNESS WHEREOF, the Adviser and the Sub-Adviser have
caused this Agreement to be executed by their duly authorized officers as of the
day and year first above written.
FIRST BANK NATIONAL ASSOCIATION
By
Its
MARVIN & PALMER ASSOCIATES, INC.
By
Its
EXHIBIT 6(a)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this ____ day of __________, 1994, between
FIRST AMERICAN INVESTMENT FUNDS, INC., a Maryland corporation (the "Fund"), and
SEI Financial Services Company (the "Distributor"), a Pennsylvania corporation.
WHEREAS, the Fund is registered as an investment company with the
Securities and Exchange Commission ("SEC") under the Investment Company Act of
1940, as amended ("1940 Act"), and its Shares are registered with the SEC under
the Securities Act of 1933, as amended ("1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended;
WHEREAS, the Fund desires to appoint the Distributor to act as
distributor and shareholder servicing agent for the shares of the Fund's
portfolios, as now in existence or hereinafter created from time to time
(collectively, the "Shares"), in accordance with the terms and conditions of
this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Fund and Distributor hereby agree as follows:
ARTICLE 1. Sale of Shares. The Fund grants to the Distributor the
exclusive right to sell Shares of each portfolio of the Fund (each a
"Portfolio"), at the net asset value per Share plus, in the case of retail class
Shares, the applicable sales charge, in accordance with the current prospectus,
as agent and on behalf of the Fund, during the term of this Agreement and
subject to the registration requirements of the 1933 Act, the rules and
regulations of the SEC and the laws governing the sale of securities in the
various states ("Blue Sky Laws").
ARTICLE 2. Solicitation of Sales. In consideration of these rights
granted to the Distributor, the Distributor agrees to use all reasonable
efforts, consistent with its other business, in connection with the distribution
of Shares of the Fund; provided, however, that the Distributor shall not be
prevented from entering into like arrangements with other issuers. The
provisions of this paragraph do not obligate the Distributor to register as a
broker or dealer under the Blue Sky Laws of any jurisdiction when it determines
it would be uneconomical for it to do so or to maintain its registration in any
jurisdiction in which it is now registered nor obligate the Distributor to sell
any particular number of Shares.
ARTICLE 3. Authorized Representations. The Distributor is not
authorized by the Fund to give any information or to make any representations
other than those contained in the current registration statements and
prospectuses of the Fund filed with the SEC or contained in Shareholder reports
or other material that may be prepared by or on behalf of the Fund for the
Distributor's use. The Distributor may prepare and distribute sales literature
and other material as it may deem appropriate, provided that such literature and
materials have been approved by the Fund prior to their use.
ARTICLE 4. Registration of Shares. The Fund agrees that it will take
all action necessary to register Shares under the federal and state securities
laws so that there will be available for sale the number of Shares the
Distributor may reasonably be expected to sell and to pay all fees associated
with said registration. The Fund shall make available to the Distributor such
number of copies of its currently effective prospectus and statement of
additional information as the Distributor may reasonably request. The Fund shall
furnish to the Distributor copies of all information, financial statements and
other papers which the Distributor may reasonably request for use in connection
with the distribution of Shares of the Fund.
ARTICLE 5. Compensation and Allocation of Expenses.
(a) Pursuant to the Fund's retail class Plan of Distribution adopted by
the Portfolios in accordance with Rule 12b-1 under the 1940 Act (the "Plan"),
the retail class of each Portfolio will pay the Distributor a total fee in
connection with the servicing of shareholder accounts of such class and in
connection with distribution-related services provided in respect of such class,
calculated and payable monthly, at the annual rate of .25% of the value of the
average daily net assets of such class. All or any portion of such total fee may
be payable as Shareholder Servicing Fee as described in the Plan, and all or any
portion of such total fee may be payable as a Distribution Fee as described in
the Plan, as determined from time to time by the Fund's Board of Directors.
Until further action by the Board of Directors, all of such fee shall be
designated and payable as a Shareholder Servicing Fee. Amounts payable to the
Distributor under the Plan may exceed or be less than the Distributor's actual
Distribution Expenses and Shareholder Servicing Costs as described in (b) below.
In the event such Distribution Expenses and Shareholder Servicing Costs exceed
amounts payable to the Distributor under the Plan, the Distributor shall not be
entitled to reimbursement by the Fund.
(b) During the period of this Agreement, the Fund shall pay or cause to
be paid all expenses, costs and fees incurred by the Fund which are not assumed
by the Distributor. The Distributor agrees to provide, and shall pay costs which
it incurs in connection with providing, administrative or accounting services to
shareholders of the retail class of each Portfolio (such costs are referred to
as "Shareholder Servicing Costs"). The Distributor shall also pay all of its own
costs incurred in connection with the distribution of the shares of each such
class ("Distribution Expenses"). Distribution Expenses include, but are not
limited to, the following expenses incurred by the Distributor: initial and
ongoing sales compensation (in addition to sales loads) paid to investment
executives of the Distributor and to other broker-dealers and participating
financial institutions which the Distributor has agreed to pay; expenses
incurred in the printing of prospectuses, statements of additional information
and reports used for sales purposes; expenses of preparation and distribution of
sales literature; expenses of advertising of any type; an allocation of the
Distributor's overhead; payments to and expenses of persons who provide support
services in connection with the distribution of Fund shares; and other
distribution-related expenses. Shareholder Servicing Costs include all expenses
of the Distributor incurred in connection with providing administrative or
accounting services to shareholders of each such class, including, but not
limited to, an allocation of the Distributor's overhead and payments made to
persons, including employees of the Distributor, who respond to inquiries of
shareholders regarding their ownership of such classes of shares, or who provide
other administrative or accounting services not otherwise required to be
provided by the applicable Portfolio's investment adviser, transfer agent or
other agent.
(c) In each year during which this Agreement remains in effect, the
Distributor will prepare and furnish to the Board of Directors of the Fund, on a
quarterly basis, written reports complying with the requirements of Rule 12b-1
under the 1940 Act that set forth the amounts expended under this Agreement and
the Plan on a class by class basis and the purposes for which those expenditures
were made.
ARTICLE 6. Indemnification of Distributor. The Fund agrees to indemnify
and hold harmless the Distributor and each of its directors and officers and
each person, if any, who controls the Distributor within the meaning of Section
15 of the 1933 Act against any loss, liability, claim, damages or expense
(including the reasonable cost of investigating or defending any alleged loss,
liability, claim, damages, or expense and reasonable counsel fees and
disbursements incurred in connection therewith), arising by reason of any person
acquiring any Shares, based upon the ground that the registration statement,
prospectus, Shareholder reports or other information filed or made public by the
Fund (as from time to time amended) included an untrue statement of a material
fact or omitted to state a material fact required to be stated or necessary in
order to make the statements made not misleading. However, the Fund does not
agree to indemnify the Distributor or hold it harmless to the extent that the
statements or omission was made in reliance upon, and in conformity with,
information furnished to the Fund by or on behalf of the Distributor.
In no case (i) is the indemnity of the Fund to be deemed to protect the
Distributor against any liability to the Fund or its Shareholders to which the
Distributor or such person otherwise would be subject by reason of willful
misfeasance, bad faith or negligence in the performance of its duties or by
reason of its reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Fund to be liable to the Distributor under the
indemnity agreement contained in this paragraph with respect to any claim made
against the Distributor or any person indemnified unless the Distributor or
other person shall have notified the Fund in writing of the claim within a
reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the
Distributor or such other person (or after the Distributor or the person shall
have received notice of service on any designated agent). However, failure to
notify the Fund of any claim shall not relieve the Fund from any liability which
it may have to the Distributor or any person against whom such action is brought
otherwise than on account of its indemnity agreement contained in this
paragraph.
The Fund shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the Fund elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the Fund and satisfactory to the indemnified defendants in the suit
whose approval shall not be unreasonably withheld. In the event that the Fund
elects to assume the defense of any suit and retain counsel, the indemnified
defendants shall bear the fees and expenses of any additional counsel retained
by them. If the Fund does not elect to assume the defense of a suit, it will
reimburse the indemnified defendants for the reasonable fees and expenses of any
counsel retained by the indemnified defendants.
The Fund agrees to notify the Distributor promptly of the commencement
of any litigation or proceedings against it or any of its officers or Directors
in connection with the issuance or sale of any of its Shares.
ARTICLE 7. Indemnification of Fund. The Distributor covenants and
agrees that it will indemnify and hold harmless the Fund and each of its
Directors and officers and each person, if any, who controls the Fund within the
meaning of Section 15 of the Act, against any loss, liability, damages, claim or
expense (including the reasonable cost of investigating or defending any alleged
loss, liability, damages, claim or expense and reasonable counsel fees incurred
in connection therewith) based upon the 1933 Act or any other statute or common
law and arising by reason of any person acquiring any Shares, and alleging a
wrongful act of the Distributor or any of its employees or alleging that the
registration statement, prospectus, Shareholder reports or other information
filed or made public by the Fund (as from time to time amended) included an
untrue statement of a material fact or omitted to state a material fact required
to be stated or necessary in order to make the statements not misleading,
insofar as the statement or omission was made in reliance upon and in conformity
with information furnished to the Fund by or on behalf of the Distributor.
In no case (i) is the indemnity of the Distributor in favor of the Fund
or any other person indemnified to be deemed to protect the Fund or any other
person against any liability to which the Fund or such other person would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Fund or any person
indemnified unless the Fund or person, as the case may be, shall have notified
the Distributor in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon the Fund or upon any person (or after the
Fund or such person shall have received notice of service on any designated
agent). However, failure to notify the Distributor of any claim shall not
relieve the Distributor from any liability which it may have to the Fund or any
person against whom the action is brought otherwise than on account of its
indemnity agreement contained in this paragraph.
The Distributor shall be entitled to participate, at its own expense,
in the defense or, if it so elects, to assume the defense of any suit brought to
enforce the claim, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by the Distributor and satisfactory
to the indemnified defendants whose approval shall not be unreasonably withheld.
In the event that the Distributor elects to assume the defense of any suit and
retain counsel, the defendants in the suit shall bear the fees and expenses of
any additional counsel retained by them. If the Distributor does not elect to
assume the defense of any suit, it will reimburse the indemnified defendants in
the suit for the reasonable fees and expenses of any counsel retained by them.
The Distributor agrees to notify the Fund promptly of the commencement
of any litigation or proceedings against it in connection with the issue and
sale of any of the Fund's Shares.
ARTICLE 8. Effective Date. This Agreement shall be effective upon its
execution, and unless terminated as provided, shall continue in force for one
year from the effective date and thereafter from year to year, provided that
such annual continuance is approved by (i) either the vote of a majority of the
Directors of the Fund, or the vote of a majority of the outstanding voting
securities of the Fund, and (ii) the vote of a majority of those Directors of
the Fund who are not parties to this Agreement or the Fund's Distribution Plan
or interested persons of any such party ("Qualified Directors"), cast in person
at a meeting called for the purpose of voting on the approval. This Agreement
shall automatically terminate in the event of its assignment. As used in this
paragraph the terms "vote of a majority of the outstanding voting securities",
"assignment" and "interested person" shall have the respective meanings
specified in the 1940 Act. In addition, this Agreement may at any time be
terminated without penalty by the Distributor, by a vote of a majority of
Qualified Directors or by vote of a majority of the outstanding voting
securities of the Fund upon not less than sixty days prior written notice to the
other party.
ARTICLE 9. Notices. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to the party giving
notice: if to the Fund, at c/o Kevin P. Robins, General Counsel, SEI Financial
Management Corporation, 680 East Swedesford Road, Wayne, PA 19087; and to its
Secretary at the following address: Michael J. Radmer, Esq., Dorsey & Whitney
P.L.L.P., 220 South Sixth Street, Minneapolis, MN 55402-1498; and if to the
Distributor, 680 East Swedesford Road, Wayne, PA 19087.
ARTICLE 10. Multiple Originals. This Agreement may be executed in two
or more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
IN WITNESS, the Fund and Distributor have each duly executed this
Agreement, as of the day and year above written.
FIRST AMERICAN INVESTMENT
FUNDS, INC.
By:________________________
Attest:______________________
SEI FINANCIAL SERVICES
COMPANY
By:________________________
Attest:______________________
EXHIBIT 6(b)
FIRST AMERICAN INVESTMENT FUNDS, INC.
DISTRIBUTION AND SERVICE AGREEMENT
FOR
CLASS B SHARES (CONTINGENT DEFERRED SALES CHARGE CLASSES)
THIS AGREEMENT is made as of the 1st day of August, 1994, as amended
September 14, 1994, between FIRST AMERICAN INVESTMENT FUNDS, INC., a Maryland
corporation (the "Fund"), and SEI Financial Services Company (the
"Distributor"), a Pennsylvania corporation.
WHEREAS, the Fund is registered as an investment company with the
Securities and Exchange Commission ("SEC") under the Investment Company Act of
1940, as amended ("1940 Act"), and its shares are registered with the SEC under
the Securities Act of 1933, as amended ("1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended;
WHEREAS, the Fund desires to appoint the Distributor to act as
distributor and shareholder servicing agent for the Class B shares of the Fund's
portfolios, as now in existence or hereinafter created from time to time
(collectively, the "Shares"), in accordance with the terms and conditions of
this Agreement:
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Fund and Distributor hereby agree as follows:
ARTICLE 1. Distribution Activities.
A. Sale of Shares. The Fund grants to the Distributor the
exclusive right to sell Shares of each portfolio of the Fund (each a
"Portfolio"), at net asset value in accordance with the current prospectus for
the Shares, as agent and on behalf of the Fund, during the term of this
Agreement and subject to the registration requirements of the 1933 Act, the
rules and regulations of the SEC and the laws governing the sale of securities
in the various states ("Blue Sky Laws").
B. Solicitation of Sales. In consideration of these rights
granted to the Distributor, the Distributor agrees to use all reasonable
efforts, consistent with its other business, in connection with the distribution
of Shares; provided, however, that the Distributor shall not be prevented from
entering into like arrangements with other issuers. The provisions of this
paragraph do not obligate the Distributor to register as a broker or dealer
under the Blue Sky Laws of any jurisdiction when it determines it would be
uneconomical for it to do so or to maintain its registration in any jurisdiction
in which it is now registered or obligate the Distributor to sell any particular
number of Shares.
C. Authorized Representations. The Distributor is not
authorized by the Fund to give any information or to make any representations
other than those contained in the current registration statements and
prospectuses of the Fund with respect to the Shares filed with the SEC or
contained in Shareholder reports or other material that may be prepared by or on
behalf of the Fund for the Distributor's use. The Distributor may prepare and
distribute sales literature and other material as it may deem appropriate,
provided that such literature and materials have been approved by the Fund prior
to their use.
D. Registration of Shares. The Fund agrees that it will take
all action necessary to register Shares under the federal and state securities
laws so that there will be available for sale the number of Shares the
Distributor may reasonably be expected to sell and to pay all fees associated
with said registration. The Fund shall make available to the Distributor such
number of copies of its currently effective prospectus and statement of
additional information as the Distributor may reasonably request. The Fund shall
furnish to the Distributor copies of all information, financial statements and
other papers which the Distributor may reasonably request for use in connection
with the distribution of Shares of the Fund.
ARTICLE 2. Shareholder Servicing Activities.
A. Appointment. The Fund hereby appoints the Distributor as
servicing agent for the Shares of each Portfolio, as agent and on behalf of the
Fund in accordance with and during the term of this Agreement, and the
Distributor hereby accepts such appointment.
B. Shareholder Servicing Activities. As servicing agent for
the Shares of each Portfolio, and in consideration of the compensation payable
pursuant to Article 4 hereof, the Distributor shall provide personal, continuing
services to investors in the Shares of each Portfolio, including but not limited
to providing ongoing servicing and/or maintenance of shareholder accounts with
respect to the Shares of the Portfolios, responding to inquiries of the holders
of Shares regarding their ownership of Shares or their accounts with the Fund,
and providing administrative or accounting services with respect to the Shares
of the Portfolios not otherwise provided by other agents of the Fund.
Notwithstanding the foregoing, if the National Association of Securities
Dealers, Inc. ("NASD") adopts a definition of "service fee" for purposes of
Section 26(d) of the NASD Rules of Fair Practice that differs from the
definition of shareholder servicing activities in this paragraph, or if the NASD
adopts a related definition intended to define the same concept, the definition
of shareholder servicing activities in this paragraph shall be automatically
amended, without further action of the parties, to conform to such NASD
definition.
ARTICLE 3. Compensation for Distribution Activities.
(a) As compensation for providing distribution services
pursuant to Article 1 hereof, the Distributor shall receive:
(1) In respect of the Shares of each Portfolio,
pursuant to the Fund's Plan of Distribution with respect to
Class B Shares adopted by each such class in accordance with
Rule 12b-1 under the 1940 Act (the "Distribution Plan"), a fee
in connection with distribution-related services provided in
respect of such class, calculated and payable monthly as soon
as practicable after the end of the calendar month within
which such fee accrues, but in any event prior to the tenth
day following the end of such calendar month, at the annual
rate of .75% of the value of the average daily net assets of
such class.
(2) All contingent deferred sales charges applied on
redemptions of Shares of such Portfolio, payable at such time
as the redemption proceeds in respect of the redemption giving
rise to the contingent deferred sales charge is paid to the
redeeming shareholder; provided that whether and at what rate
a contingent deferred sales charge will be imposed with
respect to a redemption shall be determined in accordance
with, and in the manner set forth in, the Registration
Statement registering the Shares then in effect with the SEC.
(b) Amounts payable to the Distributor under the Distribution
Plan may exceed or be less than the Distributor's actual costs incurred in
connection with the distribution of the Shares of each such class, as described
in Article 5 below. In the event such Distribution Expenses (as defined in
Article 5) exceed amounts payable to the Distributor under the Distribution
Plan, the Distributor shall not be entitled to reimbursement by the Fund.
(c) The Distributor may reallow any or all of the distribution
fees and contingent deferred sales charges which it is paid under this Agreement
to such dealers as the Distributor may from time to time determine.
(d) The Distributor may transfer its right to the payments
described in this Article 3 to third persons who provide funding to the
Distributor, provided that any such transfer shall not be deemed a transfer of
the Distributor's obligations under this Agreement. Upon receipt of direction
from the Distributor to pay such fees to a transferee, the Fund shall make
payment in accordance with such direction.
ARTICLE 4. Compensation for Shareholder Service Activities.
(a) As compensation for providing shareholder services
pursuant to Article 2 hereof, the Distributor shall receive in respect of the
Shares of each Portfolio, pursuant to the Fund's Service Plan with respect to
Class B Shares adopted by each such class in accordance with shareholder
services provided in respect of such class, calculated and payable monthly, at
the annual rate of .25% of the value of the average daily net assets of such
class.
(b) Amounts payable to the Distributor under the Service Plan
may exceed or be less than the Distributor's actual costs incurred in connection
with the provision of shareholder services for the Shares, as described in
Article 5 below. In the event such Shareholder Servicing Expenses (as defined in
Article 5) exceed amounts payable to the Distributor under the Service Plan, the
Distributor shall not be entitled to reimbursement by the Fund.
(c) The Distributor may reallow all or any part of, or pay
compensation from, the amounts payable to the Distributor under the Service Plan
to such persons, including employees of the Distributor, and institutions who
respond to inquiries of holders of the Shares of the Portfolios or provide other
administrative or accounting services for the Shares, as the Distributor may
from time to time determine.
ARTICLE 5. Expenses. During the period of this Agreement, the Fund
shall pay or cause to be paid all expenses, costs and fees incurred by the Fund
which are not assumed by the Distributor. The Distributor shall pay all of its
own costs incurred in connection with the distribution of the Shares of each
Portfolio pursuant to Article 1 hereof ("Distribution Expenses"). The
Distributor shall also pay all of its own costs incurred in connection with
providing the personal, continuing services to shareholders of the Shares of
each Portfolio pursuant to Article 3 hereof ("Shareholder Servicing Expenses").
Distribution Expenses include, but are not limited to, the following expenses
incurred by the Distributor: initial and ongoing sales compensation (in addition
to sales loads) paid to investment executives of the Distributor and to other
broker-dealers and participating financial institutions which the Distributor
has agreed to pay; expenses incurred in the printing of prospectuses, statements
of additional information and reports used for sales purposes; expenses of
preparation and distribution of sales literature; expenses of advertising of any
type; an allocation of the Distributor's overhead; payments to and expenses of
persons who provide support services in connection with the distribution of Fund
shares; and other distribution-related expenses. Shareholder Servicing Expenses
include all expenses of the Distributor incurred in connection with providing
administrative or accounting services to shareholders of the Shares of each
Portfolio, including, but not limited to, an allocation of the Distributor's
overhead and payments made to persons, including employees of the Distributor,
who respond to inquiries of shareholders regarding their ownership of Shares, or
who provide other administrative or accounting services for the Shares class not
otherwise required to be provided by the applicable Portfolio's investment
adviser, transfer agent or other agent.
(b) In each year during which this Agreement remains in effect, the
Distributor will prepare and furnish to the Board of Directors of the Fund, on a
quarterly basis, written reports complying with the requirements of Rule 12b-1
under the 1940 Act that set forth (i) the amounts expended under this Agreement
and the Distribution Agreement as Distribution Expenses for the Shares of each
Portfolio and the purposes for which those expenditures were made, and (ii) the
amounts expended under this Agreement and the Service Agreement as Shareholder
Servicing Expenses for the Shares of each Portfolio and the purposes for which
those expenditures were made.
ARTICLE 6. Indemnification of Distributor. The Fund agrees to indemnify
and hold harmless the Distributor and each of its directors and officers and
each person, if any, who controls the Distributor within the meaning of Section
15 of the 1933 Act against any loss, liability, claim, damages or expenses
(including the reasonable cost of investigating or defending any alleged loss,
liability, claim, damages or expenses and reasonable counsel fees and
disbursements incurred in connection therewith), arising by reason of any person
acquiring any Shares, based upon the ground that the registration statement,
prospectus, Shareholder reports or other information filed or made public by the
Fund (as from time to time amended) included an untrue statement of a material
fact or omitted to state a material fact required to be stated or necessary in
order to make the statements made not misleading. However, the Fund does not
agree to indemnify the Distributor or hold it harmless to the extent that the
statements or omission was made in reliance upon, and in conformity with,
information furnished to the Fund by or on behalf of the Distributor.
In no case (a) is the indemnity of the Fund to be deemed to protect the
Distributor against any liability to the Fund or its Shareholders to which the
Distributor or such person otherwise would be subject by reason of willful
misfeasance, bad faith or negligence in the performance of its duties or by
reason of its reckless disregard of its obligations and duties under this
Agreement, or (b) is the Fund to be liable to the Distributor under the
indemnity agreement contained in this paragraph with respect to any claim made
against the Distributor or any person indemnified unless the Distributor or
other person shall have notified the Fund in writing of the claim within a
reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the
Distributor or such other person (or after the Distributor or the person shall
have received notice of service on any designated agent). However, failure to
notify the Fund of any claim shall not relieve the Fund from any liability which
it may have to the Distributor or any person against whom such action is brought
otherwise than on account of its indemnity agreement contained in this
paragraph.
The Fund shall be entitled to participate at its own expense in the
defense or, if it elects, to assume the defense of any suit brought to enforce
any claims subject to this indemnity provision. If the Fund elects to assume the
defense of any such claim, the defense shall be conducted by counsel chosen by
the Fund and satisfactory to the indemnified defendants in the suits whose
approval shall not be unreasonably withheld. In the event that the Fund elects
to assume the defense of any suit and retain counsel, the indemnified defendants
shall bear the fees and expenses of any additional counsel retained by them. If
the Fund does not elect to assume the defense of a suit, it will reimburse the
indemnified defendants for the reasonable fees and expenses of any counsel
retained by the indemnified defendants.
The Fund agrees to notify the Distributor promptly of the commencement
of any litigation or proceedings against it or any of its officers or Directors
in connection with the issuance or sale of any of its Shares.
ARTICLE 7. Indemnification of Fund. The Distributor covenants and
agrees that it will indemnify and hold harmless the Fund and each of its
Directors and officers and each person, if any, who controls the Fund within the
meaning of Section 15 of the 1933 Act, against any loss, liability, damages,
claim or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, damages, claim or expense and reasonable counsel
fees incurred in connection therewith) based upon the 1933 Act or any other
statute or common law and arising by reason of any person acquiring any Shares,
and alleging a wrongful act of the Distributor or any of its employees or
alleging that the registration statement, prospectus, Shareholder reports or
other information filed or made public by the Fund (as from time to time
amended) included an untrue statement of a material fact or omitted to state a
material fact required to be stated or necessary in order to make the statements
not misleading, insofar as the statement or omission was made in reliance upon
and in conformity with information furnished to the Fund by or on behalf of the
Distributor.
In no case (a) is the indemnity of the Distributor in favor of the Fund
or any other person indemnified to be deemed to protect the Fund or any other
person against any liability to which the Fund or such other person would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (b) is the
Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Fund or any person
indemnified unless the Fund or person, as the case may be, shall have notified
the Distributor in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon the Fund or upon any person (or after the
Fund or such person shall have received notice of service on any designated
agent). However, failure to notify the Distributor of any claim shall not
relieve the Distributor from any liability which it may have to the Fund or any
person against whom the action is brought otherwise than on account of its
indemnity agreement contained in this paragraph.
The Distributor shall be entitled to participate, at its own expense,
in the defense or, if it so elects, to assume the defense of any suit brought to
enforce the claim, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by the Distributor and satisfactory
to the indemnified defendants whose approval shall not be unreasonably withheld.
In the event that the Distributor elects to assume the defense of any suit and
retain counsel, the defendants in the suit shall bear the fees and expenses of
any additional counsel retained by them. If the Distributor does not elect to
assume the defense of any suit, it will reimburse the indemnified defendants in
the suit for the reasonable fees and expenses of any counsel retained by them.
The Distributor agrees to notify the Fund promptly of the commencement
of any litigation or proceedings against it in connection with the issue and
sale of any of the Fund's Shares.
ARTICLE 8. Effective Date. This Agreement shall be effective upon its
execution, and unless terminated as provided, shall continue in force for one
year from the effective date and thereafter from year to year, provided that
such annual continuance is approved by (a) either the vote of a majority of the
Directors of the Fund, or the vote of a majority of the outstanding voting
securities of the Shares of each Portfolio, and (b) the vote of a majority of
those Directors of the Fund who are not parties to this Agreement or the Fund's
Distribution Plan or Service Plan or interested persons of any such party
("Qualified Directors"), cast in person at a meeting called for the purpose of
voting on the approval. This Agreement shall automatically terminate in the
event of its assignment. As used in this paragraph, the terms "votes of a
majority of the outstanding voting securities," "assignment" and "interested
person" shall have the respective meanings specified in the 1940 Act. In
addition, this Agreement may at any time be terminated without penalty by the
Distributor, by a vote of a majority of Qualified Directors or by vote of a
majority of the outstanding voting securities of the Shares class of any
Portfolio upon not less than sixty days' prior written notice to the other
party.
ARTICLE 9. Notices. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to the party giving
notice: if to the Fund, at c/o Kathryn L. Stanton, Associate General Counsel,
SEI Financial Management Corporation, 680 East Swedesford Road, Wayne, PA 19087;
and to its Secretary at the following address: Michael J. Radmer, Esq., Dorsey &
Whitney P.L.L.P., 220 South Sixth Street, Minneapolis, MN 55402-1498; and if to
the Distribution, 680 East Swedesford Road, Wayne, PA 19087.
ARTICLE 10. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Maryland and the applicable provisions
of the 1940 Act. To the extent that the applicable laws of the State of
Maryland, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control.
ARTICLE 11. Multiple Originals. This Agreement may be executed in two
or more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
IN WITNESS, the Fund and the Distributor have each duly executed this
Agreement, as of the day and year above written.
FIRST AMERICAN INVESTMENT FUNDS, INC.
By: ______________________
Attest: ___________________
SEI FINANCIAL SERVICES COMPANY
By: ______________________
Attest: ___________________
EXHIBIT 6(c)
FIRST AMERICAN INVESTMENT FUNDS, INC.
SEI FINANCIAL SERVICES COMPANY
SUR-DISTRIBUTION AND SERVICING AGREEMENT
___________, 199_
Gentlemen:
SEI Financial Services Company ("SFS"), a Pennsylvania
corporation, serves as distributor (the "Distributor") of First American
Investment Funds, Inc. (the "Fund"), which is an open-end investment company
registered under the Investment Company Act of 1940, as amended (the "Investment
Company Act"). The Fund offers its shares ("Shares") to the public in accordance
with the terms and conditions contained in the Fund's Prospectus. The term
"Prospectus" used herein refers to the prospectus on file with the Securities
and Exchange Commission which is part of the registration statement of the Funds
under the Securities Act of 1933 (the "Securities Act"). In connection with the
foregoing you may serve as a participating dealer (and, therefore, accept orders
for the purchase or redemption of Shares, respond to shareholder inquiries and
perform other related functions) on the following terms and conditions:
1. Participating Dealer. You are hereby designated a
Participating Dealer and as such are authorized (i) to accept orders for the
purchase of Retail Class Shares ("Shares") of the portfolios of the Fund and to
transmit to the Fund such orders and the payment made therefor, (ii) to accept
orders for the redemption of Shares and to transmit to the Fund such orders and
all additional material, including any certificates for Shares, as may be
required to complete the redemption, and (iii) to assist shareholders with the
foregoing and other matters relating to their investments in the Fund and to the
distribution of Shares, in each case subject to the terms and conditions set
forth in the Prospectus for each portfolio of the Fund. You are to review each
Share purchase or redemption order submitted through you or with your assistance
for completeness and accuracy. You further agree that, if requested by the
Distributor, you will undertake from time to time certain shareholder
communication activities ("shareholder services"), as requested by the
Distributor, for customers of yours ("Customers") who have purchased Shares. You
may perform these duties yourself or subcontract them to a third party of your
choice. These shareholder services may include one or more of the following
services as determined by the Distributor: (i) responding to Customer inquiries
relating to the services performed by you; (ii) responding to routine inquiries
from Customers concerning their investments in Shares; and (iii) providing such
other similar services as may be reasonably requested by the Distributor to the
extent you are permitted to do so under applicable statutes, rules and
regulations. In addition, you agree to perform one or more of the following as
may be requested from time to time by the Distributor: (i) establishing and
maintaining accounts and records relating to Customers that invest in Shares,
including taxpayer identification number certifications; (ii) processing
dividend and distribution payments from the Funds on behalf of Customers; (iii)
providing information periodically to Customers showing their positions in
Shares and forwarding sales literature and advertising provided by the
Distributor; (iv) arranging for bank wires; (v) providing subaccounting with
respect to Shares owned of record or beneficially by Customers or providing the
information to the Fund necessary for subaccounting; (vi) if required by law,
forwarding shareholder communications from the Fund (such as proxies,
shareholder reports, annual and semi-annual financial statements and dividend,
distribution and tax notices) to Customers; (vii) assisting in processing
purchase, exchange and redemption requests from Customers and in placing such
orders with the Fund's service contractors; and (viii) assisting Customers in
changing dividend options, account designations and addresses. In performing the
services described in this Agreement, you will provide such office space and
equipment, telephone facilities and personnel (which may be any part of the
space, equipment and facilities currently used your business or any personnel
employed by you) as may be reasonably necessary or beneficial to provide such
services.
2. Execution of Orders for Purchases and Redemptions of
Shares. All orders for the purchase of any Shares shall be executed at the then
current public offering price per Share (i.e., the net asset value per Share
plus the applicable sales load, if any) and all orders for the redemption of any
Shares shall be executed at the net asset value per Share, plus any applicable
redemption charge, in each case as described in the prospectus of the Funds. The
Fund and SFS reserve the right to reject any purchase request at their sole
discretion. If required by law, each transaction shall be confirmed in writing
on a fully disclosed basis. The procedures relating to all orders and the
handling of them will be subject to the terms of the prospectus of the Fund and
SFS' written instructions to you from time to time. Payments for Shares shall be
made as specified in the applicable prospectus. If payment for any purchase
order is not received in accordance with the terms of the applicable prospectus
or if an order for purchase, redemption, transfer or registration of Shares is
changed or altered, the Fund and SFS reserve the right, without notice, to
cancel the sale, redemption, transfer or registration and to hold you
responsible for any loss sustained as a result thereof.
3. Limitation of Authority. No person is authorized to make
any representations concerning the Fund, a portfolio of the Fund, or the Shares
except those contained in the Prospectus of each portfolio of the Fund and in
such printed information as the Distributor may subsequently prepare. No person
is authorized to distribute any sales material relating to a Fund without the
prior written approval of the Distributor.
4. Compensation. As compensation for the provision of the
services described herein, you will look solely to the Distributor, and you
acknowledge that the Fund shall have no direct responsibility for any
compensation due to you. In addition to any sales charge payable to you by your
customer pursuant to the schedule included in the current prospectus for the
portfolios of the Fund, the Distributor may pay you a service fee for performing
shareholder services, as established by the Distributor from time to time in its
sole discretion, and other compensation in the amounts and at the times as the
Distributor may determine from time to time in its sole discretion, with respect
to the average daily net asset value of the Shares owned of record or
beneficially by your Customers for whom you are the dealer of record or the
holder of record or with whom you have a servicing relationship as full payment
for the services and facilities provided by you under this agreement. In no
event will the fee for performing shareholder services exceed .25% (25 basis
points) of such average daily net assets. These fees will be computed daily and
paid monthly. You acknowledge any compensation to be paid to you by the
Distributor shall be paid from the Rule 12b-1 Plan adopted by the Fund and that
to the extent the Distributor waives any payments to it from the Rule 12b-1 Plan
the amounts payable to you will also be reduced. In addition, by acceptance of
this Agreement, you further acknowledge and agree that, under rules promulgated
by the Securities and Exchange Commission, a money market fund may only have
more than one class outstanding for as long as it declares dividends on a daily
basis and accrues any Rule 12b-1 payment and other class expenses daily.
Accordingly, to the extent you are entitled to receipt of payments under this
Agreement for the provision of services to a money market portfolio of the Fund,
you agree to waive your right to receive any such compensation to the extent
necessary to ensure that payments required to be accrued on any day do not
exceed income accrued for such day in order to maintain the same net asset value
per share for all classes of such money market portfolio.
5. Prospectus and Reports. You agree to comply with the
provisions contained in the Securities Act governing the distribution of
prospectuses to persons to whom you offer Shares. You further agree to deliver,
upon our request, copies of any amended Prospectus of the Fund to purchasers
whose Shares you are holding as record owner.
6. Qualification to Act. You represent that you are either (a)
a member in good standing of the National Association of Securities Dealers,
Inc. (the "NASD") or (b) a bank as defined in Section 3(a)(6) of the Securities
Exchange Act of 1934, as amended, and have been duly authorized by proper
corporate action to enter into this Agreement and to perform your obligations
hereunder, evidence of which corporate action shall be properly maintained and
made part of your corporate records. If you are a member of the NASD, your
expulsion or suspension from the NASD will automatically terminate this
Agreement on the effective date of such expulsion or suspension. If you are a
bank, or a subsidiary or an affiliate of a bank, you represent that you possess
the legal authority to perform the services contemplated by this Agreement
without violating applicable banking laws and regulations, and this Agreement
shall automatically terminate in the event that you no longer possess such
authority. You agree that you will not offer Shares to persons in any
jurisdiction in which you may not lawfully make such offer due to the fact that
you have not registered under, or are not exempt from, the applicable
registration or licensing requirements of such jurisdiction. If you are a member
of the NASD, you agree that in performing the services under this Agreement, you
at all times will comply with the Rules of Fair Practice of the NASD, including,
without limitation, the provisions of Section 26 of such Rules and any other
regulations or guidelines issued by the NASD. You agree that you will not
combine customer orders to reach breakpoints in commissions for any purpose
whatsoever unless authorized by the then current Prospectus in respect of Shares
of a particular class or by us in writing. You also agree that you will place
orders immediately upon their receipt and will not withhold any order so as to
profit therefrom. In determining the amount payable to you hereunder, we reserve
the right to exclude any sales which we reasonably determine are not made in
accordance with the terms of the Prospectus and provisions of the Agreement.
7. Blue Sky. The Fund has registered an indefinite number of
Shares under the Securities Act. The Fund intends to register or qualify in
certain states where registration or qualification is required. We will inform
you as to the states or other jurisdictions in which we believe the Shares have
been qualified for sale under, or are exempt from the requirements of, the
respective securities laws of such states. You agree that you will offer Shares
to your customers only in those states where such Shares have been registered,
qualified, or an exemption is available. We assume no responsibility or
obligation as to your right to sell Shares in any jurisdiction. We will file
with the Department of State in New York a State Notice and a Further State
Notice with respect to the Shares, if necessary.
8. Authority of Fund and Participating Dealer. The Fund shall
have full authority to take such action as it deems advisable in respect of all
matters pertaining to the offering of its Shares, including the right not to
accept any order for the purchase of Shares. You shall be deemed an independent
contractor and not an agent of the Fund, for all purposes hereunder and shall
have no authority to act for or represent the Fund. You will not act as an
"underwriter" of "distributor" of shares, as those terms are used in the 1940
Act, the Securities Act of 1933, and rules and regulations promulgated
thereunder.
9. Recordkeeping. You will (i) maintain all records required
by law to be kept by you relating to transactions in Shares and, upon request by
the Fund, promptly make such of these records available to the Fund as the Fund
may reasonably request in connection with its operations and (ii) promptly
notify the Fund if you experience any difficulty in maintaining the records
described in the foregoing clauses in an accurate and complete manner. If you
hold shares as a record owner for your customers, you will be responsible for
maintaining all necessary books and customer account records which reflect their
beneficial ownership of shares of Fund, which records shall specifically reflect
that you are holding Fund Shares as agent, custodian or nominee for your
customers.
10. Liability. The Distributor shall be under no liability to
you except for lack of good faith and for obligations expressly assumed by them
hereunder. In carrying out your obligations, you agree to act in good faith and
without negligence. For all purposes of this Agreement you will be deemed to be
an independent contract, and will have no authority to act as agent for the
Distributor or the Fund in any matter or in any respect. By your acceptance of
this Agreement, you agree to and do release, indemnify and hold the Distributor
and the Fund harmless from and against any and all liabilities, losses and costs
(including reasonable attorneys' fees and expenses) arising from any direct or
indirect actions or inactions of or by you or your officers, employees or agents
regarding your responsibilities hereunder or the purchase, redemption, transfer
or registration of Shares (or orders relating to the same) by or on behalf of
Customers. Nothing contained in this Agreement is intended to operate as a
waiver by the Distributor or you of compliance with any provision of the
Investment Company Act, the Securities Act, the Securities Exchange Act of 1934,
as amended, the Investment Advisors Act of 1940, or the rules and regulations
promulgated by the Securities and Exchange Commission thereunder.
11. Amendment. This Agreement may be amended by written
consent of both parties.
12. Termination. This Agreement may be terminated by either
party, without penalty, upon ten days' notice to the other party and shall
automatically terminate in the event of its assignment (as defined in the
Investment Company Act). This Agreement may also be terminated at any time for
the Fund without penalty by the vote of a majority of the members of the Board
of Directors of the Fund who are not "interested persons" (as defined in the
Investment Company Act) and who have no direct or indirect financial interest in
the operation of the Distribution Agreement between the Fund and the Distributor
or by the vote of a majority of the outstanding voting securities of the Fund.
13. Communications. All communications to the Distributor
should be sent to SEI Financial Services Company, 680 East Swedesford Road,
Wayne, Pennsylvania 19087, Attention: President. Any notice to you shall be duly
given if mailed or telegraphed to you at the address specified by you below.
14. Severability and Governing Law. If any provision of this
Agreement shall be held or made invalid by a decision in a judicial or
administrative proceeding, statute, rule or otherwise, the enforceability of the
remainder of this Agreement will not be impaired thereby. This Agreement shall
be governed by the laws of the Commonwealth of Pennsylvania. In addition, you
acknowledge and agree that this Agreement has been entered into pursuant to Rule
12b-1 under the Investment Company Act, and is subject to the provisions of said
Rule, as well as any other applicable rules or regulations promulgated by the
Securities and Exchange Commission.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us one copy of this agreement.
SEI FINANCIAL SERVICES
COMPANY
__________________________
(Authorized Signature)
Vice President
Confirmed and accepted:
Firm Name:
By:_________________________
(Authorized Signature)
Title:_______________________
Address:_____________________
Date:_______________________
EXHIBIT 8
CUSTODIAN AGREEMENT
FIRST AMERICAN INVESTMENT FUNDS, INC.
FIRST TRUST NATIONAL ASSOCIATION
THIS AGREEMENT, made this 20th day of September, 1993, by and between
First American Investment Funds, Inc., a Maryland corporation (hereinafter
called the "Fund"), and First Trust National Association, a national banking
association organized and existing under the laws of the United States of
America with its principal place of business at Minneapolis, Minnesota
(hereinafter called the "Custodian").
WITNESSETH:
WHEREAS, the Fund is a mutual fund that currently offers its shares in
twelve series -- Government Bond Fund, Municipal Bond Fund, Fixed Income Fund,
Intermediate Term Income Fund, Limited Term Income Fund, Mortgage Securities
Fund, Stock Fund, Special Equity Fund, Equity Index Fund, Regional Equity Fund,
Asset Allocation Fund, and Balanced Fund -- the investment portfolios,
investment objectives, and other aspects of which are different in certain
respects.
WHEREAS, the Fund desires that its securities and cash shall be
hereafter held and administered by the Custodian, pursuant to the terms of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Fund and the Custodian agree as follows:
ARTICLE 1. DEFINITIONS
The word "Securities" as used herein shall be construed to include,
without being limited to, shares, stocks, treasury stocks, including any stocks
of the Fund, options, notes, bonds, debentures, evidences of indebtedness,
certificates of interest or participation in any profit-sharing agreements,
collateral trust certificates, reorganization certificates or subscriptions,
transferable shares, investment contracts, voting trust certificates,
certificates of deposit for a security, fractional or undivided interests in
oil, gas, or other mineral rights, or any certificates of interest or
participation in, temporary or interim certificates for, receipts for,
guarantees of, or warrants or rights to subscribe to or purchase any of the
foregoing, acceptances and other obligations, and any evidence of any right or
interest in or to any property or assets, financial futures contracts and
options thereon, and any other interest or instrument commonly known as a
security or commodity.
The word "Series" shall refer individually or collectively, as the
context requires, to Government Bond Fund, Municipal Bond Fund, Fixed Income
Fund, Intermediate Term Income Fund, Limited Term Income Fund, Mortgage
Securities Fund, Stock Fund, Special Equity Fund, Equity Index Fund, Regional
Equity Fund, Asset Allocation Fund, and Balanced Fund, and any further series of
common stock of the Fund created hereafter by resolution of the Fund's board of
directors and on behalf of which series of common stock the Fund's board of
directors adopts this Agreement.
The words "Written Order from the Fund" shall mean a request or
direction or certification in writing directed to the Custodian and signed in
the name of the Fund by any two of the individuals designated in the current
certified list referred to in Article 2, provided that one of the individuals so
signing shall be an officer of the Fund designated in said current certified
list.
ARTICLE 2. NAMES TITLES AND SIGNATURES OF FUND'S OFFICERS
The Fund shall certify to the Custodian the names, titles, and
signatures of officers and other persons who are authorized to give Written
Orders to the Custodian on behalf of each individual Series of the Fund. The
Fund agrees that, whenever any change in such authorization occurs, it will file
with the Custodian a new certified list of names, titles, and signatures which
shall be signed by at least one officer previously certified to the Custodian if
any such officer still holds an office in the Fund. The Custodian is authorized
to rely and act upon the names, titles, and signatures of the individuals as
they appear in the most recent such certified list which has been delivered to
the Custodian as hereinbefore provided.
ARTICLE 3. RECEIPT AND DISBURSING OF MONEY
Section (1). The Fund shall from time to time cause cash owned by the
Fund to be delivered or paid to the Custodian for the account of any Series, but
the Custodian shall not be under any obligation or duty to determine whether all
cash of the Fund is being so deposited, to which Series account any such cash is
being deposited, or to take any action or to give any notice with respect to
cash not so deposited. The Custodian agrees to hold such cash, together with any
other sum collected or received by it for or on behalf of the Fund, for the
account of the Fund Series designated by the Fund, in the name of "First
American Investment Funds, Inc., Custodian Account, [Government Bond Fund],
[Municipal Bond Fund], [Fixed Income Fund], [Intermediate Term Income Fund],
[Limited Term Income Fund], [Mortgage Securities Fund], [Stock Fund], [Special
Equity Fund], [Equity Index Fund], [Regional Equity Fund], [Asset Allocation
Fund], and [Balanced Fund]" (or in the name of any Series created hereafter and
adopting this Agreement) in conformity with the terms of this Agreement. The
Custodian shall make payments of cash for the account of the Fund only:
(a) for bills, statements and other obligations of Fund (including but
not limited to obligations in connection with the conversion, exchange or
surrender of securities owned by Fund, interest charges, dividend disbursements,
taxes, management fees, custodian fees, legal fees, auditors' fees, transfer
agents' fees, brokerage commissions, compensation to personnel, and other
operating expenses of Fund) pursuant to Written Orders from the Fund setting
forth the name of the person to whom payment is to be made, the amount of the
payment, and the purpose of the payment;
(b) as provided in Article 4 hereof; and
(c) upon the termination of this Agreement.
Section (2). The Custodian is hereby appointed the attorney-in-fact of
the Fund to enforce and collect all checks, drafts, or other orders for the
payment of money received by the Custodian for the account of the Fund and drawn
to or to the order of the Fund and to deposit them in said Custodian Account of
the Fund.
ARTICLE 4. RECEIPT OF SECURITIES
The Fund agrees to place all of its Securities in the custody of the
Custodian for the account of any Series, but the Custodian shall not be under
any obligation or duty to determine whether all Securities of the Fund are being
so deposited, to which Series account any such Securities are being deposited,
or to require that they be so deposited, or to take any action or give any
notice with respect to the Securities not so deposited. The Custodian agrees to
hold such Securities for the account of the Series of the Fund designated by the
Fund, in the name of the Fund or of bearer or of a nominee of the Custodian, and
in conformity with the terms of this Agreement. The Custodian also agrees, upon
Written Order from the Fund, to receive from persons other than the Fund and to
hold for the account of the Series of the Fund designated by the Fund Securities
specified in said Written Order, and, if the same are in proper form, to cause
payment to be made therefor to the persons from whom such Securities were
received, from the funds of the Fund held by it in said Custodian Account in the
amounts provided and in the manner directed by the Written Order from the Fund.
The Custodian agrees that all Securities of the Fund placed in its
custody shall be kept physically segregated at all times from those of any other
person, firm, or corporation, and shall be held by the Custodian with all
reasonable precautions for the safekeeping thereof, with safeguards
substantially equivalent to those maintained by the Custodian for its own
Securities.
Subject to such rules, regulations, and orders as the Securities and
Exchange Commission may adopt, the Fund may direct the Custodian to deposit all
or any part of the Securities owned by the Fund in a system for the central
handling of Securities established by a national securities exchange or a
national securities association registered with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, or such other person as
may be permitted by the Commission, pursuant to which system all Securities of
any particular class or series of any issuer deposited within the system are
treated as fungible and may be transferred or pledged by bookkeeping entry
without physical delivery of such Securities, provided that all such deposits
shall be subject to withdrawal only at the direction of the Fund.
ARTICLE 5. TRANSFER, EXCHANGE REDELIVERY ETC. OF SECURITIES
The Custodian agrees to transfer, exchange, or deliver Securities as
provided in Article 6, or on receipt by it of, and in accordance with, a Written
Order from the Fund in which the Fund shall state specifically which of the
following cases is covered thereby, provided that it shall not be the
responsibility of the Custodian to determine the propriety or legality of any
such order:
(a) In the case of deliveries of Securities sold by the Fund, against
receipt by the Custodian of the proceeds of sale and after receipt of
a confirmation from a broker or dealer with respect to the
transaction;
(b) In the case of deliveries of Securities which may mature or be called,
redeemed, retired, or otherwise become payable, against receipt by the
Custodian of the sums payable thereon or against interim receipts or
other proper delivery receipts;
(c) In the case of deliveries of Securities which are to be transferred to
and registered in the name of the Fund or of a nominee of the
Custodian and delivered to the Custodian for the account of the Fund,
against receipt by the Custodian of interim receipts or other proper
delivery receipts;
(d) In the case of deliveries of Securities to the issuer thereof, its
transfer agent or other proper agent, or to any committee or other
organization for exchange for other Securities to be delivered to the
Custodian in connection with a reorganization or recapitalization of
the issuer or any split-up or similar transaction involving such
Securities, against receipt by the Custodian of such other Securities
or against interim receipts or other proper delivery receipts;
(e) In the case of deliveries of temporary certificates in exchange for
permanent certificates, against receipt by the Custodian of such
permanent certificates or against interim receipts or other proper
delivery receipts;
(f) In the case of deliveries of Securities upon conversion thereof into
other Securities, against receipt by the Custodian of such other
Securities or against interim receipts or other proper delivery
receipts;
(g) In the case of deliveries of Securities in exchange for other
Securities (whether or not such transactions also involve the receipt
or payment of cash), against receipt by the Custodian of such other
Securities or against interim receipts or other proper delivery
receipts;
(h) In a case not covered by the preceding paragraphs of this Article,
upon receipt of a resolution adopted by the Board of Directors of the
Fund, signed by an officer of the Fund and certified to by the
Secretary, specifying the Securities and assets to be transferred,
exchanged, or delivered, the purposes for which such delivery is being
made, declaring such purposes to be proper corporate purposes, and
naming a person or persons (each of whom shall be a properly bonded
officer or employee of the Fund) to whom such transfer, exchange, or
delivery is to be made; and
(i) In the case of deliveries pursuant to paragraphs (a), (b), (c), (d),
(e), (f), and (g) above, the Written Order from the Fund shall direct
that the proceeds of any Securities delivered, or Securities or other
assets exchanged for or in lieu of Securities so delivered, are to be
delivered to the Custodian.
ARTICLE 6. CUSTODIAN'S ACTS WITHOUT INSTRUCTIONS
Unless and until the Custodian receives contrary Written Orders from
the Fund, the Custodian shall without order from the Fund:
(a) Present for payment all bills, notes, checks, drafts, and similar
items, and all coupons or other income items (except stock dividends),
held or received for the account of the Fund, and which require
presentation in the ordinary course of business, and credit such items
to the aforesaid Custodian Account of the Fund pursuant to Custodian's
then current funds availability schedule; but Custodian shall have no
duty to take action to effect collection of any amount if the assets
upon which such payment is due are in default or if payment is refused
after due demand and presentation;
(b) Present for payment all Securities which may mature or be called,
redeemed, retired, or otherwise become payable and credit such items
to the aforesaid Custodian Account of the Fund pursuant to Custodian's
then current funds availability schedule; but Custodian shall have no
duty to take action to effect collection of any amount if the assets
upon which such payment is due are in default or if payment is refused
after due demand and presentation;
(c) Hold for and credit to the account of the Fund all shares of stock and
other Securities received as stock dividends or as the result of a
stock split or otherwise from or on account of Securities of the Fund,
and notify the Fund promptly of the receipt of such items;
(d) Deposit any cash received by it from, for or on behalf of the Fund to
the credit of the Fund in the aforesaid Custodian Account (in its own
deposit department without liability for interest);
(e) Charge against the aforesaid Custodian Account for the Fund
disbursements authorized to be made by the Custodian hereunder and
actually made by it, and notify the Fund of such charges at least once
a month;
(f) Deliver Securities which are to be transferred to and reissued in the
name of the Fund, or of a nominee of the Custodian for the account of
the Fund, and temporary certificates which are to be exchanged for
permanent certificates, to a proper transfer agent for such purpose
against interim receipts or other proper delivery receipts; and
(g) Hold for disposition in accordance with Written Orders from the Fund
hereunder all options, rights, and similar Securities which may be
received by the Custodian and which are issued with respect to any
securities held by it hereunder, and notify the Fund promptly of the
receipt of such items.
ARTICLE 7. DELIVERY OF PROXIES
The Custodian shall deliver promptly to the Fund all proxies, written
notices, and communications with relation to Securities held by it which it may
receive from securities issuers or obligers and/or via the industry standard
information services to which Custodian subscribes.
ARTICLE 8. TRANSFER
The Fund shall furnish to the Custodian appropriate instruments to
enable the Custodian to hold or deliver in proper form for transfer any
Securities which it may hold for the Series accounts of the Fund. For the
purpose of facilitating the handling of Securities, unless the Fund shall
otherwise direct by Written Order, the Custodian is authorized to hold
Securities deposited with it under this Agreement in the name of its registered
nominee or nominees (as defined in the Internal Revenue Code and any Regulations
of the United States Treasury Department issued thereunder or in any provision
of any subsequent federal tax law exempting such transaction from liability for
stock transfer taxes) and shall execute and deliver all such certificates in
connection therewith as may be required by such laws or regulations or under the
laws of any state. The Custodian shall advise the Fund of the certificate number
of each certificate so presented for transfer and that of the certificate
received in exchange therefor, and shall use its best efforts to the end that
the specific Securities held by it hereunder shall be at all times identifiable.
ARTICLE 9. TRANSFER TAXES AND OTHER DISBURSEMENTS
The Fund shall pay or reimburse the Custodian for any transfer taxes
payable upon transfers of Securities made hereunder, including transfers
incident to the termination of this Agreement, and for all other necessary and
proper disbursements, advances and expenses made or incurred by the Custodian in
the performance or incident to the termination of this Agreement, and the
Custodian shall have a lien upon any cash or Securities held by it for the
account of the Fund for all such items, enforceable, after thirty days' Written
Notice by registered mail to the Fund, by the sale of sufficient Securities to
satisfy such lien. In the event that any advance of funds is made by Custodian
on behalf of the Fund, the Fund agrees to repay the Custodian on demand the
amount of the advance plus accrued interest at the then effective Federal funds
rate The Custodian may reimburse itself by deducting from the proceeds of any
sale of Securities an amount sufficient to pay any transfer taxes payable upon
the transfer of Securities sold. The Custodian shall execute such certificates
in connection with Securities delivered to it under this Agreement as may be
required, under the provisions of any federal revenue act and any Regulations of
the Treasury Department issued thereunder or any state laws, to exempt from
taxation any transfers and/or deliveries of any such Securities as may qualify
for such exemption.
ARTICLE 10. CUSTODIAN'S LIABILITY FOR
PROCEEDS OF SECURITIES SOLD
If the mode of payment for Securities to be delivered by the Custodian
is not specified in the Written Order from the Fund directing such delivery, the
Custodian shall make delivery of such Securities against receipt by it of cash,
a postal money order or a check drawn by a bank, trust company, or other banking
institution, or by a broker named in such Written Order from the Fund, for the
amount the Custodian is directed to receive. The Custodian shall be liable for
the proceeds of any delivery of Securities made pursuant to this Article, but
provided that it has complied with the provisions of this Article, only to the
extent that such proceeds are actually received.
ARTICLE 11. CUSTODIAN'S REPORT
The Custodian shall furnish the Fund, as of the close of business on
the last business day of each month, a statement showing all cash transactions
and entries for the accounts of the Series of the Fund. The books and records of
the Custodian pertaining to its actions as Custodian under this Agreement shall
be open to inspection and audit, at reasonable times, by officers of, and
auditors employed by, the Fund. The Custodian shall furnish the Fund with a list
of the Securities held by it in custody for the account of the Fund as of the
close of business on the last business day of each quarter of the Fund's fiscal
year.
ARTICLE 12. CUSTODIAN'S COMPENSATION
The Custodian shall be paid compensation at such rates and at such
times as may from time to time be agreed on in writing by the parties hereto,
and the Custodian shall have a lien for unpaid compensation, to the date of
termination of this Agreement, upon any cash or Securities held by it for the
Series accounts of the Fund, enforceable in the manner specified in Article 9
hereof.
ARTICLE 13. DURATION, TERMINATION AND AMENDMENT OF
AGREEMENT
This Agreement shall remain in effect, as it may from time to time be
amended, until it shall have been terminated as hereinafter provided, but no
such alteration or termination shall affect or impair any rights or liabilities
arising out of any acts or omissions to act occurring prior to such amendment or
termination.
The Custodian may terminate this Agreement by giving the Fund ninety
days' written notice of such termination by registered mail addressed to the
Fund at its principal place of business.
The Fund may terminate this Agreement by giving ninety days' written
notice thereof delivered, together with a copy of the resolution of the Board of
Directors authorizing such termination and certified by the Secretary of the
Fund, by registered mail to the Custodian at its principal place of business.
Additionally, this Agreement may be terminated with respect to any Series of the
Fund pursuant to the same procedures, in which case this Agreement shall
continue in full effect with respect to all other Series of the Fund.
Upon termination of this Agreement, the assets of the Fund, or Series
thereof, held by the Custodian shall be delivered by the Custodian to a
successor custodian upon receipt by the Custodian of a copy of the resolution of
the Board of Directors of the Fund, certified by the Secretary, designating the
successor custodian; and if no successor custodian is designated the Custodian
shall, upon such termination, deliver all such assets to the Fund.
This Agreement may be amended at any time by the mutual agreement of
the Fund and the Custodian. Additionally, this Agreement may be amended with
respect to any Series of the Fund at any time by the mutual agreement of the
Fund and the Custodian, in which case such amendment would apply to such Series
amending this Agreement but not to the other Series of the Fund.
This Agreement may not be assigned by the Custodian without the consent
of the Fund, authorized or approved by a resolution of its Board of Directors.
ARTICLE 14. SUCCESSOR CUSTODIAN
Any bank or trust company into which the Custodian or any successor
custodian may be merged or converted or with which it or any successor custodian
may be consolidated, or any bank or trust company resulting from any merger,
conversion or consolidation to which the Custodian or any successor custodian
shall be a party, or any bank or trust company succeeding to the business of the
Custodian, shall be and become the successor custodian without the execution of
any instrument or any further act on the part of the Fund or the Custodian or
any successor custodian.
Any successor custodian shall have all the power, duties, and
obligations of the preceding custodian under this Agreement and any amendments
thereof and shall succeed to all the exemptions and privileges of the preceding
custodian under this Agreement and any amendments thereof.
ARTICLE 15. GENERAL
Nothing expressed or mentioned in or to be implied from any provisions
of this Agreement is intended to give or shall be construed to give any person
or corporation other than the parties hereto any legal or equitable right remedy
or claim under or in respect of this Agreement or any covenant, condition or
provision herein contained, this Agreement and all of the covenants, conditions
and provisions hereof being intended to be, and being, for the sole and
exclusive benefit of the parties hereto and their respective successors and
assigns.
It is the purpose and intention of the parties hereto that the Fund
shall retain all the power, rights and responsibilities of determining policy,
exercising discretion and making decisions with respect to the purchase, or
other acquisitions, and the sale, or other disposition, of all of its
Securities, and that the duties and responsibilities of the Custodian hereunder
shall be limited to receiving and safeguarding the assets and Securities of the
Fund and to delivering or disposing of them pursuant to the Written Order of the
Fund as aforesaid, and the Custodian shall have no authority, duty or
responsibility for the investment policy of the Fund or for any acts of the Fund
in buying or otherwise acquiring, or in selling or otherwise disposing of, any
Securities, except as hereinbefore specifically set forth.
The Custodian shall in no case or event permit the withdrawal of any
money or Securities of the Fund upon the mere receipt of any director, officer,
employee or agent of the Fund, but shall hold such money and Securities for
disposition under the procedures herein set forth.
ARTICLE 16. INSTRUCTIONS TO CUSTODIAN
The Custodian may, when it deems it expedient, apply to the Fund, or to
counsel for the Fund, or to its own counsel, for instructions and advice; and
the Custodian shall not be liable for any action taken by it in accordance with
the written instructions or advice of the Fund or of counsel for the Fund.
ARTICLE 17. EFFECTIVE DATE
This agreement shall become effective when it is executed and delivered
by the parties hereto, which date shall not precede the date it shall have been
approved by the Board of Directors of the Fund. The Fund shall transmit to the
Custodian promptly after such approval by said Board of Directors a copy of its
resolution embodying such approval, certified by the Secretary of the Fund.
ARTICLE 18. GOVERNING LAW
This agreement is executed and delivered in Minneapolis, Minnesota and
the laws of the State of Minnesota shall be controlling and shall govern the
construction, validity and effect of this contract.
IN WITNESS WHEREOF, the Fund and the Custodian have caused this
Agreement to be executed in duplicate as of the date first above written by
their duly authorized officers.
ATTEST: FIRST AMERICAN INVESTMENT
FUNDS, INC.
_____________________ By
Secretary Its
ATTEST: FIRST TRUST NATIONAL
ASSOCIATION
_____________________ By
Trust Officer Its
SUPPLEMENT TO CUSTODIAN AGREEMENT
FIRST AMERICAN INVESTMENT FUNDS, INC.
FIRST TRUST NATIONAL ASSOCIATION
WHEREAS, First American Investment Funds, Inc., a mutual fund organized
as a Maryland corporation (hereinafter called the "Fund"), and First Trust
National Association, a national banking association organized and existing
under the laws of the United States of America with its principal place of
business at Minneapolis, Minnesota (hereinafter called the "Custodian"),
previously entered into that Custodian Agreement dated September 20, 1993 (the
"Custodian Agreement"); and
WHEREAS, the Fund has organized a new series referred to as
International Fund, and desires to make provision for assets of International
Fund to be custodied outside the United States pursuant to sub-custodian
arrangements between the Custodian and selected sub-custodians; and
WHEREAS, the Fund and the Custodian are entering into this Supplement
to the Custodian Agreement in order to permit and provide for such sub-custodian
arrangements with respect to International Fund.
NOW, THEREFORE, the Fund and the Custodian hereby agree to supplement
the Custodian Agreement as follows:
1. Terms Defined in Custodian Agreement. Capitalized terms which are
used herein and are not otherwise defined herein shall have the meanings
assigned to them in the Custodian Agreement.
2. Appointment of Foreign Sub-Custodians. The Custodian is authorized
and instructed, through Bankers Trust Company, to employ as sub-custodians for
International Fund's securities and other assets maintained outside of the
United States the foreign banking institutions, foreign securities depositories
and foreign clearing agencies designated on Schedule A hereto ("Foreign
Sub-Custodians"). Upon receipt of Written Order from the Fund, together with a
certified resolution of the Fund's Board of Directors, the Custodian and the
Fund may agree to amend Schedule A from time to time to designate additional
foreign banking institutions, foreign securities depositories and foreign
clearing agencies to act as sub-custodians. Each foreign banking institution
shall be authorized to deposit securities in foreign securities depositories and
foreign clearing agencies authorized pursuant to Rule 17f-5 under the Investment
Company Act of 1940, as amended (the "1940 Act"). Upon receipt of Written Order
from the Fund, the Custodian shall cease the employment of any one or more of
such sub-custodians for maintaining custody of International Fund's assets.
3. Assets to be Held. The Custodian shall limit the securities and
other assets maintained in the custody of the Foreign Sub-Custodians to (a)
"foreign securities" as defined in paragraph (c)(1) of Rule 17f-5 under the 1940
Act, and (b) cash and cash equivalents in such amount as the Custodian or the
Fund may determine to be reasonably necessary in order to effect International
Fund's foreign securities transactions.
4. Segregation of Securities. The Custodian shall identify on its books
as belonging to International Fund the foreign securities of International Fund
held by each Foreign Sub-Custodian. Each agreement pursuant to which the
Custodian employs a foreign banking institution as a Foreign Sub-Custodian shall
require that such institution establish a custody account for the Custodian on
behalf of its customers and physically segregate in that account securities and
other assets of the Custodian's customers. Each such agreement also shall
provide that, if a Foreign Sub-Custodian deposits International Fund's
securities in a foreign securities depository, the Foreign Sub-Custodian shall
identify on its books as belonging to the Custodian, as agent for the
Custodian's customers, the securities so deposited (all collectively referred to
as the "Account").
5. Agreements with Foreign Banking Institutions. Each agreement with a
Foreign Sub-Custodian shall provide that (a) International Fund's assets will
not be subject to any right, charge, security interest, lien or claim of any
kind in favor of the foreign banking institution or its creditors, except a
claim of payment for the safe custody or administration of such assets; (b)
beneficial ownership of International Fund's assets will be freely transferable
without the payment of money or value other than for custody or administration,
which may include payment of stamp duties or government taxes; (c) adequate
records will be maintained identifying the assets as belonging to the customers
of the Custodian; (d) officers of or auditors employed by, or other
representatives of, the Custodian, including independent public accountants for
the Fund, will be given access to the books and records of the Foreign
Sub-Custodian relating to its actions under its agreement with the Custodian or
will be given confirmation of the contents of such books and records; and (e)
assets of International Fund held by the Foreign Sub-Custodian will be subject
only to the instructions of the Custodian or its agents.
6. Access of Independent Public Accountants of the Fund. Upon request
of the Fund, the Custodian will use its best efforts to arrange for the
independent public accountants for the Fund to be afforded access to the books
and records of any foreign banking institution employed as a Foreign
Sub-Custodian insofar as such books and records relate to the performance of
such foreign banking institutions under their agreements with the Custodian.
7. Reports by the Custodian. The Custodian will supply to the Fund from
time to time, as mutually agreed upon, statements in respect of the securities
and other assets of International Fund held by Foreign Sub-Custodians, including
but not limited to an identification of entities having possession of
International Fund's securities and other assets and advices or notifications of
any transfers of securities to or from each custodian account maintained by a
Foreign Sub-Custodian on behalf of International Fund indicating, as to
securities acquired for International Fund, the identity of the entity having
physical possession of such securities.
8. Foreign Securities Transactions.
(a) Upon receipt of Written Order from the Fund, which may be
continuing instructions when deemed appropriate by the parties, the Custodian
shall make or cause the applicable Foreign Sub-Custodian to make transfers,
exchanges and deliveries of foreign securities of International Fund, but only
(i) in the cases specified in Article 5 of the Custodian Agreement or (ii) as
specifically provided for herein.
(b) Upon receipt of Written Order from the Fund, which may be
continuing instructions when deemed appropriate by the parties, the Custodian
shall pay out or cause the applicable Foreign Sub-Custodian to pay out monies of
International Fund, but only (i) in the cases specified in Article 3 of the
Custodian Agreement or (ii) as specifically provided for herein.
(c) Settlement and payment for securities received for the account of
International Fund and delivery of securities maintained for the account of
International Fund may, upon receipt of Written Order from the Fund, be effected
in accordance with the customary or established securities trading or securities
processing practices and procedures in the jurisdiction or market in which the
transaction occurs, including, without limitation, delivering securities to the
purchaser thereof or to a dealer therefor (or an agent for such purchaser or
dealer) against a receipt with the expectation of receiving later payment for
such securities from such purchaser or dealer.
(d) With respect to any transaction involving foreign securities, the
Custodian or any Foreign Sub-Custodian in its discretion may cause International
Fund to be credited on either the contractual settlement date or the actual
settlement date with the proceeds of any sale or exchange of foreign securities
from the account of International Fund and to be debited on either the
contractual settlement date or the actual settlement date for the cost of
foreign securities purchased or acquired for International Fund according to the
Custodian's then current internal policies and procedures pertaining to
securities settlement, which policies and procedures may change from time to
time. The Custodian shall advise the Fund of any changes to such policies and
procedures. The Custodian may reverse any such credit or debit made on the
contractual settlement date if the transaction with respect to which such credit
or debit was made fails to settle within a reasonable period, determined by the
Custodian in its discretion, after the contractual settlement date except that
if any foreign securities delivered pursuant to this section are returned by the
recipient thereof, the Custodian may cause any such credits or debits to be
reversed at any time.
(e) Securities maintained in the custody of a Foreign Sub-Custodian may
be maintained in the name of such entity's nominee to the same extent set forth
in Article 4 of the Custodian Agreement.
(f) Until the Custodian receives written instructions to the contrary,
the Custodian shall collect, or shall cause the applicable Foreign Sub-Custodian
to collect, all interest and dividends paid on securities held in International
Fund's account, unless such payment is in default. Unless otherwise instructed,
the Custodian shall convert interest, dividends and principal received with
respect to securities in International Fund's account into United States dollars
and shall perform foreign currency contracts for the conversion of United States
dollars into foreign currencies for the settlement of trades whenever it is
practicable to do so through customary banking channels. Customary banking
channels may vary based upon industry practice in each jurisdiction, and shall
include the banking facilities of the Custodian's affiliates in accordance with
such affiliates' then prevailing internal policies on funds repatriation. All
risk and expense incident to such foreign collection and conversions is the
responsibility of International Fund's account and the Custodian shall have no
responsibility for fluctuations in exchange rates affecting collections or
conversions.
9. Foreign Securities Lending. Notwithstanding any other provisions
contained herein or in the Custodian Agreement, the Custodian or any Foreign
Sub-Custodian shall deliver and receive securities loaned or returned in
connection with securities lending transactions only upon and in accordance with
Written Order from the Fund; provided, that if the Custodian is not the lending
agent in connection with such securities lending, then neither the Custodian nor
any Foreign Sub-Custodian shall undertake or otherwise be responsible for (a)
marking to market values for such loaned securities, (b) collection of
dividends, interest or other disbursements or distributions made with respect to
such loaned securities, (c) receipt of corporate action notices, communications,
proxies or instruments with respect to such loaned securities, or (d) custody,
safekeeping, valuation or any other actions or services with respect to any
collateral securing any such securities lending transactions. In the event that
the Custodian is the Fund's lending agent in connection with a specific
securities loan from International Fund, the Custodian shall undertake to
perform all of the duties set forth in the preceding sentence with respect to
such loan, except that the Fund shall not receive, nor be entitled to vote,
proxies in connection with such loaned security.
10. Liability of Foreign Sub-Custodians. Each agreement pursuant to
which the Custodian employs a foreign banking institution as a Foreign
Sub-Custodian shall require the institution to exercise reasonable care in the
performance of its duties and to indemnify and hold harmless the Custodian and
the Custodian's customers from and against any loss, damage, cost, expense,
liability or claim arising out of such institution's negligence, fraud, bad
faith, willful misconduct or reckless disregard of its duties. At the election
of the Fund, it shall be entitled to be subrogated to the right of the Custodian
with respect to any claims against a foreign banking institution as a
consequence of any such loss, damage, cost, expense, liability or claim if and
to the extent that International Fund has not been made whole for any such loss,
damage, cost, expense, liability or claim.
11. Monitoring Responsibilities. The Custodian shall furnish annually
to the Fund information concerning the Foreign Sub-Custodians employed by the
Custodian. Such information shall be similar in kind and scope to that furnished
to the Fund in connection with the initial approval hereof. In addition, the
Custodian will promptly inform the Fund in the event that the Custodian learns
of a material adverse change in the financial condition of a Foreign
Sub-Custodian or is notified by a foreign banking institution employed as a
Foreign Sub-Custodian that its shareholders' equity has declined, or that there
is a substantial likelihood that it will decline, to less than $200 million in
United States dollars or the foreign equivalent thereof.
12. Branches of United States Banks. Except as otherwise set forth
herein, the provisions hereof shall not apply where the custody of International
Fund's assets maintained in a foreign branch of a banking institution which is a
"bank" as defined in Section 2(a)(5) of the 1940 Act which meets the
qualification set forth in Section 26(a) of the 1940 Act.
13. Expropriation Insurance. The Custodian represents that it does not
intend to obtain any insurance for the benefit of International Fund which
protects against the imposition of exchange control restrictions or the transfer
from any foreign jurisdiction of the proceeds of sale of any securities or
against confiscation, expropriation or nationalization of any securities or the
assets of the issuer of such securities by a government of any foreign country
in which the issuer of such securities is organized or in which securities are
held for safekeeping either by the Custodian or any Foreign Sub-Custodian in
such country. The Custodian represents that its understanding of the position of
the Staff of the Securities and Exchange Commission is that any investment
company investing in securities of foreign issuers has the responsibility for
reviewing the possibility of the imposition of exchange control restrictions
which would affect the liquidity of such investment company's assets and the
possibility of exposure to political risk, including the appropriateness of
insuring against such risk.
14. Custodian Agreement. The Custodian Agreement, as supplemented
hereby, is hereby ratified and confirmed in all respects.
IN WITNESS WHEREOF, the Fund and the Custodian have caused this
Supplement to be executed by their duly authorized officers.
March 15, 1994. FIRST AMERICAN INVESTMENT FUNDS, INC.
By
Its
FIRST TRUST NATIONAL ASSOCIATION
By
Its
SCHEDULE A TO SUPPLEMENT
TO CUSTODIAN AGREEMENT
<TABLE>
<CAPTION>
COUNTRY SUB-CUSTODIAN DEPOSITORY (IF ANY)
<S> <C> <C>
Argentina Citibank, N.A., Buenos Aires Caja de Valores
Branch
Australia Australia and New Zealand Reserve Bank Information and
Banking Group Transfer System
Austria Creditanstalt-Bankverein Oesterreichische Kontrollbank
Bangladesh Standard Chartered Bank,
Dhaka Branch
Belgium Generale Bank Caisse Interprofessionnelle de
Depots et de Virements de Titres S.A.
Brazil Citibank, N.A., Sao Paulo Branch Camera de Liquidacao e Custodia S/A
Canada The Toronto-Dominion Bank Canadian Depository for Securities
Limited
Chile Citibank, N.A., Santiago Branch
Peoples Republic Standard Chartered Bank, Shenzhen Securities Registrars Co., Ltd.
of China (Shenzhen) Shenzhen Branch
Colombia Cititrust Colombia, S.A. Sociedad
Fiduciaria
Denmark Den Danske Bank Vaerdipapircentralen
Finland Kansallis-Osake-Pankii The Central Share Register of Finland
France Bank Paribas Societe Interprofessionelle de
Compensation de Valeurs Mobilieres
Germany Dresdner Bank, AG Deutscher Kassenverein
Greece National Bank of Greece S.A. Apothetirio Titlon
Hong Kong Standard Chartered Bank, Hong Central Clearing and Settlement System
Kong Branch
India The Hongkong and Shanghai
Banking Corporation Limited,
Bombay Branch
Indonesia Standard Chartered Bank, Jakarta
Branch
Italy Citibank, N.A., Milan Branch Monte Titoli, S.p.A.
Japan The Bank of Tokyo, Ltd. Japan Securities Depository Center
Korea Standard Chartered Bank, Seoul Korea Securities Settlement Corporation
Branch
Luxembourg Cedel
Malaysia Chung Khiaw Bank, Ltd., Malaysian Depository Sdn Bhd
Kuala Lumpur Branch
Mexico (equity) Instituto para el Deposito de
Valores (S.D. Indeval)
Mexico (fixed Citibank, N.A., Mexico City
income) Branch
Netherlands ABN-AMRO Bank Nederlands Centraal Institut voor Giraal
Effectenverkeer B.V.
New Zealand Australia and New Zealand Austraclear NZ
Banking Group Ltd.
Norway Euroclear
Pakistan Standard Chartered Bank,
Karachi Branch
Peru Citibank, N.A., Lima Branch Caja de Valores
Philippines Standard Chartered Bank, Manila
Branch
Poland Citibank (Poland), S.A. National Depository of Securities; The
National Bank of Poland
Portugal Banco Espirito Santo e Comercial Central de Valores Mobiliarios
de Lisboa, SA
Singapore United Overseas Bank, Ltd. The Central Depository (PTE) Ltd.
South Africa First National Bank of Southern
Africa, Ltd.
Spain Banco Santander Servicio de Compensacion y Liquidacion
de Valores
Sri Lanka Standard Chartered Bank, Central Depository System
Colombo Branch
Sweden Svenska Handelsbanken Vardepappercentralen
Switzerland Bankers Trust AG Schweizerische Effekten Giro AG
Thailand Standard Chartered Bank, The Share Depository Center
Bangkok Branch
Turkey Osmanli Bankasi A.S. (Ottoman
Bank)
United Kingdom/ Bankers Trust Company, London Gilt Settlement Office (Ireland); Central
Ireland Branch Gilts Office (United Kingdon)
Venezuela Citibank, N.A., Caracas Branch
</TABLE>
TRANSNATIONAL DEPOSITORIES
Cedel
Euroclear
Final
FIRST AMERICAN INVESTMENT FUNDS, INC.
COMPENSATION AGREEMENT DATED AS OF DECEMBER 31, 1993
PURSUANT TO CUSTODIAN AGREEMENT
WHEREAS, First American Investment Funds, Inc., a Maryland corporation
(hereinafter called the "Fund"), and First Trust National Association, a
national banking association organized and existing under the laws of the United
States of America with its principal place of business at Minneapolis, Minnesota
(hereinafter called the "Custodian"), previously entered into that Custodian
Agreement dated September 20, 1993 (the "Custodian Agreement"); and
WHEREAS, Article 12 of the Custodian Agreement provides that the
Custodian shall be paid compensation at such rates and at such times as may from
time to time be agreed on in writing by the parties thereto; and
WHEREAS, the Fund and the Custodian wish to make provision for the
compensation to be paid by the Fund to the Custodian with respect to certain new
series of the Fund.
NOW, THEREFORE, the Fund and the Custodian agree as follows:
The compensation payable to the Custodian pursuant to the Custodian
Agreement with respect to the series specified below shall be payable monthly at
the respective annual rates as percentages of the respective series' average
daily net assets set forth below:
Annual Custodian Fee
as a Percentage of
Series Average Daily Net Assets
Minnesota Insured .03%
Intermediate Tax
Free Fund
Colorado Intermediate .03%
Tax Free Fund
Emerging Growth .03%
Fund
Technology Fund .03%
International Fund .25%
The Custodian shall pay subcustodian fees with respect to International Fund out
of the compensation payable to the Custodian with respect to such fund as set
forth above. The Fund shall reimburse the Custodian for all other out-of-pocket
expenses incurred by the Custodian in connection with the performance of the
Custodian's services under the Custodian Agreement.
IN WITNESS WHEREOF, the Fund and the Custodian have caused this
instrument to be executed in duplicate as of the date first above written by
their duly authorized officers.
FIRST AMERICAN INVESTMENT FUNDS, INC.
By
Its
Attest:
Michael J. Radmer, Secretary
FIRST TRUST NATIONAL ASSOCIATION
By
Its
Attest:
Its
EXHIBIT 9(b)
TRANSFER AGENCY AGREEMENT
This Agreement made as of the 31st of March, 1994, by and between First American
Investment Funds, Inc. ("Fund") a Maryland corporation, having its principal
office and place of business at 680 East Swedesford Road, Wayne, PA 19087 and
Supervised Service Company, Inc. ("SSC") a Delaware corporation having its
principal office and place of business at 120 South LaSalle, Chicago IL 60603
(hereinafter referred to as the "Transfer Agent").
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the
following meanings:
1. "APPROVED INSTITUTION" shall mean an entity so named in a
Certificate. From time to time the Fund may amend a previously delivered
Certificate by delivering to the Transfer Agent a Certificate naming an
additional entity or deleting any entity named in a previously delivered
Certificate.
2. THE "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Fund.
3. "CERTIFICATE" shall mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement to be given to
the Transfer Agent by the Fund which is signed by any Officer, as hereinafter
defined, and actually received by the Transfer Agent.
4. "CUSTODIAN" shall mean the financial institution appointed as
custodian under the terms and conditions of the Custody Agreement between the
financial institution and the Fund, or its successor(s).
5. "FUND BUSINESS DAY" shall be deemed to be each day on which the New
York Stock Exchange, Inc. is open for trading.
6. "OFFICER" shall be deemed to be the Fund's President, any Vice
President of the Fund, the Fund's Secretary, the Fund's Treasurer, the Fund's
Controller, any Assistant Controller of the Fund, any Assistant Treasurer of the
Fund and any Assistant Secretary of the Fund, and any other person duly
authorized by the Board of Directors of the Fund to execute any Certificate,
instruction, notice or other instrument on behalf of the Fund and named in the
Certificate annexed hereto as Appendix A, as such Certificate may be amended
from time to time, and any person reasonably believed by the Transfer Agent to
be such a person.
7. "OUT-OF-POCKET EXPENSES" means amounts reasonably necessary and
actually incurred by Transfer Agent in the provision of Transfer Agent services
or pursuant to this Agreement for the following purposes: postage (and first
class mail insurance in connection with mailing share certificates), envelopes,
check forms, continuous forms, forms for reports and statements, stationery, and
other similar items, telephone and telegraph charges incurred in answering
inquiries from dealers or shareholders, microfilm used to record transactions in
shareholder accounts and computer tapes used for permanent storage of records
and cost of insertion of materials in mailing envelopes by outside firms.
Transfer Agent may, at its option, arrange to have various service providers
submit invoices directly to the Fund for payment of out-of-pocket expenses
reimbursable hereunder; and such other expenses paid or incurred by Transfer
Agent at the request of the Fund. Any charges associated with special or
exception processing shall also be considered Out-of-Pocket Expenses.
8. "PROSPECTUS" shall mean the most recent Fund prospectus actually
received by the Transfer Agent from the Fund with respect to which the Fund has
indicated a registration statement under the Federal Securities Act of 1933 has
becomes effective, including the Statement of Additional Information,
incorporated by reference therein.
9. "SHARES" shall mean all or any part of each class or series of the
shares of beneficial interest of the Fund or Portfolio listed in the Certificate
as to which the Transfer Agent acts as transfer agent hereunder, as may be
amended from time to time, which are authorized and/or issued by the Fund.
10. "TRANSFER AGENT" shall mean Supervised Service Company, Inc.,
("SSC"), as transfer agent and dividend disbursing agent under the terms and
conditions of this Agreement, its successor(s) or assign(s).
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. The Fund hereby constitutes and appoints the Transfer Agent as
transfer agent of all the Shares of the Fund and as dividend disbursing agent
during the period of this Agreement.
2. The Transfer Agent hereby accepts appointment as transfer agent and
dividend disbursing agent and agrees to perform duties thereof as hereinafter
set forth.
3. In connection with such appointment, the Fund upon the request of
the Transfer Agent, shall deliver the following documents to the Transfer Agent:
(i) A copy of the Articles of Incorporation of the Fund and all
amendments thereto certified by the Secretary of the Fund;
(ii) A copy of the By-Laws of the Fund certified by the Secretary of
the Fund;
(iii) A copy of a resolution of the Board of Directors of the Fund
certified by the Secretary of the Fund appointing the Transfer Agent and
authorizing the execution of this Transfer Agency Agreement;
(iv) A Certificate signed by the Secretary of the Fund specifying:
the number of authorized Shares, the number of such authorized Shares issued,
the number of such authorized Shares issued and currently outstanding; the names
and specimen signatures of the Officers of the Fund; and the name and address of
the legal counsel for the Fund;
(v) Specimen Share certificate for each or series class of Shares in
the form approved by the Board of Directors of the Fund (and in a format
compatible with the Transfer Agent's system), together with a Certificate signed
by the Secretary of the Fund as to such approval;
(vi) Copies of the Fund's Registration Statement, as amended to date,
and the most recently filed Post-Effective Amendment thereto, filed by the Fund
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, and under the Investment Company Act of 1940, as amended, together with
any applications filed in connection therewith; and
(vii) Opinion of counsel for the Fund with respect to the validity of
the authorized and outstanding Shares, whether such Shares are fully paid and
non-assessable and the status of such Shares under the Securities Act of 1933,
as amended, and any other applicable federal law or regulation (i.e., if subject
to registration, that they have been registered and that the Registration
Statement has become effective or, if exempt, the specific grounds therefor.)
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. The Fund shall deliver to the Transfer Agent the following documents
on or before the effective date of any increase or decrease in the total number
of Shares authorized to be issued:
(a) A certified copy of the amendment to the Articles of
Incorporation giving effect to such increase or decrease;
(b) In the case of an increase, an opinion of counsel for the Fund
with respect to the validity of the Shares of the Fund and the status of such
Shares under the Securities Act of 1933, as amended, and any other applicable
federal law or regulation (i.e., if subject to registration, that they have been
registered and that the Registration Statement has become effective or, if
exempt, the specific grounds therefor); and
(c) In the case of an increase, if the appointment of the Transfer
Agent was theretofore expressly limited, a certified copy of a resolution of the
Board of Directors of the Fund increasing the authority of the Transfer Agent.
2. Prior to the issuance of any additional Shares of the Fund
pursuant to stock dividends or stock splits, etc., and prior to any reduction in
the number of shares outstanding, the Fund shall deliver the following documents
to the Transfer Agent:
(a) A certified copy of the resolution(s) adopted by the Board of
Directors and/or the shareholders of the Fund authorizing such issuance of
additional Shares of the Fund or such reduction, as the case may be, and
(b) An opinion of counsel for the Fund with respect to the validity
of the Shares of the Fund and the status of such Shares under the Securities Act
of 1933, as amended, and any other applicable federal law or regulation (i.e.,
if subject to registration, that they have been registered and that the
Registration Statement has become effective, or, if exempt, the specific grounds
therefor).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or other
capital adjustment requiring a change in the form of Share certificates, the
Transfer Agent will issue Share certificates in the new form in exchange for, or
upon transfer of, outstanding Share certificates in the old form, upon
receiving:
(a) A Certificate authorizing the issuance of the Share certificates
in the new form;
(b) A certified copy of any amendment to the Articles of
Incorporation with respect to the change;
(c) Specimen Share certificates for each class of Shares in the new
form approved by the Board of Directors of the Fund, with a Certificate signed
by the Secretary of the Fund as to such approval; and
(d) An opinion of counsel for the Fund with respect to the validity
of the Shares in the new form and the status of such Shares under the Securities
Act of 1933, as amended, and any other applicable federal law or regulation
(i.e., if subject to registration, that the Shares have been registered and that
the Registration Statement has become effective or, if exempt, the specific
grounds therefor.)
2. The Fund at its expense shall furnish the Transfer Agent with a
sufficient supply of blank Share certificates in the new form and from time to
time will replenish such supply upon the request of the Transfer Agent. Such
blank Share certificates shall be compatible with the Transfer Agent's system
and shall be properly signed by facsimile or otherwise by Officers of the Fund
authorized by law or by the By-Laws to sign Share certificates and, if required
shall bear the corporate Seal or facsimile thereof. The Fund agrees to indemnify
and exonerate, save and hold the Transfer Agent harmless, from and against any
and all claims or demands that may be asserted against the Transfer Agent with
respect to the genuineness of any Share certificate supplied to the Transfer
Agent pursuant to this section.
ARTICLE V
ISSUANCE,
REDEMPTION AND TRANSFER OF SHARES
1. (a) The Transfer Agent acknowledges that it has received a copy of
the Fund's Prospectus, which Prospectus describes how sales and redemption of
shares of the Fund shall be made, and the Transfer Agent agrees to accept
purchase orders and redemption requests with respect to Fund shares on each Fund
Business Day in accordance with such Prospectus. The Fund agrees to provide the
Transfer Agent with sufficient advance notice to enable the Transfer Agent to
effect any changes in the procedures set forth in the Prospectus regarding such
purchase and redemption procedure; provided, however, that in no event will such
advance notice be less than 30 days.
(b) The Transfer Agent shall also accept with respect to each Fund
Business Day, at such times as are agreed upon from time to time by the Transfer
Agent and the Fund, a computer tape or electronic data transmission consistent
in all respects with the Transfer Agent's record format, as amended from time to
time, which is believed by the Transfer Agent to be furnished by or on behalf of
any Approved Institution. The Transfer Agent shall not be liable for any losses
or damages to the Fund or its shareholders in the event that a computer tape or
electronic data transmission from an Approved Institution is unable to be
processed for any reason beyond the control of the Transfer Agent, or if any of
the information on such tape or transmission is found to be incorrect.
2. On each Fund Business Day the Transfer Agent shall, as of the time
at which the Fund computes the net asset value of the Fund, issue to and redeem
from the accounts specified in a purchase order, redemption request, or computer
tape or electronic data transmission, which in accordance with the Prospectus is
effective on such Fund Business Day, the appropriate number of full and
fractional Shares based on the net asset value per Share of such Fund specified
in an advice received on such Fund Business Day from the Fund. Notwithstanding
the foregoing, if a redemption specified in a computer tape or electronic data
transmission is for a dollar value of Shares in excess of the dollar value of
uncertificated Shares in the specified account, the Transfer Agent shall not
effect such redemption in whole or in part and shall within twenty-four hours
orally advise the Approved Institution which supplied such tape of the
discrepancy.
3. In connection with a reinvestment of a dividend or distribution of
Shares of the Fund, the Transfer Agent shall as of each Fund Business Day, as
specified in a Certificate or resolution described in paragraph 1 of succeeding
Article VI, issue Shares of the Fund based on the net asset value per Share of
such Fund specified in an advice received from the Fund on such Fund Business
Day.
4. On each Fund Business Day the Transfer Agent shall supply the Fund
with a statement specifying with respect to the immediately preceding Fund
Business Day: the total number of Shares of the Fund (including fractional
Shares) issued and outstanding at the opening of business on such day; the total
number of Shares of the Fund sold on such day, pursuant to preceding paragraph 2
of this Article; the total number of Shares of the Fund redeemed from
Shareholders by the Transfer Agent on such day; the total number of Shares of
the Fund redeemed from Shareholders by the Transfer Agent on such day; the total
number of Shares of the Fund, if any, sold on such day pursuant to preceding
paragraph 3 of this Article, and the total number of Shares of the Fund issued
and outstanding.
5. In connection with each purchase and each redemption of Shares, the
Transfer Agent shall send such statements as are prescribed by the Federal
Securities laws applicable to transfer agents or as described in the Prospectus.
If the Prospectus indicates that certificates for Shares are available and if
specifically requested in writing by any shareholder, or if otherwise required
hereunder, the Transfer Agent will countersign, issue and mail to such
shareholder at the address set forth in the records of the Transfer Agent a
Share certificate for any full Share requested.
6. As of each Fund Business Day the Transfer Agent shall furnish the
Fund with an advice setting forth the number and dollar amount of Shares to be
redeemed on such Fund Business Day in accordance with paragraph 2 of this
Article.
7. Upon receipt of a proper redemption request and moneys paid to it by
the Custodian in connection with a redemption of Shares, the Transfer Agent
shall cancel the redeemed Shares and after making appropriate deduction for any
withholding of taxes required of it by applicable law (a) in the case of a
redemption of Shares pursuant to a redemption described in preceding paragraph
1(a) of this Article, make payment in accordance with the Fund's redemption and
payment procedures described in the Prospectus, and (b) in the case of a
redemption of Shares pursuant to a computer tape or electronic data transmission
described in preceding paragraph 1(b) of this Article, make payment by directing
a federal funds wire order to the account previously designated by the Approved
Institution specified in said computer tape or electronic data transmission.
8. The Transfer Agent shall not be required to issue any Shares after
it has received from an Officer of the Fund or from an appropriate federal or
state authority written notification that the sale of Shares has been suspended
or discontinued, and the Transfer Agent shall be entitled to rely upon such
written notification.
9. Upon the issuance of any Shares in accordance with this Agreement
the Transfer Agent shall not be responsible for the payment of any original
issue or other taxes required to be paid by the Fund in connection with such
issuance of any Shares.
10. The Transfer Agent shall accept a computer tape or electronic data
transmission consistent with the Transfer Agent's record format, as amended from
time to time, which is reasonably believed by the Transfer Agent to be furnished
by or on behalf of any Approved Institution and is represented to be
instructions with respect to the transfer of Shares from one account of such
Approved Institution to another such account, and shall effect the transfers
specified in said computer tape or electronic data transmission. The Transfer
Agent shall not be liable for any losses to the Fund or its shareholders in the
event that a computer tape or electronic data transmission from an Approved
Institution is unable to be processed for any reason beyond the control of the
Transfer Agent, or if any of the information on such tape or transmission is
found to be incorrect.
11. (a) Except as otherwise provided in sub-paragraph (b) of this
paragraph and in paragraph 13 of this Article, Shares will be transferred or
redeemed upon presentation to the Transfer Agent of Share certificates or
instructions properly endorsed for transfer or redemption, accompanied by such
documents as the Transfer Agent deems necessary to evidence the authority of the
person making such transfer or redemption, and bearing satisfactory evidence of
the payment of stock transfer taxes. In the case of small estates where no
administration is contemplated, the Transfer Agent may, when furnished with an
appropriate surety bond, and without further approval of the Fund, transfer or
redeem Shares registered in the name of a decedent where the current market
value of the Shares being transferred does not exceed such amount as may from
time to time be prescribed by various states. The Transfer Agent reserves the
right to refuse to transfer or redeem Shares until it is satisfied that the
endorsement on the stock certificate or instructions is valid and genuine, and
for that purpose it will require, unless otherwise instructed by an authorized
officer of the Fund, a guarantee of signature by an "Eligible Guarantor
Institution" as that term is defined by SEC Rule 17Ad-15. The Transfer Agent
also reserves the right to refuse to transfer or redeem Shares until it is
satisfied that the requested transfer or redemption is legally authorized, and
it shall incur no liability for the refusal, in good faith, to make transfers or
redemptions which the Transfer Agent, in its judgement, deems improper or
unauthorized, or until it is satisfied that there is no basis to any claims
adverse to such transfer or redemption. The Transfer Agent may, in effecting
transfers and redemptions of Shares, rely upon those provisions of the Uniform
Act for the Simplification of Fiduciary Security Transfers or the Uniform
Commercial Code, as the same may be amended from time to time, applicable to the
transfer of securities, and the Fund shall indemnify the Transfer Agent for any
act done or omitted by it in good faith in reliance upon such laws; provided,
that in no event will the Fund indemnify the Transfer Agent for any act done by
it as a result of willful misfeasance, bad faith, negligence or reckless
disregard of its duties.
(b) Notwithstanding the foregoing or any other provision contained in
this Agreement to the contrary, the Transfer Agent shall, in the absence of
willful misfeasance, bad faith, negligence or reckless disregard of its duties,
be fully protected by the Fund in not requiring any instruments, documents,
assurances, endorsements or guarantees, including, without limitation, any
signature guarantees, in connection with a redemption, or transfer, of Shares
whenever the Transfer Agent reasonably believes that requiring the same would be
inconsistent with the transfer and redemption procedures as described in the
Prospectus.
12. Notwithstanding any provision contained in this agreement to the
contrary, the Transfer Agent shall not be required or expected to require, as a
condition to any transfer of any Shares pursuant to paragraph 11 of this Article
or any redemption of any Shares pursuant to a computer tape or electronic data
transmission described in this Agreement, any documents, including, without
limitation, any documents of the kind described in sub-paragraph (a) of
paragraph 11 of this Article, to evidence the authority of the person requesting
the transfer or redemption and/or the payment of any stock transfer taxes, and
shall, in the absence of willful misfeasance, bad faith, negligence or reckless
disregard of its duties, be fully protected in acting in accordance with the
applicable provisions of this Article.
13. (a) As used in this Agreement, the terms "computer tape" or
electronic data transmission and "computer tape believed by the Transfer Agent
to be furnished by an Approved Institution," shall include any tapes generated
by the Transfer Agent to reflect information believed by the Transfer Agent to
have been input by an Approved Institution, via a remote terminal or other
similar link, into a data processing, storage, or collection system, or similar
system (the "System"), located on the Transfer Agent's premises. For purposes of
paragraph 1 of this Article, such a computer tape or electronic data
transmission shall be deemed to have been furnished at such times as are agreed
upon from time to time by the Transfer Agent and Fund only if the information
reflected thereon was inputted into the System at such times as are agreed upon
from time to time by the Transfer Agent and the Fund.
(b) Nothing contained in this Agreement shall constitute any
agreement or representation by the Transfer Agent to permit, or to agree to
permit, any Approved Institution to input information into a System.
(c) The Transfer Agent reserves the right to approve, in advance, any
Approved Institution, such approval not to be unreasonably withheld. The
Transfer Agent also reserves the right to terminate any and all automated data
communications, at its discretion, upon a reasonable attempt to notify the Fund
when in the opinion of the Transfer Agent continuation of such communications
would jeopardize the accuracy and/or integrity of the Fund's records on the
System.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Fund shall furnish to the Transfer Agent a copy of a resolution
of its Board of Directors, certified by the Secretary or any Assistant
Secretary, either (i) setting forth the date of the declaration of a dividend or
distribution, the date of accrual or payment, as the case may be, thereof, the
record date as of which Shareholders entitled to payment, or accrual, as the
case may be, shall be determined, the amount per Share of such dividend or
distribution, the payment date on which all previously accrued and unpaid
dividends are to be paid, and the total amount, if any, payable to the Transfer
Agent on such payment date, or (ii) authorizing the declaration of dividends and
distributions on a daily or other periodic basis and authorizing the Transfer
Agent to rely on a Certificate setting forth the information described in
subsection (i) of this paragraph.
2. Upon the mail date specified in such Certificate or resolution, as
the case may be, the Fund shall, in the case of a cash dividend or distribution,
cause the Custodian to deposit in an account in the name of the Transfer Agent
on behalf of the Fund an amount of cash, if any, sufficient for the Transfer
Agent to make the payment, as of the mail date, specified in such Certificate or
resolution, as the case may be, to the Shareholders who were of record on the
record date. The Transfer Agent will, upon receipt of any such cash, make
payment of such cash dividends or distributions to the shareholders of record as
of the record date by: (i) mailing a check, payable to the registered
shareholder, to the address of record or dividend mailing address, or (ii)
wiring such amounts to the accounts previously designated by an Approved
Institution, as the case may be. The Transfer Agent shall not be liable for any
improper payments made in good faith and without willful misfeasance, negligence
or reckless disregard of its duties, in accordance with a Certificate or
resolution described in the preceding paragraph. If the Transfer Agent shall not
receive from the Custodian sufficient cash to make payments of any cash dividend
or distribution to all shareholders of the Fund as of the record date, the
Transfer Agent shall, upon notifying the Fund, withhold payment to all
shareholders of record as of the record date until sufficient cash is provided
to the Transfer Agent.
3. It is understood that the Transfer Agent shall in no way be
responsible for the determination of the rate or form of dividends or capital
gain distributions due to the shareholders. It is expressly agreed and
understood that the Transfer Agent is not liable for any loss as a result of
processing a distribution based on information provided in the Certificate that
is incorrect. The Fund agrees to pay the Transfer Agent for any and all costs,
both direct and out-of-pocket expenses, incurred in such corrective work as
necessary to remedy such error.
4. It is understood that the Transfer Agent shall file such appropriate
information returns concerning the payment of dividend and capital gain
distributions with the proper federal, state and local authorities as are
required by law to be filed by the Fund but shall in no way be responsible for
the collection or withholding of taxes due on such dividends or distributions
due to shareholders, except and only to the extent, required by applicable law.
ARTICLE VII
CONCERNING THE FUND
1. The Fund represents to the Transfer Agent that:
(a) It is a corporation duly organized and existing under the laws of
the State of Maryland.
(b) It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
(d) It is an investment company registered under the Investment
Company Act of 1940, as amended.
(e) A registration statement under the Securities Act of 1933, as
amended, with respect to the Shares is effective. The Fund shall notify the
Transfer Agent if such registration statement or any state securities
registrations have been terminated or a stop order has been entered with respect
to the Shares.
2. Each copy of the Articles of Incorporation of the Fund and copies of
all amendments thereto shall be certified by the Secretary of State (or other
appropriate official) of the state of organization, and if such Articles of
Incorporation and/or amendments are required by law also to be filed with a
county or other officer or official body, a certificate of such filing shall be
filed with a certified copy submitted to the Transfer Agent. Each copy of the
By-Laws and copies of all amendments thereto, and copies of resolutions of the
Board of Directors of the Fund, shall be certified by the Secretary of the Fund
under seal.
3. The Fund shall promptly deliver to the Transfer Agent written notice
of any change in the Officers authorized to sign Share Certificates,
notifications or requests, together with a specimen signature of each new
Officer. In the event any Officer who shall have signed manually or whose
facsimile signature shall have been affixed to blank Share certificates shall
die, resign or be removed prior to issuance of such Share certificates, the
Transfer Agent may issue such Share certificates of the Fund notwithstanding
such death, resignation or removal, and the Fund shall promptly deliver to the
Transfer Agent such approval, adoption or ratification as may be required by
law.
4. It shall be the sole responsibility of the Fund to deliver to the
Transfer Agent the Fund's currently effective Prospectus and, for the purposes
of this Agreement, the Transfer Agent shall not be deemed to have notice of any
information contained in such Prospectus until a reasonable time after it is
actually received by the Transfer Agent.
ARTICLE VIII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Fund that:
(a) It is a corporation duly organized and existing under the laws of
the State of Delaware.
(b) It is empowered under applicable law and by its Charter and
By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent under Section 17A of
the Securities Exchange Act of 1934, as amended.
2. The Transfer Agent shall not be liable and shall be indemnified in
acting upon any computer tape or electronic data transmission, writing or
document reasonably believed by it to be genuine and to have been signed or made
by an Officer of the Fund or person designated by the Fund and shall not be held
to have any notice of any change of authority of any person until receipt of
written notice thereof from the Fund or such person. It shall also be protected
in processing Share certificates which bear the proper countersignature of the
Transfer Agent and which it reasonably believes to bear the proper manual or
facsimile signature of the Officers of the Fund.
3. The Transfer Agent upon notice to the Fund may establish such
additional procedures, rules and regulations governing the transfer or
registration of Share certificates as it may deem advisable and consistent with
such rules and regulations generally adopted by mutual fund transfer agents.
4. The Transfer Agent shall keep such records as are specified in
Schedule II hereto in the form and manner, and for such period, as it may deem
advisable and is agreeable to the Fund but not inconsistent with the rules and
regulations of appropriate government authorities, in particular Rules 31a-2 and
31a-3 under the Investment Company Act of 1940, as amended. The Transfer Agent
acknowledges that such records are the property of the Fund. The Transfer Agent
may deliver to the Fund from time to time at its discretion, for safekeeping or
disposition by the Fund in accordance with law, such records, papers, documents
accumulated in the execution of its duties as such Transfer Agent, as the
Transfer Agent may deem expedient, other than those which the Transfer Agent is
itself required to maintain pursuant to applicable laws and regulations. The
Fund shall assume all responsibility for any failure thereafter to produce any
record, paper, cancelled Share certificate, or other document so returned, if
and when required. The records specified in Schedule II hereto maintained by the
Transfer Agent pursuant to this paragraph 4, which have not been previously
delivered to the Fund pursuant to the foregoing provisions of this paragraph 4,
shall be considered to be the property of the Fund, shall be made available upon
request for inspection by the officers, employees, and auditors of the Fund, and
records shall be delivered to the Fund upon request and in any event upon the
date of termination of this Agreement, as specified in Article IX of this
Agreement, in the form and manner kept by the Transfer Agent on such date of
termination or such earlier date as may be requested by the Fund.
5. The Transfer Agent shall not be liable for any loss or damage,
including counsel fees, resulting from its actions or omissions to act or
otherwise, except for any loss or damage arising out of its bad faith,
negligence, willful misfeasance, or reckless disregard of its duties under this
agreement.
6. (a) The Fund shall indemnify and exonerate, save and hold harmless
the Transfer Agent from and against any and all claims (whether with or without
basis in fact or law), demands, expenses (including reasonable attorney's fees)
and liabilities of any and every nature which the Transfer Agent may sustain or
incur or which may be asserted against the Transfer Agent by any person by
reason of or as a result of any action taken or omitted to be taken by any prior
transfer agent of the Fund or as a result of any action taken or omitted to be
taken by the Transfer Agent in good faith and without negligence, reckless
disregard of its duties under this agreement or willful misconduct or in
reliance upon and in conformity with (i) any provision of this Agreement; (ii)
the Prospectus; (iii) any instruction or order including, without limitation,
any computer tape or electronic data transmission reasonably believed by the
Transfer Agent to have been received from an Approved Institution; (iv) any
instrument, order or Share certificate reasonably believed by it to be genuine
and to be signed, countersigned or executed by any duly authorized Officer of
the Fund; (v) any Certificate or other instructions of an Officer; or (vi) any
opinion of legal counsel for the Fund. The Fund shall indemnify and exonerate,
save and hold the Transfer Agent harmless from and against any and all claims
(whether with or without basis in fact or law), demands, expenses (including
reasonable attorney's fees) and liabilities of any and every nature which the
Transfer Agent may sustain or incur or which may be asserted against the
Transfer Agent by any person by reason of or as a result of any action taken or
omitted to be taken by the Transfer Agent in food faith and without negligence,
reckless disregard of its duties under this agreement or willful misconduct in
connection with its appointment or in reliance upon and in conformity with any
law, act, regulation or any judicial or regulatory interpretation of the same
even though such law, act or regulation may thereafter have been altered,
changed, amended or repealed.
(b) The Transfer Agent shall not settle any claim, demand,
expense or liability to which it may seek indemnity pursuant to paragraph 6(a)
above (each, an "Indemnifiable Claim") without the express written consent of an
Officer of the Fund. The Transfer Agent shall notify the Fund within 15 days of
receipt of notification of an Indemnifiable Claim, provided that the failure by
the Transfer Agent to furnish such notification shall not impair its right to
seek indemnification from the Fund unless the Fund is unable to adequately
defend the Indemnifiable Claim as a result of such failure, and further
provided, that if as a result of the Transfer Agent's failure to provide the
Fund with timely notice of the institution of litigation a judgment by default
is entered, prior to seeking indemnification from the Fund the Transfer Agent,
at its own cost and expense, shall open such judgment. The Fund shall have the
right to defend any Indemnifiable Claim at its own expense, provided that such
defense shall be conducted by counsel selected by the Fund and reasonably
acceptable to the Transfer Agent. The Transfer Agent may join in such defense at
its own expense, but to the extent that it shall so desire the Fund shall direct
such defense. The Fund shall not settle any Indemnifiable Claim without the
express written consent of the Transfer Agent if the Transfer Agent determines
that such settlement would have an adverse effect on the Transfer Agent beyond
the scope of this Agreement. In such event, each of the Fund and the Transfer
Agent shall be responsible for their own defense at their own cost and expense,
and such claim shall not be deemed an Indemnifiable Claim hereunder. If the Fund
shall fail or refuse to defend an Indemnifiable Claim, the Transfer Agent may
provide its own defense at the cost and expense of the Fund. Anything in this
Agreement to the contrary notwithstanding, the Fund shall not indemnify the
Transfer Agent against any liability or expense arising out of the Transfer
Agent's willful misfeasance, bad faith, negligence or reckless disregard of its
duties and obligations under this Agreement. The Transfer Agent shall indemnify
and hold the Fund harmless from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to any action or failure or omission to act by the Transfer Agent
as a result of the Transfer Agent's lack of good faith, reckless disregard of
its duties under this agreement, negligence or willful misconduct.
7. The Transfer Agent shall not be liable to the Fund with respect to
any redemption draft on which the signature of the drawer is forged and which
the Fund's Custodian or Cash Management bank has advised the Transfer Agent to
honor the redemption; nor shall Transfer Agent be liable for any material
alteration or absence or forgery of any endorsement, it being understood that
the Transfer Agent's sole responsibility with respect to inspecting redemption
drafts is to use reasonable care to verify the drawer's signature against
signatures on file.
8. There shall be excluded from the consideration of whether the
Transfer Agent has been negligent or has breached this Agreement, any period of
time, and only such period of time, during which the Transfer Agent's
performance is materially affected, by reason of circumstances beyond its
control (collectively, "Causes"), including, without limitation (except as
provided below), (a) mechanical breakdowns of equipment (including any
alternative power supply and operating systems software), flood or catastrophe,
acts of God, failures of transportation, communication or power supply, strikes,
lockouts, work stoppages or other similar circumstances.
9. At any time the Transfer Agent may apply to an Officer of the Fund
for written instructions with respect to any matter arising in connection with
the Transfer Agent's duties and obligations under this Agreement, and the
Transfer Agent shall not be liable for any action taken or permitted by it in
good faith in accordance with such written instructions. Such application by the
Transfer Agent for written instructions from an Officer of the Fund may set
forth in writing any action proposed to be taken or omitted by the Transfer
Agent with respect to its duties or obligations under this Agreement and the
date on and/or after which such action shall be taken. The Transfer Agent shall
not be liable for any action taken or omitted in accordance with a proposal
included in any such application on or after the date specified therein unless,
prior to taking or omitting any such action, the Transfer Agent has received
written instructions in response to such application specifying the action to be
taken or omitted. The Transfer Agent may consult counsel of the Fund and shall
be fully protected with respect to anything done or omitted by it in good faith
in accordance with the advice or opinion of counsel to the Fund.
10. The Transfer Agent may issue new Share certificates in place of
certificates represented to have been lost, stolen, or destroyed upon receiving
written instructions from the shareholder accompanied by proof of an indemnity
or surety bond issued by a recognized insurance institution specified by the
Fund or the Transfer Agent. If the Transfer Agent receives written notification
from the shareholder or broker dealer that the certificate issued was never
received, and such notification is made within 30 days of the date of issuance,
the Transfer Agent may reissue the certificate without requiring a surety bond.
The Transfer Agent may also reissue certificates which are represented as lost,
stolen, or destroyed without requiring a surety bond provided that the
notification is in writing and accompanied by an indemnification signed on
behalf of a member firm of the New York Stock Exchange and signed by an officer
of said firm with the signature guaranteed. Notwithstanding the foregoing, the
Transfer Agent will reissue a certificate upon written authorization from an
Officer of the Fund.
11. In case of any requests or demands for the inspection of the
shareholder records of the Fund, the Transfer Agent will endeavor to notify the
Fund promptly and to secure instructions from an Officer as to such inspection.
The Transfer Agent reserves the right, however, to exhibit the shareholder
records to any person whenever it receives an opinion from its counsel that
there is a reasonable likelihood that the Transfer Agent will be held liable for
the failure to exhibit the shareholder records to such person; provided,
however, that in connection with any such disclosure the Transfer Agent shall
promptly notify the Fund that such disclosure has been made or is to be made.
12. At the request of an Officer of the Fund the Transfer Agent will
address and mail such appropriate notices to shareholders as the Fund may
direct.
13. Notwithstanding any of the foregoing provisions of this Agreement,
the Transfer Agent shall be under no duty or obligation to inquire into, and
shall not be liable for:
(a) The legality of the issue or sale of any Shares, the sufficiency
of the amount to be received therefor, or the authority of the Approved
Institution or of the Fund, as the case may be, to request such sale or
issuance;
(b) The legality of a transfer of Shares, or of a redemption of any
Shares, the propriety of the amount to be paid therefor, or the authority of the
Approved Institution or of the Fund, as the case may be, to request such
transfer or redemption;
(c) The legality of the declaration of any dividend by the Fund, or
the legality of the issue of any Shares in payment of any stock dividend; or
(d) The legality of any recapitalization or readjustment of Shares.
14. The Transfer Agent shall be entitled to receive and the Fund hereby
agrees to pay to the Transfer Agent for its performance hereunder, including its
performance of the duties and functions set forth in Schedule I hereto, (i) its
reasonable out-of-pocket expenses (including reasonable legal expenses and
attorney's fees) incurred in connection with its performance hereunder and (ii)
such compensation as may be agreed upon in writing from time to time by the
Transfer Agent and the Fund.
15. The Transfer Agent shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement, and no covenant or obligation shall be implied in this
Agreement against the Transfer Agent.
16. Purchase and Prices of Services.
(a) The Fund will compensate the Transfer Agent for, and Transfer
Agent will provide, beginning on the execution date of this Agreement and
continuing until the termination of this Agreement as provided hereinafter, the
Services set forth in Schedule I.
(b) The current unit prices for the Services are set forth in
Schedule III (the "Schedule III Fee Schedule"). Once in each calendar year, the
Transfer Agent may elect to raise the Schedule III Fees upon ninety (90) days
prior notice to the Fund. Notwithstanding the annual right to raise the Schedule
III Fees, the Transfer Agent may increase prices due to changes in legal or
regulatory requirements subject to the approval of the Fund, which approval
shall not be unreasonably withheld.
17. Billing and Payment.
(a) The Transfer Agent shall bill the Fund as follows: (i) monthly in
arrears for Accounts maintained; and (ii) monthly in advance for estimated
Out-of-Pocket Expenses to be incurred by the Transfer Agent for the following
month. Documentation to support reconciliation of actual Out-of-Pocket Expenses
charges will be provided to the Fund monthly. The Transfer Agent may from time
to time request the Fund to make additional advances when appropriate.
(b) The Fund shall pay the Transfer Agent in immediately available
funds at United Missouri Bank in Kansas City, Missouri within thirty (30) days
of the date of the bill. Any amounts due under this Agreement which are not paid
within said thirty (30) day period shall bear interest at the rate of one and
one-half percent (1 1/2%) per month from such date until paid in full.
ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement by giving to
the other party a notice in writing specifying the date of such termination,
which shall be not less than 60 days after the date of receipt of such notice.
In the event such notice is given by the Fund, it shall be accompanied by a copy
of a resolution of the Board of Directors of the Fund, certified by the
Secretary or any Assistant Secretary, electing to terminate this Agreement and
designating the successor transfer agent or transfer agents. In the event such
notice is given by the Transfer Agent, the Fund shall on or before the
termination date, deliver to the Transfer Agent a copy of a resolution of its
Board of Directors certified by the Secretary or any Assistant Secretary
designating a successor transfer agent or transfer agents. In the absence of
such designation by the Fund, the Fund shall upon the date specified in the
notice of termination of this Agreement and delivery of the records maintained
hereunder, be deemed to be its own transfer agent and the Transfer Agent shall
thereby be relieved of all duties and responsibilities pursuant to this
Agreement.
In the event this Agreement is terminated as provided herein, the
Transfer Agent, upon the written request of the Fund, shall deliver the records
of the Fund on electromagnetic media to the Fund or its successor transfer
agent. The Fund shall be responsible to the Transfer Agent for the reasonable
costs and expenses associated with the preparation and delivery of such media.
ARTICLE X
MISCELLANEOUS
1. The Fund agrees that prior to effecting any change in the Prospectus
which would increase or alter the duties and obligations of the Transfer Agent
hereunder, it shall advise the Transfer Agent of such proposed change at least
30 days prior to the intended date of the same, and shall proceed with such
change only if it shall have received the written consent of the Transfer Agent
thereto, which shall not be unreasonably withheld.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund shall be sufficiently given if addressed
to the Fund and mailed or delivered to it at its office at the address first
above written, or at such other place as the Fund may from time to time
designate in writing.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Transfer Agent shall be sufficiently given if
addressed to the Transfer Agent and mailed or delivered to the Secretary at 120
South LaSalle, Chicago, IL, with a copy to the President at 811 Main Street,
Kansas City, MO, or at such other place as the Transfer Agent may from time to
time designate in writing.
4. This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties with the formality of this
Agreement.
5. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns. This Agreement shall not be
assignable by either party without the written consent of the other party,
except that the Transfer Agent may assign this Agreement to a corporate
affiliate with advance written notice to the Fund.
6. This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois.
7. This Agreement may be executed in any number of counterparts each of
which shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
8. The provisions of this Agreement are intended to benefit only the
Transfer Agent and the Fund, and no rights shall be granted to any other person
by virtue of this Agreement.
9. (a) The Transfer Agent will endeavor to assist in resolving
shareholder inquiries and errors relating to the period during which prior
transfer agents acted as such for the Fund. Any such inquiries or errors which
cannot be expediently resolved by the Transfer Agent will be referred to the
Fund.
(b) The Transfer Agent shall only be responsible for the safekeeping
and maintenance of transfer agency records, cancelled certificates and
correspondence of the Fund created or produced prior to the time of conversion
which are under its control and acknowledged in a writing to the Fund to be in
its possession. Any expenses or liabilities incurred by the Transfer Agent as a
result of shareholder inquiries, regulatory compliance or audits related to such
records and not caused as a result of Transfer Agent's bad faith, willful
malfeasance or negligence shall be the responsibility of the Fund as provided in
Article VIII herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporation officer, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as the day and year
first above written.
SUPERVISED SERVICE COMPANY, INC. FIRST AMERICAN INVESTMENT FUNDS, INC.
By: _______________________ By: _______________________
(Signature) (Signature)
_______________________ _______________________
(Name) (Name)
_______________________ _______________________
(Title) (Title)
SCHEDULE I
DESCRIPTION OF SERVICES
In consideration of the fees to be paid in such manner and at such
times as Fund and Transfer Agent may agree, Transfer Agent will provide the
services set forth below:
Examine and Process New Accounts, Subsequent Payments, Liquidations,
Exchanges, Telephone Transactions, Check Redemptions, Automatic Withdrawals,
Certificate Issuance, Wire Order Trades, Dividends, Dividend Statements, Dealer
Statements.
DAILY ACTIVITY
Maintain the following shareholder information in such a manner as the
Transfer Agent shall determine:
Name and Address, including Zip Code
Balance of Uncertificated Shares
Balance of Certificated Shares
Certificate number, number of shares, issuance date of each
certificate outstanding and cancellation date for each certificate
date for each certificate no longer outstanding, if issued
Balance of dollars available for redemption
Dividend code (daily accrual, monthly reinvest, monthly cash or
quarterly cash)
Type of account code
Establishment date indicating the date an account was opened, carrying
forward pre-conversion data as available
Original establishment date for accounts opened by exchange
W-9 withholding status and periodic reporting
State of residence code
Social Security or taxpayer identification number, and indication of
certification
Historical transactions on the account for the most recent 18 months,
or other period as mutually agreed to from time-to-time
Indication as to whether phone transactions can be accepted for this
account. Beneficial owner code, i.e. male, female, joint tenant, etc.
An alternate or "secondary" account number issued by a dealer (or
bank, etc.) to a customer for use, inquiry and transaction input by
"remote accessors"
FUNCTIONS
Answer investor and dealer telephone and/or written inquiries, except
those concerning Fund policy, or requests for investment advice which
will be referred to the Fund, or those which the Fund chooses to
answer
Deposit Fund share certificates into accounts upon receipt of
instructions from the investor or other authorized person, if issued
Examine and process transfers of shares insuring that all transfer
requirements and legal documents have been supplied
Process and confirm address changes
Process standard account record changes as required, i.e. Dividend
Codes, etc.
Microfilm source documents for transactions, such as account
applications and correspondence
Perform backup withholding for those accounts which federal government
regulations indicate is necessary
Perform withholdings on liquidations, if applicable, for employee
benefit plans. Prepare and mail 5498s and 1099R's
Solicit missing taxpayer identification numbers
Provide remote access inquiry to Fund records via Fund supplied
hardware (Fund responsible for connection line and monthly fee)
REPORTS PROVIDED
Daily Journals Reflecting all shares and dollar activity for the
previous day
Blue Sky Report Supply information monthly for Fund's preparation of
Blue Sky Reporting
N-SAR Report Supply monthly correspondence, redemption and
liquidation information for use in fund's
N-SAR Report
Additionally, monthly average daily balance reports will be provided
at the Fund's request to the Fund at no charge.
Prepare and mail copies of summary statements to dealers and
investment advisers
Generate and mail confirmation statements for financial transactions
DIVIDEND ACTIVITY
Reinvest or pay in cash including reinvesting in other funds within
the fund group serviced by the Transfer Agent as described in each
Fund Prospectus
Distribute capital gains simultaneously with income dividends
DEALER SERVICES
Prepare and mail confirmation statements to dealers daily
Prepare and mail copies of statements to dealers, same frequency as
investor statements
ANNUAL MEETINGS
Assist Fund in obtaining a qualified service to: address and mail
proxies and related material, tabulate returned proxies and supply
daily reports when sufficient proxies have been received
Prepare certified list of stockholders, hard copy or microform
PERIODIC ACTIVITIES
Mail transaction confirmation statements daily to investors
Address and mail four (4) periodic financial reports (material must be
adaptable to Transfer Agent's mechanical equipment as reasonably
specified by the Transfer Agent)
Mail periodic statement to investors
Compute, prepare and furnish all necessary reports to Governmental
authorities: Forms 1099R, 1099DIV, 1099B, 1042 and 1042S
Enclose various marketing material as designated by the Fund in
statement mailings, i.e. monthly and quarterly statements (material
must be adaptable to mechanical equipment as reasonably specified by
the Transfer Agent)
SCHEDULE II
RECORDS MAINTAINED BY TRANSFER AGENT
- -- Account applications
- -- Cancelled certificates plus stock powers and supporting documents
- -- Checks including check registers, reconciliation records, any
adjustment records and tax withholding documentation
- -- Indemnity bonds for replacement of lost or missing stock certificates
and checks
- -- Liquidation, redemption, withdrawal and transfer requests including
stock powers, signature guarantees and any supporting documentation
EXHIBIT 10(a)
D'ANCONA & PFLAUM
November 10, 1987
Board of Directors
SECURAL Mutual Funds, Inc.
2401 South Memorial Drive
Appleton, Wisconsin 54912
Re: Registration of Common Stock under Securities Act of 1933 and
Investment Company Act of 1940
Dear Sir or Madam:
We have acted as counsel to SECURAL Mutual Funds, Inc., a Maryland
corporation (the "Corporation"), in connection with the preparation and filing
with the Securities and Exchange Commission (the "Commission") of a registration
statement on Form N-1A (the "Registration Statement") under the Securities Act
of 1933 (File No. 33-16905) and the Investment Company Act of 1940 (File No.
811-5309), relating to the registration, pursuant to Commission Rule 24f-2(a)
(1), of an indefinite number of shares of the Corporation's authorized common
stock, par value $0.001 per share (the "Common Stock").
In this regard, we have examined originals or copies of (i) the
Articles of Incorporation and By-Laws of the Corporation, and (ii) resolutions
of the Board of Directors and such other documents and corporate records as we
have deemed appropriate for purposes of rendering this opinion.
Based upon the foregoing, we are of the opinion that (i) the Common
Stock has been duly authorized, and (ii) the shares of Common Stock, when issued
by the Corporation in the manner set for the in the Registration Statement, will
be legally issued, fully paid, and non-assessable, provided that in the
aggregate such shares do not exceed the total number of shares of Common Stock
authorized for issuance by the Corporation's Articles of Incorporation.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the references to our name in the prospectus and statement of
additional information included in the Registration Statement.
Very truly yours,
D'ANCONA & PFLAUM
By: /s/ Sheldon R. Stein
Sheldon R. Stein
SRS:cls
EXHIBIT 10(b)
First American Investment Funds, Inc.
680 East Swedesford Road
Wayne, Pennsylvania 19087
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form N-1A
(Securities Act Registration No. 33-16905) which First American Investment
Funds, Inc. (the "Company") has filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933 for the purpose of registering
for issuance by the Company an indefinite number of the Company's common shares,
par value $.0001 per share.
We are familiar with the proceedings to date with respect to the
proposed issuance by the Company of shares (collectively, the "Shares") of the
Company's Minnesota Insured Intermediate Tax Free Fund, Retail Class and
Institutional Class; Technology Fund, Retail Class and Institutional Class; and
International Fund, Retail Class and Institutional Class; and we have examined
such records, documents and matters of law and have satisfied ourselves as to
such matters of fact as we consider relevant for the purpose of this opinion.
Based on the foregoing, we are of the opinion that:
(a) the Company is validly existing as a corporation organized
under the laws of the State of Maryland; and
(b) the Shares to be issued by the Company will be legally issued,
fully paid and nonassessable when issued and sold upon the
terms and in the manner set forth in the aforementioned
Registration Statement of the Company.
We consent to the references to this firm on the back cover of the
Retail Class Prospectus and the Institutional Class Prospectus for the Shares
(included in Part A of Post-Effective Amendment No. 14 to the aforementioned
Registration Statement) and under "Distributor and Distribution Plan --
Custodian; Transfer Agent; Counsel; Accountants" in the Statements of Additional
Information for the Shares (included in Part B of such Post-Effective Amendment)
and to the filing of this opinion as an exhibit to Post-Effective Amendment No.
15 to such Registration Statement.
Dated: January 26, 1994 Very truly yours,
DORSEY & WHITNEY
EXHIBIT 11(a)
KPMG Peat Marwick LLP
Independent Auditors' Consent
The Board of Directors
First American Investment Funds, Inc.
We consent to the use of our report dated March 27, 1995 included herein and to
the reference to our Firm under the heading "Custodian; Transfer Agent; Counsel;
Accountants" in Part B of the Registration Statement.
KPMG Peat Marwick LLP
Minneapolis, Minnesota
March 27, 1995
EXHIBIT 11(b)
MEMORANDUM
TO: Mr. Harvey N. Daniels, President
First American Investment Funds, Inc.
DATE: November 25, 1991
SUBJECT: First Bank National Association
FBS Investment Services, Inc.
You asked us to advise you as to whether or not FBS Investment
Services, Inc. ("ISI") a wholly owned broker-dealer subsidiary of First Bank
National Association ("FBNA"), may enter into the attached ISI Selling Agreement
(the "Agreement") with SECURA Investments, Inc. ("SECURA"), which we understand
is the sponsor and distributor of First American Investment Funds, Inc. (the
"Company") and which we assume is unaffiliated with FBNA. For the reasons that
follow, it appears that the services of the type described in the Agreement have
been previously approved by the Office of the Comptroller of the Currency (the
"OCC") for national banks and their operating subsidiaries.
A. OCC PRECEDENTS INVOLVING MUTUAL FUND ACTIVITIES
First, in OCC Interpretive Letter No. 332 (March 8, 1985)
(copy attached), the OCC permitted a national bank to make automatic purchases
and sales (on an agency basis) of the shares of certain non-affiliated
tax-exempt mutual funds using one master account for each fund and separate
subaccounts for each customer. In addition to such order-execution and
recordkeeping services, the OCC permitted the bank to provide its customers with
information concerning current fund yields and the value of their holdings./1
Finally, in exchange for performing the foregoing recordkeeping and
informational services, the OCC permitted the bank to receive a fee from each
fund or its distributor, based on the percentage of the amount invested in the
fund by the bank's customers, pursuant to a plan of distribution adopted under
the Securities and Exchange Commission's Rule 12b-1.
_____________________________
1/ The national bank in question did not propose to provide information
concerning the operations or portfolios of the mutual funds involved or to
distribute copies of their prospectuses. Rather, all such information and copies
of the relevant prospectuses were to be provided directly by the funds or their
distributors.
Second, in OCC Interpretive Letter No. 363 (May 23, 1986)
(copy attached), the OCC concluded that a national bank may, in addition to
providing certain order-execution services to its customers, facilitate the
availability of unit investment trust and mutual fund prospectuses and enter
into agreements pursuant to Rule 12b-1 to provide recordkeeping, accounting, and
other services to the bank's customers./2
Third, in OCC Interpretive Letter No. 386 (June 10, 1987)
(copy attached) the OCC permitted a broker-dealer subsidiary of a national bank
to provide, in addition to the activities encompassed by Letter No. 363,
investment advice with respect to the purchase and sale of shares in
unaffiliated mutual funds. Nonetheless, the OCC expressly noted that although
"the Subsidiary may offer specific advice and recommendations, in all cases the
customers will make the decision whether to purchase or sell particular
securities (i.e., the Subsidiary will have no discretion whatsoever regarding
which securities are purchased or sold by customers)." The OCC also expressly
noted the fact that the "Subsidiary will be under no obligation whatsoever to
purchase, sell, promote, or recommend any secondary market security, share of
any mutual fund, or interest in any [unit investment trust]" and that the
"Subsidiary would not contractually commit to use its best efforts to effect the
sale of any share of a mutual fund, interest in a [unit investment trust], or
secondary market security."
Finally, in OCC Interpretive Letter No. 403 (December 9,
1987), the OCC permitted a broker-dealer subsidiary of a national bank to
provide investment advice concerning, and to execute brokerage transactions with
respect to, the shares of mutual funds for which the subsidiary acted as
investment advisor. In connections with these activities, the subsidiary is
required, however, to ensure that all disclosures mandated by the federal
securities laws are made, and to inform prospective purchasers that the unit
investment trusts or mutual funds involved are sponsored by third parties
independent of the subsidiary, its parent bank, or their affiliates. In
addition, the subsidiary is required to disclose to its customers that shares or
interests in such unit investment trusts or mutual funds were not endorsed or
guaranteed by, and did not constitute obligations of, the subsidiary, its parent
bank, or their affiliates, and were not insured by the Federal Deposit Insurance
Corporation.
_____________________________
2/ The national bank in question undertook no obligation to sell or promote
the unit investment trusts or mutual funds in question to any extent whatsoever.
In addition, when providing prospectuses directly to its customers (as opposed
to relaying such requests to a unit investment trust's or fund's distributor),
the bank agreed to inform its customer that the prospectus was provided by unit
investment trust's or mutual fund's sponsor and that the bank was not affiliated
with or endorsing the unit investment trust or mutual fund, but rather was
simply providing the prospectus as a service to its customer.
B. ISI'S PROPOSED ACTIVITIES
Pursuant to the terms of the Agreement, ISI proposes to offer and sell
shares of the several portfolios of the Company (the "Portfolios") to its
customers at the "public offering price" for those shares and subject to the
other terms and conditions set forth in the Company's current prospectus and
statement of additional information. Section 12 of the Agreement also requires
ISI to provide the following additional services:
You shall make services available for your customers and shall
provide such office space and equipment, telephone facilities, personnel and
literature distribution as is necessary or appropriate for providing information
and services regarding the shares to your customers. Such services and
assistance may include, but need not be limited to, establishment of shareholder
accounts, processing purchase and redemption transactions, answering routine
inquiries regarding the Portfolios, and such other services as may be agreed
upon from time to time and as may be permitted by applicable statute, rule or
regulation.
In addition, based upon a telephone discussion with M. Erin
O'Rourke, we also understand that ISI may provide investment advice to its
customers with respect to, and may make recommendations concerning, shares of
the several Portfolios.
In exchange for performing these services for the Company and
the Portfolios, ISI will receive certain fees pursuant to the Plan of
Distribution adopted by the Company pursuant to Rule 12b-1 of the Security and
Exchange Commission. These fees include (i) a portion of the sales charge
attributable to sales of shares of the Portfolios and (ii) service fees based
upon the percentage of average daily net assets attributable to ISI customers.
C. CONCLUSION
Based on the OCC precedents discussed in Part A, the services
contemplated by the Agreement appear to be permissible activities for national
banks and their subsidiaries. Issues may arise in two areas: the rather cryptic
descriptions of the 12b-1 services that the OCC has approved in the foregoing
interpretive letters; and the potentially open-ended range of services in which
ISI might engage, i.e., "such other services as may be agreed upon from time to
time and as may be permitted by applicable statute, rule or regulation."
Our conclusion that ISI generally may engage in these
activities is not affected, moreover, by the fact that ISI's parent corporation,
FBNA, will serve as investment adviser and manager of the Company and its
Portfolios. The OCC has permitted national banks and their subsidiaries to
provide investment advice to one or more mutual funds and simultaneously to
provide investment advice and to execute brokerage transactions with respect to
the shares of those mutual funds. Our conclusion in this respect assumes,
however, that ISI makes all appropriate disclosures mandated by state and
federal law concerning this potential conflict of interest, as well as the
additional disclosures mandated by OCC Interpretive Letter No. 403. It also
assumes that ISI does not manage customer accounts on a discretionary basis or
that, if it does, that ISI will not purchase shares of the Portfolios for such
accounts without the express consent of the customer in question.
Our advice is limited to the law as it exists today, and may
be affected by future OCC interpretations or other legal events.
Please call either Steven E. Carlson (612-340-7888) or John A.
Cooney (612-343-7992) if you have any questions about this memorandum, any of
the attachments, or need further information concerning the OCC's treatment of
these issues.
Attachments: FBS Investment Services, Inc. Selling Agreement
OCC Interpretive Letter No. 332 (March 8, 1985)
OCC Interpretive Letter No. 363 (May 23, 1986)
OCC Interpretive Letter No. 386 (June 10, 1987)
OCC Interpretive Letter No. 403 (December 9, 1987)
We consent to the inclusion of this memorandum as an exhibit
to the Registration Statement of First American Investment Funds, Inc. (1933 Act
Registration Number 33-16905).
Dated: November 25, 1991 Very truly yours,
DORSEY & WHITNEY
FBS INVESTMENT SERVICES, INC. SELLING AGREEMENT
SECURA INVESTMENTS, INC.
2401 South Memorial Drive
Appleton, Wisconsin 54915
(800) 426-5975
Dated:
Dear Sirs or Madams:
As distributor and principal underwriter, we hereby appoint
you to provide distribution and other services with respect to shares of the
portfolios ("Portfolios") of First American Investment Funds, Inc. (the "Fund"),
but only in those states in which the shares of the respective Portfolios may
legally be offered for sale. As principal underwriter of the Fund, we offer to
sell to you shares of the Portfolios on the following terms:
1. In all sales of these shares to the public, you shall act
as an independent contractor and a dealer for your own account, and in no
transaction shall you have any authority to act as agent for the Fund or any
Portfolio, for us or for any representative or agent of either the Fund, any
Portfolio or us.
2. Orders received from you will be accepted by us only at the
public offering price applicable to each order and on the terms set forth in the
then current Prospectus and Statement of Additional Information. Upon receipt
from you of any order to purchase shares, we shall confirm to you in writing or
by wire to be followed by a confirmation in writing. Additional instructions may
be forwarded to you from time to time. All orders from you are subject to
acceptance or rejection by the Fund in its sole discretion.
3. You may offer and sell shares to your customers only at the
public offering price which is the net asset value per share of each Portfolio
plus a sales charge from which you shall receive a discount equal to a
percentage of the applicable offering price as set forth in the attached
Addendum to this Agreement. You understand that the applicable sales charge for
a particular purchase may be subject to a discount asset forth in the then
current Prospectus. You agree to be responsible for transmitting to us the
necessary information regarding the eligibility of any particular purchase for
such a discount. You shall also receive service fees as reflected in the
Addendum:
4. By accepting this Agreement, you agree:
(a) To purchase shares only from us or from your customers.
(b) That you will purchase shares from us only to cover
purchase orders already received from your customers.
(c) That you will not purchase shares from your customers at a
price lower than the price then quoted by or for the Portfolio
involved. You may sell shares for the account of your customers to the
Fund or to us, at the price currently quoted by or for the Portfolio.
(d) That you will withhold placing with us orders received
from your customers so as to profit yourself as a result of such
withholding.
5. We will not accept from you any conditional orders for
shares.
6. If any shares confirmed to you under the terms of this
Agreement are repurchased by the Fund or by us, or are tendered for repurchase,
within seven business days after the date of our confirmation of the original
purchase order, you shall forthwith refund to us the discount to which you were
entitled on such shares. We will notify you of any such repurchase within ten
business days of such repurchase.
7. Payment for shares ordered from us must be received by us
within seven days after our acceptance of your order. If such payment is not
received, we reserve the right without notice forthwith to cancel the sale or,
at our option, to sell the shares ordered back to the Fund, in which case we may
hold you responsible for any loss, including loss of profit, suffered by us or
the Fund as result of your failure to make such payment.
8. Shares sold to you hereunder shall be available in
negotiable form for delivery at our offices located at 2401 South Memorial
Drive, App leton, Wisconsin 54915, against payment, unless other instructions
have been given.
9. No person is authorized to make any representations
concerning the shares except those contained in the then current Prospectus and
Statement of Additional Information relating to the shares and in printed
information subsequently issued by the Fund or by us as information supplemental
to such Prospectus. You shall not sell shares of any Portfolio pursuant to this
Agreement unless the then current Prospectus of the such Portfolio is furnished
to the purchaser prior to the offer and sale.
10. All sales will be made subject to our receipt of shares
from the Fund. We reserve the right, in our discretion, without notice, to
suspend sales or withdraw the offering of shares entirely, to change the
discount or other fees or to modify, cancel or change the terms of this
Agreement. This Agreement shall supersede any prior agreement between us
regarding the shares of the Company. The Addendum hereto may be modified or
supplemented from time to time by us upon notice to you.
11. Your acceptance of this Agreement constitutes a
representation (i) that you are a registered securities dealer under the
Securities Exchange Act of 1934, as amended, and a member in good standing of
the National Association of Securities Dealers, Inc. (the "NASD"), and that you
agree to comply with all applicable state and federal laws, rules and
regulations applicable to transactions hereunder, and to the Rules of Fair
Practice of the NASD including, specifically, Section 26, Article III thereof,
or (ii) if you are offering and selling shares of the Fund only in jurisdictions
outside of the several states, territories and possessions of the United States
and are not otherwise required to be a member of the NASD, that you nevertheless
agree to conduct your business in accordance with the spirit of the Rules of
Fair Practice of the NASD, and to observe the laws and regulations of the
applicable jurisdiction. You likewise agree that you will not offer or sell
shares of the Company in any state or other jurisdiction in which they may not
lawfully be offered for sale, or in which you are not authorized to offer or
sell the shares.
12. You shall make services available for your customers and
shall provide such office space and equipment, telephone facilities, personnel
and literature distribution as is necessary or appropriate for providing
information and services regarding the shares to your customers. Such services
and assistance may include, but need not be limited to, establishment of
shareholder accounts, processing purchase and redemption transactions, answering
routine inquiries regarding the Portfolios, and such other services as may be
agreed upon from time to time and as may be permitted by applicable status, rule
or regulation.
13. You agree to release, indemnify and hold harmless the
Fund, us and our respective representatives and agents from any and all direct
or indirect liabilities or losses resulting from requests, directions, actions
or inactions of or by you, your officers, employees or agents regarding the
purchase, redemption, transfer or registration of shares of the Fund for account
of you, your customers and other shareholders. You shall provide the Fund and us
on a timely basis with such information as may be required to complete various
regulatory filings.
14. Notwithstanding anything to the contrary herein, you shall
have no obligation whatsoever:
(a) To purchase, sell, promote or recommend shares of the
Portfolios; or
(b) To use your best efforts to effect the sale of shares of
the Portfolios.
In addition, neither you nor any of your affiliates, including but not limited
to First Bank National Association, may use your or their assets to finance the
distribution of shares of the Portfolios without a favorable opinion of counsel
to the Portfolios or counsel to First Bank System, Inc.
15. This Agreement may not be assigned by you without our
consent.
16. This Agreement may be terminated at any time by you or us
upon the giving of written notice to the other party.
17. All communications to us shall be sent to the address set
forth in the heading above. Any notice to you shall be duly given if mailed or
telegraphed to you at the address specified by you below.
18. This Agreement shall be construed in accordance with the
internal laws of the State of Wisconsin.
SECURA INVESTMENTS, INC.
By
Its
We have read the foregoing Agreement and the Addendum thereto
and accept the appointments therein and agree to the terms and conditions
thereof.
FBS INVESTMENT SERVICES, INC.
By
Its
and
By
Its
THE ABOVE AGREEMENT MUST BE EXECUTED IN TRIPLICATE AND ONE
COPY WILL BE RETURNED TO FBS INVESTMENT SERVICES, INC.
SECURA INVESTMENTS, INC.
ADDENDUM
TO FBS INVESTMENT SERVICES, INC. SELLING AGREEMENT
FOR SHARES OF
FIRST AMERICAN INVESTMENT FUNDS, INC.
Discount from Sales Charge: _____ % of applicable sales charge
Service Fee: ____ % of the average daily net assets of accounts for which you
are the authorized dealer. You agree that SECURA Investments, Inc.
shall in its sole discretion determine the authorized dealer for
any particular account, and may in its sole discretion assign
portions of accounts among dealers in situations where more than
one dealer has made material sales for any particular account.
EXHIBIT 14
Retirement Plan
INSTRUCTIONS FOR COMPLETING ADOPTION AGREEMENT
Qualified Profit Sharing Plan and Trust
Number 001
These instructions are designed to help you, the employer, along with your
attorney and tax advisor, complete the Adoption Agreement for the Universal
Qualified Retirement Plan. They are only meant to be used as a general guide and
are not intended as a substitute for qualified legal and tax advisors.
If you wish to have us, the financial institution which sponsors this prototype
Plan, help you fill out the Adoption Agreement, we will do so. However, we
recommend that you obtain the advice of your tax or legal advisor before you
sign it.
This Adoption Agreement has been designed for easy completion. There are three
individual pages which require your completion. Each page contains the original
plus two carbonless copies. Firmly grasp the bottom of each page (including the
copies) and detach at the top. Insert the 3 pages into a typewriter and follow
the Section instructions to complete. When finished, detach the bottom and you
will have three copies for each page. Follow this procedure for each of the
three pages to this Adoption Agreement.
SECTION 1.
PLAN AND TRUST NAME
Enter the name by which you wish this Plan to be known. Most employers use the
name of the business entity. For example, the "ABC, Inc." Profit Sharing Plan
and Trust.
SECTION 2.
INITIAL ADOPTION OR REPLACEMENT OF PLAN
Option A.
If you are adopting a new profit sharing plan, check box A and fill in the
effective date. Normally, the effective date is the first day of the tax year in
which this Adoption Agreement is signed.
Option B.
If this Plan is amending and replacing an existing profit sharing plan, check
box B and fill in the appropriate blanks. To do so, you must refer to your
existing profit sharing plan to find the date the existing plan was initially
adopted and the date it was initially effective.
Normally, the effective date of the amendment and restatement is the first day
of the tax year in which this Adoption Agreement is signed.
SECTION 3.
ELIGIBILITY REQUIREMENTS
Within limits, you can specify the number of years your employees must work for
you and the age they must attain before they are eligible to participate in the
Plan. Note that the eligibility requirements which you set up for the Plan apply
to you also.
Suppose, for example, you impose a service requirement of two years and an age
requirement of 21. In that case, only those employees (including yourself) who
have worked for you for two years and are at least 21 years old are eligible to
be covered by the Plan. Be sure to complete Section 3 even if you do not have
employees.
Part A.
Years of Eligibility Service Requirement
Fill in the number of years of service (no more than 3). If you select more than
1 year, the immediate 100% vesting schedule of Section 7, Part A, Option 3 must
be selected.
Part B.
Age Requirement
Fill in the age that an employee must attain (no more than 21) to be eligible to
participate in the Plan.
Part C.
Class of Employees Eligible to Participate
Generally, you are permitted under the law to exclude certain employees covered
by the terms of a collective bargaining agreement (for example, a union
agreement) and non-resident aliens who have no U.S. income. If you wish to do
so, check the box under Section 3, Part C.
SECTION 4.
EMPLOYER CONTRIBUTION FORMULA
For each plan year, your managing body will determine the contribution out of
current or accumulated net profit which you will make to the Plan. There are no
blanks to be completed in this section.
SECTION 5.
EMPLOYER ALLOCATION FORMULA
Option A.
If this Plan will not be integrated with Social Security, check box A.
Option B.
If this Plan will be integrated with Social Security, check box B and fill in an
integration level. Integration is quite complicated so if you intend to
integrate your Plan, you should consult your tax advisor.
SECTION 6.
DEFINITION OF COMPENSATION
Contributions under this Plan are made on the basis of a participant's
compensation. Check box A if you wish to make contributions based on earnings
actually paid within the plan year. Check box B if you wish to make
contributions based on earnings accrued within the plan year.
SECTION 7.
VESTING AND NORMAL RETIREMENT AGE
The vesting schedule determines the rate at which a participant's balance in
their account derived from employer contributions becomes nonforfeitable.
Suppose, for example, you have selected the vesting schedule in Section 7, Part
A-2, and you have an employee who leaves your employ after completing 3 years of
service. He or she will be 40% vested and therefore will be entitled to keep 40%
of the value of his or her account attributable to employer contributions. The
balance of 60% will be forfeited.
Part A.
Select one of the vesting schedules in Section 7, Part A. Note that if you have
imposed a requirement of more than one year of service in Section 3, Part A, you
must select the immediate 100% vesting schedule of Section 7, Part A-3.
Part B
Complete Section 7, Part B, normal retirement age, by selecting and completing
either 1 or 2.
SECTION 8.
HOURS REQUIRED
Part A.
Fill in the number of hours of service which shall be required to constitute a
year of vesting service or a year of eligibility service. This can be no more
than 1,000 hours. Suppose, for example, you fill in 1,000 hours of service. This
means any employee who works at least 1,000 hours during the appropriate period
will be credited with a year of service for the purposes of vesting,
eligibility, etc. On the other hand, if the employee works less than 1,000
hours, he or she will not be credited with a year of service for those purposes.
Part B.
Fill in the number of hours of service which must be exceeded to avoid a break
in service. This can be no more than 500.
SECTION 9.
LIMITATION ON ALLOCATIONS--More Than One Plan
You must read and complete this section if, in addition to this Plan:
You ever maintained a defined benefit plan; or
You currently maintain an individually designed plan. Individually designed
plans are no master or prototype plans, but rather, plans written for just one
particular employer.
SECTION 10.
ADDITIONAL PLANS
This plan is a standardized plan under applicable IRS procedures. An employer
who adopts a standardized plan generally does not have to request a ruling from
the IRS (called a determination letter) that the Plan, under the facts and
circumstances unique to that particular employer, meets the requirements for
qualification under the tax laws and regulations.
Section 10 states an exception to the procedures for standardized plans, namely,
if you maintain another plan (other than paired Money Purchase Pension Plan
Number 002), you must obtain a determination letter if you wish to obtain
assurance that the Plan is qualified.
SECTION 11.
SIGNATURES AND OTHER INFORMATION
Part A.
Employer Information
Fill in the requested information in Part A. In the space marked "Nature of
Business," accurately describe your business. For example, radio and TV repair,
retail bakery, etc. This information is needed to prepare the tax return for the
Plan.
Part B.
Employer Signature
An authorized representative of the employer must sign the Adoption Agreement in
Part B, marked "Employer Signature."
Generally, to name a Trustee of the Plan, complete Part C or Part D.
Part C.
Financial Institution Trustee or Custodian
If our financial institution is acting as trustee or custodian under the Plan,
one of our authorized representatives will sign Part C, marked "Financial
Institution Trustee or Custodian."
Part D.
Individual Trustees
If you and/or others from your company (for example, other officers, partners,
etc.) will be acting as your own trustee(s), all of the trustees which you
appoint must sign Part D, marked "Individual Trustees."
Part E.
Plan Sponsor.
The name and address of our Financial Institution will be filled in as Plan
Sponsor in Part E.
ADOPTION AGREEMENT
Qualified Profit Sharing Plan and Trust
Number 001
SECTION 1.
PLAN AND TRUST NAME
The Plan and Trust shall be known as the [blank] Profit Sharing Plan and Trust.
SECTION 2.
INITIAL ADOPTION OR REPLACEMENT OF PLAN
(Complete either Option A or Option B)
Option A.
[box] This is the initial adoption of a profit sharing plan by the Employer and
is effective on [blank], 19[blank], or
Option B.
[box] This is a replacement of an existing profit sharing plan by amendment and
restatement.
The existing plan was initially adopted on [blank], 19[blank], and initially
effective on [blank], 19[blank].
This amendment and restatement is effective on [blank], 19[blank].
SECTION 3.
ELIGIBILITY REQUIREMENTS
(Complete Part A, B and C)
Part A.
Years of Eligibility Service Requirement
An Employee will be eligible to become a Covered Employee after having completed
[blank] (no more than 3) Years of Eligibility Service. Note: If more than 1 year
is selected, the immediate (100%) vesting schedule of Section 7, Part A, Option
3 must be selected.
Part B.
Age Requirement
An Employee will have met the age requirement upon attainment of age [blank] (no
more than 21).
Part C.
Class of Employees Eligible to Participate
All Employees must be eligible to become Covered Employees, except the following
(if checked):
[box] All Employees except those included in a unit of Employees covered by the
terms of a collective bargaining agreement between Employee representatives (the
term "Employee representatives" does not include any organization more than half
of whose members are Employees who are owners, officers or executives of the
Employer) and the Employer under which retirement benefits were the subject of
good faith bargaining unless the agreement provides that such Employees are to
be included in the Plan, and except those Employees who are non-resident aliens
pursuant to Section 410(b)(3)(C) of the Code and who received no earned income
from the Employer which constitutes income from sources within the United
States.
SECTION 4.
EMPLOYER CONTRIBUTION FORMULA
For each Plan Year, the Employer will contribute out of current or accumulated
Net Profit an amount to be determined from year to year.
SECTION 5.
EMPLOYER ALLOCATION FORMULA
(Choose either Option A or B)
Option A.
[box] The Employer shall allocate the Employer Contribution in the same
percentage pro rata to qualified Participants that the qualified Participant's
Compensation for the Plan Year bears to the total Compensation for the Plan Year
of all qualified Participants.
Option B.
[box] Subject to the special rules for Top Heavy Plans described in Section
4.01(D) of the Plan, the Employer shall allocate the Employer Contribution in
accordance with an integration formula. The Employer Contribution shall be
allocated first in the manner described in Section 5, Option A but only with
respect to Compensation in excess of the integration level. The integration
level shall be [blank] (not in excess of the Taxable Wage Base in effect on the
first day of the Plan Year). The maximum amount which may be allocated to a
Participant in the manner is the product of the tax rate applicable to
contributions for old age, survivor and disability insurance (OASDI) under the
Social Security Act (as in effect on the first day of the Plan Year) and his
Compensation in excess of the integration level. Any remaining portion of the
Employer Contribution shall be allocated in the same manner as Section 5, Option
A.
SECTION 6.
DEFINITION OF COMPENSATION
(Choose either Option A or B)
Compensation will mean all of each Participant's earnings for the Plan Year
which are subject to tax under Section 3101(a) of the Internal Revenue Code
without the dollar limitation of Section 3121(a) but not including deferred
compensation other than contributions through a salary reduction agreement to a
cash or deferred plan under Section 401(k) of the Code or to a tax deferred
annuity under Section 403(b) of the Code, which are:
Option A.
[box] actually paid within such year; or
[box] accrued within such year.
SECTION 7.
VESTING AND NORMAL RETIREMENT AGE
(Complete Part A and B)
Part A.
Participants shall become Vested in the Employer Contribution as follows (Choose
One):
YEARS OF VESTING SERVICE
1
2
3
4
5
6
VESTED AMOUNT
Option 1 [box]
0%
0%
100%
100%
100%
100%
Option 2 [box]
0%
20%
40%
60%
80%
100%
Option 3 [box]
100%
100%
100%
100%
100%
100%
Option 4 [box] Complete if Chosen
[blank]%
[blank]% (not less than 20%)
[blank]% (not less than 40%)
[blank]% (not less than 60%)
[blank]% (not less than 80%)
[blank]% (not less than 100%)
Part B.
For each Participant, the Normal Retirement Age is (Choose One):
Option 1.
[box] Age [blank] (not to exceed 65).
Option 2.
[box] The later of age [blank] (not to exceed 65) or [blank] (not to exceed
10th) anniversary of the participation commencement date. The participation
commencement date is the first day of the first Plan Year in which the
Participant became a Covered Employee.
SECTION 8.
HOURS REQUIRED
(Complete Part A and B)
Part A.
[blank] Hours of Service (no more than 1,000) shall be required to constitute a
Year of Vesting Service or Year of Eligibility Service.
Part B.
[blank] Hours of Service (no more than 500) must be exceeded to avoid a Break in
Service or One Year Break in Service.
SECTION 9.
LIMITATION ON ALLOCATIONS--More Than One Plan
(Complete if Applicable)
If you maintain or ever maintained another qualified plan (other than paired
Plan No. 002) in which any Participant in this Plan is (or was) a Participant or
could possibly become a Participant, you must complete this section.
Part A.
If the Participant is covered under another qualified defined contribution plan
maintained by the Employer, other than a master or prototype plan:
1. [box] The provisions of subsections (B)(1) through (B)(6) of Section 4.05 of
the Plan will apply as if the other plan were a master or prototype plan.
2. [box] Other method. (Provide the method under which the plans will limit
total annual additions to the maximum permissible amount, and will properly
reduce any excess amounts, in a manner that precludes Employer discretion.)
[blank]
Part B.
If the Participant is or has ever been a participant in a defined benefit plan
maintained by the Employer, the Employer will provide below the language which
will satisfy the 1.0 limitation of Section 415(e) of the Code.
Such language must preclude Employer discretion. (Complete)
[blank]
Part C.
The limitation year is the following 12-consecutive month period:
[blank]
SECTION 10.
ADDITIONAL PLANS
An Employer who has ever maintained or who later adopts any plan (including,
after December 31, 1985, a welfare benefit fund as defined in Section 419(e) of
the Code, which provides post-retirement medical benefits allocated to separate
accounts for key employees as defined in Section 419A(d)(3) of the Code) in
addition to this Plan (other than paired plan No. 002) may not rely on the
opinion letter issued by the National Office of the Internal Revenue Service as
evidence that this Plan is qualified under Section 401 of the Internal Revenue
Code. If the Employer who adopts or maintains multiple plans wishes to obtain
reliance that his or her plan(s) are qualified, application for a determination
letter should be made to the appropriate Key District Director of Internal
Revenue.
This Adoption Agreement may be used only in conjunction with Basic Plan Document
No. 01.
SECTION 11.
SIGNATURES AND OTHER INFORMATION
(Complete Part A, B and E, and either Part C or D)
Date Executed [blank]
Part A.
Employer Information
Name of Business [blank]
Address [blank]
Phone [blank]
Nature of Business [blank]
Income Tax Year Ends [blank (month) (day)]
Federal Tax Identification Number [blank]
Part B.
Employer Signature
Signature [blank]
Witness [blank]
(Type Name) [blank]
Part C.
Financial Institution Trustee or Custodian
Name Institution Trustee or Custodian [blank]
Signature [blank]
Witness [blank]
(Type Name) [blank]
Part D.
Individual Trustees
Signature [blank]
Witness [blank]
(Type Name) [blank]
Signature [blank]
Witness [blank]
(Type Name) [blank]
Part E.
Plan Sponsor
Name of Sponsor [blank]
Address [blank]
Note: The Plan Sponsor recommends that advice be obtained from a qualified
attorney and tax advisor regarding completion of this Agreement prior to its
execution.
AGREEMENT
Qualified Money Purchase
Pension Plan and Trust
Number
INSTRUCTIONS FOR COMPLETING ADOPTION AGREEMENT
Qualified Money Purchase Pension Plan and Trust
Number 002
These instructions are designed to help you, the employer, along with your
attorney and tax advisor, complete the Adoption Agreement for the Universal
Qualified Retirement Plan. They are only meant to be used as a general guide and
are not intended as a substitute for qualified legal and tax advisors.
If you wish to have us, the financial institution which sponsors this prototype
Plan, help you fill out the Adoption Agreement, we will do so. However, we
recommend that you obtain the advice of your tax or legal advisor before you
sign it.
This Adoption Agreement has been designed for easy completion. There are three
individual pages which require your completion. Each page contains the original
plus two carbonless copies. Firmly grasp the bottom of each page (including the
copies) and detach at the top. Insert the 3 pages into a typewriter and follow
the Section instructions to complete. When finished, detach the bottom and you
will have three copies for each page. Follow this procedure for each of the
three pages to this Adoption Agreement.
SECTION 1.
PLAN AND TRUST NAME
Enter the name by which you wish this Plan to be known. Most employers use the
name of the business entity. For example, the "ABC, Inc." Money Purchase Pension
Plan and Trust.
SECTION 2.
INITIAL ADOPTION OR REPLACEMENT OF PLAN
Option A.
If you are adopting a new money purchase pension plan, check box A and fill in
the effective date. Normally, the effective date is the first day of the tax
year in which this Adoption Agreement is signed.
Option B.
If this Plan is amending and replacing an existing money purchase pension plan,
check box B and fill in the appropriate blanks. To do so, you must refer to your
existing money purchase pension plan to find the date the existing plan was
initially adopted and the date it was initially effective.
Normally, the effective date of the amendment and restatement is the first day
of the tax year in which this Adoption Agreement is signed.
SECTION 3.
ELIGIBILITY REQUIREMENTS
Within limits, you can specify the number of years your employees must work for
you and the age they must attain before they are eligible to participate in the
Plan. Note that the eligibility requirements which you set up for the Plan apply
to you also.
Suppose, for example, you impose a service requirement of two years and an age
requirement of 21. In that case, only those employees (including yourself) who
have worked for you for two years and are at least 21 years old are eligible to
be covered by the Plan. Be sure to complete Section 3 even if you do not have
employees.
Part A.
Years of Eligibility Service Requirement
Fill in the number of years of service (no more than 3). If you select more than
1 year, the immediate 100% vesting schedule of Section 7, Part A, Option 3 must
be selected.
Part B.
Age Requirement
Fill in the age that an employee must attain (no more than 21) to be eligible to
participate in the Plan.
Part C.
Class of Employees Eligible to Participate
Generally, you are permitted under the law to exclude certain employees covered
by the terms of a collective bargaining agreement (for example, a union
agreement) and non-resident aliens who have no U.S. income. If you wish to do
so, check the box under Section 3, Part C.
SECTION 4.
NON-INTEGRATED EMPLOYER CONTRIBUTION FORMULA
If this Plan will not be integrated with Social Security, complete Section 4 by
indicating the percentage of each participant's compensation you will contribute
to the Plan each year. This is a fixed percentage and must be contributed
whether you have profits or not. Note: This percentage should not exceed 25
percent for incorporated businesses, or 20 percent for non-incorporated
businesses.
SECTION 5.
INTEGRATED EMPLOYER CONTRIBUTION FORMULA
Complete this section only if this Plan will be integrated with Social Security.
Integration is quite complicated so if you intend to integrate your Plan, you
should consult your tax advisor.
SECTION 6.
DEFINITION OF COMPENSATION
Contributions under this Plan are made on the basis of a participant's
compensation. Check box A if you wish to make contributions based on earnings
actually paid within the Plan year. Check box B if you wish to make
contributions based on earnings accrued within the Plan year.
SECTION 7.
VESTING AND NORMAL RETIREMENT AGE
The vesting schedule determines the rate at which a participant's balance in
their account derived from employer contributions becomes nonforfeitable.
Suppose, for example, you have selected the vesting schedule in Section 7, Part
A-2, and you have an employee who leaves your employ after completing 3 years of
service. He or she will be 40% vested and therefore will be entitled to keep 40%
of the value of his or her account attributable to employer contributions. The
balance of 60% will be forfeited.
Part A.
Select one of the vesting schedules in Section 7, Part A. Note that if you have
imposed a requirement of more than one year of service in Section 3, Part A, you
must select the immediate 100% vesting schedule of Section 7, Part A, Option 3.
Part B
Complete Section 7, Part B, normal retirement age, by selecting and completing
either Option 1 or 2.
SECTION 8.
HOURS REQUIRED
Part A.
Fill in the number of hours of service which shall be required to constitute a
year of vesting service or a year of eligibility service. This can be no more
than 1,000 hours. Suppose, for example, you fill in 1,000 hours of service. This
means any employee who works at least 1,000 hours during the appropriate period
will be credited with a year of service for the purposes of vesting,
eligibility, etc. On the other hand, if the employee works less than 1,000
hours, he or she will not be credited with a year of service for those purposes.
Part B.
Fill in the number of hours of service which must be exceeded to avoid a break
in service. This can be no more than 500.
SECTION 9.
LIMITATION ON ALLOCATIONS--More Than One Plan
You must read and complete this section if, in addition to this Plan:
You ever maintained a defined benefit plan; or
You currently maintain an individually designed plan. Individually designed
plans are no master or prototype plans, but rather, plans written for just one
particular employer.
SECTION 10.
ADDITIONAL PLANS
This plan is a standardized plan under applicable IRS procedures. An employer
who adopts a standardized plan generally does not have to request a ruling from
the IRS (called a determination letter) that the plan, under the facts and
circumstances unique to that particular employer, meets the requirements for
qualification under the tax laws and regulations.
Section 10 states an exception to the procedures for standardized plans, namely,
if you maintain another plan (other than paired Profit Sharing Plan Number 001),
you must obtain a determination letter if you wish to obtain assurance that the
Plan is qualified.
SECTION 11.
SIGNATURES AND OTHER INFORMATION
Part A.
Employer Information
Fill in the requested information in Part A. In the space marked "Nature of
Business," accurately describe your business. For example, radio and TV repair,
retail bakery, etc. This information is needed to prepare the tax return for the
Plan.
Part B.
Employer Signature
An authorized representative of the employer must sign the Adoption Agreement in
Part B, marked "Employer Signature."
Generally, to name a Trustee of the Plan, complete Part C or Part D.
Part C.
Financial Institution Trustee or Custodian
If our financial institution is acting as trustee or custodian under the Plan,
one of our authorized representatives will sign Part C, marked "Financial
Institution Trustee or Custodian."
Part D.
Individual Trustees
If you and/or others from your company (for example, other officers, partners,
etc.) will be acting as your own trustee(s), all of the trustees which you
appoint must sign Part D, marked "Individual Trustees."
Part E.
Plan Sponsor.
The name and address of our Financial Institution will be filled in as Plan
Sponsor in Part E.
ADOPTION AGREEMENT
Qualified Money Purchase Pension Plan and Trust
Number 002
SECTION 1.
PLAN AND TRUST NAME
The Plan and Trust shall be known as the [blank] Money Purchase Pension Plan and
Trust.
SECTION 2.
INITIAL ADOPTION OR REPLACEMENT OF PLAN
(Complete either Option A or Option B)
Option A.
[box] This is the initial adoption of a money purchase pension plan by the
Employer and is effective on [blank], 19[blank], or
Option B.
[box] This is a replacement of an existing money purchase pension plan by
amendment and restatement.
The existing plan was initially adopted on [blank], 19[blank], and initially
effective on [blank], 19[blank].
This amendment and restatement is effective on [blank], 19[blank].
SECTION 3.
ELIGIBILITY REQUIREMENTS
(Complete Part A, B and C)
Part A.
Years of Eligibility Service Requirement
An Employee will be eligible to become a Covered Employee after having completed
[blank] (no more than 3) Years of Eligibility Service. Note: If more than 1 year
is selected, the immediate (100%) vesting schedule of Section 7, Part A, Option
3 must be selected.
Part B.
Age Requirement
An Employee will have met the age requirement upon attainment of age [blank] (no
more than 21).
Part C.
Class of Employees Eligible to Participate
All Employees must be eligible to become Covered Employees, except the following
(if checked):
[box] All Employees except those included in a unit of Employees covered by the
terms of a collective bargaining agreement between Employee representatives (the
term "Employee representatives" does not include any organization more than half
of whose members are Employees who are owners, officers or executives of the
Employer) and the Employer under which retirement benefits were the subject of
good faith bargaining unless the agreement provides that such Employees are to
be included in the Plan, and except those Employees who are non-resident aliens
pursuant to Section 410(b)(3)(C) of the Code and who received no earned income
from the Employer which constitutes income from sources within the United
States.
SECTION 4.
NON-INTEGRATED EMPLOYER CONTRIBUTION FORMULA
(Complete if this Plan is not integrated)
For each Plan Year, the Employer will contribute for each qualified Participant
[blank]% (not to exceed 25%) of the qualified Participant's Compensation for the
Plan Year.
SECTION 5.
INTEGRATED EMPLOYER CONTRIBUTION FORMULA
(Complete if this Plan is integrated)
For each Plan Year, the Employer will contribute for each qualified Participant
an amount equal to [blank]% of the qualified Participant's Compensation for the
Plan Year, plus [blank]% (not to exceed the tax rate applicable to Employers for
old age, survivors and disability insurance (OASDI) under the Social Security
Act) of such Participant's Compensation for the Plan Year in excess of [blank]
(not to exceed the Taxable Wage Base). Both the Taxable Wage Base and OASDI tax
rate are those in effect on the first day of the Plan Year.
SECTION 6.
DEFINITION OF COMPENSATION
(Choose either Option A or B)
Compensation will mean all of each Participant's earnings for the Plan Year
which are subject to tax under Section 3101(a) of the Internal Revenue Code
without the dollar limitation of Section 3121(a) but not including deferred
compensation other than contributions through a salary reduction agreement to a
cash or deferred plan under Section 401(k) of the Code or to a tax deferred
annuity under Section 403(b) of the Code, which are:
Option A.
[box] actually paid within such year; or
[box] accrued within such year.
SECTION 7.
VESTING AND NORMAL RETIREMENT AGE
(Complete Part A and B)
Part A.
Participants shall become Vested in the Employer Contribution as follows (Choose
One):
YEARS OF VESTING SERVICE
1
2
3
4
5
6
VESTED AMOUNT
Option 1 [box]
0%
0%
100%
100%
100%
100%
Option 2 [box]
0%
20%
40%
60%
80%
100%
Option 3 [box]
100%
100%
100%
100%
100%
100%
Option 4 [box] Complete if Chosen
[blank]%
[blank]% (not less than 20%)
[blank]% (not less than 40%)
[blank]% (not less than 60%)
[blank]% (not less than 80%)
[blank]% (not less than 100%)
Part B.
For each Participant, the Normal Retirement Age is (Choose One):
Option 1.
[box] Age [blank] (not to exceed 65).
Option 2.
[box] The later of age [blank] (not to exceed 65) or [blank] (not to exceed
10th) anniversary of the participation commencement date. The participation
commencement date is the first day of the first Plan Year in which the
Participant became a Covered Employee.
SECTION 8.
HOURS REQUIRED
(Complete Part A and B)
Part A.
[blank] Hours of Service (no more than 1,000) shall be required to constitute a
Year of Vesting Service or Year of Eligibility Service.
Part B.
[blank] Hours of Service (no more than 500) must be exceeded to avoid a Break in
Service or One Year Break in Service.
SECTION 9.
LIMITATION ON ALLOCATIONS--More Than One Plan
(Complete if Applicable)
If you maintain or ever maintained another qualified plan (other than paired
Plan No. 001) in which any Participant in this Plan is (or was) a Participant or
could possibly become a Participant, you must complete this section.
Part A.
If the Participant is covered under another qualified defined contribution plan
maintained by the Employer, other than a master or prototype plan:
1. [box] The provisions of subsections (B)(1) through (B)(6) of Section 4.05 of
the Plan will apply as if the other plan were a master or prototype plan.
2. [box] Other method. (Provide the method under which the plans will limit
total annual additions to the maximum permissible amount, and will properly
reduce any excess amounts, in a manner that precludes Employer discretion.)
[blank]
Part B.
If the Participant is or has ever been a participant in a defined benefit plan
maintained by the Employer, the Employer will provide below the language which
will satisfy the 1.0 limitation of Section 415(e) of the Code.
Such language must preclude Employer discretion. (Complete)
[blank]
Part C.
The limitation year is the following 12-consecutive month period:
[blank]
SECTION 10.
ADDITIONAL PLANS
An Employer who has ever maintained or who later adopts any plan (including,
after December 31, 1985, a welfare benefit fund as defined in Section 419(e) of
the Code, which provides post-retirement medical benefits allocated to separate
accounts for key employees as defined in Section 419A(d)(3) of the Code) in
addition to this Plan (other than paired plan No. 001) may not rely on the
opinion letter issued by the National Office of the Internal Revenue Service as
evidence that this Plan is qualified under Section 401 of the Internal Revenue
Code. If the Employer who adopts or maintains multiple plans wishes to obtain
reliance that his or her plan(s) are qualified, application for a determination
letter should be made to the appropriate Key District Director of Internal
Revenue.
This Adoption Agreement may be used only in conjunction with Basic Plan Document
No. 01.
SECTION 11.
SIGNATURES AND OTHER INFORMATION
(Complete Part A, B and E, and either Part C or D)
Date Executed [blank]
Part A.
Employer Information
Name of Business [blank]
Address [blank]
Phone [blank]
Nature of Business [blank]
Income Tax Year Ends [blank (month) (day)]
Federal Tax Identification Number [blank]
Part B.
Employer Signature
Signature [blank]
Witness [blank]
(Type Name) [blank]
Part C.
Financial Institution Trustee or Custodian
Name Institution Trustee or Custodian [blank]
Signature [blank]
Witness [blank]
(Type Name) [blank]
Part D.
Individual Trustees
Signature [blank]
Witness [blank]
(Type Name) [blank]
Signature [blank]
Witness [blank]
(Type Name) [blank]
Part E.
Plan Sponsor
Name of Sponsor [blank]
Address [blank]
Note: The Plan Sponsor recommends that advice be obtained from a qualified
attorney and tax advisor regarding completion of this Agreement prior to its
execution.
FEATURES OF THE SECURA SEP PLAN
WHAT IS A SEP?
A Simplified Employee Pension (SEP) Plan is a type of retirement plan which
provides you, the employer, an important employee benefit for your employees
(including you if you perform services for the business) and also gives you tax
deductions for contributions you make under the Plan. Amounts contributed by you
for your employees under the SEP are deposited into your employees' IRAs. By
having a SEP, you may be more successful in retaining and attracting the
talented personnel you need to run your business.
THE SECURA SEP PLAN
By making the SECURA Plan available to you, we are offering you a choice between
a "Basic" SEP Plan (under which traditional discretionary contributions may be
made) and a "Salary Deferral" SEP Plan (under which salary deferral
contributions are made and discretionary contributions may be made), all under
just one plan document. However, only certain employers are eligible to have the
Salary Deferral SEP Plan (see the "Salary Deferral Option" under "Optional
Features" below.)
STANDARD FEATURES
Eligibility Requirements: Not all employees have to be covered under the SECURA
SEP Plan. At your option, you can exclude employees who have not reached age 21,
those who have not worked for you during at least 3 of the immediately preceding
5 years and those who earn less than $300 per year. In addition, you may exclude
employees who are non-resident aliens and certain union members.
Contribution limits: With or without the salary deferral option, the maximum
contribution which can be made for any employee is 15% of compensation or
$30,000, whichever is less.
Plan Year: The Plan is maintained over the same year as the employer's tax year
(calendar or fiscal year).
Place of Deposit: All contributions made under the Plan must be deposited into a
SEP-IRA with the financial institution which sponsors the Plan.
OPTIONAL FEATURES
Integration: The Plan allows for integration of discretionary contributions with
Social Security under the new "permitted disparity" rules. The integration level
under the Plan is the current year's Social Security taxable wage base.
Salary Deferral Option:
- - Employees can elect to defer up to $7,000 of their annual salary,
- - The amount of salary deferred is not taxed to the employee but is included in
wages for social security and federal unemployment tax purposes,
- - The employer gets a deduction for employee salary deferrals (salary
deferrals are considered employer contributions), and
- - Employees can change their salary deferral elections twice a year.
- - The salary deferral option is available for employers:
- With no more than 25 eligible employees at any time during the preceding
year,
- With at least 50% of all eligible employees electing to make salary
deferrals,
- Which are not state or local governments, state or local government
agencies or tax-exempt organizations, and
- Which do not currently have a 401(k) plan or purchase tax-sheltered
annuities for employees under salary deferral agreements.
SEE YOUR ADVISORS
If you are interested in establishing the SECURA SEP Plan, consult your tax and
legal advisors for selecting the type of plan and plan features which best suit
your business needs. Once you are ready to adopt the Plan, SECURA will be happy
to assist you in completing the necessary papers.
ADOPTION AGREEMENT
SECTION 1
PLAN NAME
The Plan shall be known as the [blank] Simplified Employee Pension Plan.
SECTION 2
INITIAL ADOPTION OR REPLACEMENT OF PLAN (Complete either Option A or Option B)
Option A.
[box] This is the initial adoption of a Simplified Employee Pension Plan by the
Employer and its Effective Date is [blank], 19[blank]; or
Option B.
[box] This is a replacement of an existing Simplified Employee Pension Plan by
amendment and restatement.
The existing plan was initially adopted on [blank], 19[blank], and initially
effective on [blank], 19[blank].
The Effective Date of this amendment and restatement is [blank], 19[blank].
SECTION 3
EMPLOYER CONTRIBUTIONS AND ALLOCATION
Part A.
Discretionary Contributions (Choose Option 1 or Option 2):
Option 1.
[box] Non-Integrated Formula (as described on the reverse side of this
Agreement)
Option 2.
[box] Integrated Formula (as described on the reverse side of this Agreement)
Base Contribution Percentage--An amount equal to [blank] (at least 3) percent of
the Participant's Unreduced Compensation which does not exceed the taxable wage
base (as determined under Section 230 of the Social Security Act).
Excess Contribution Percentage--An amount equal to [blank] percent of the
Participant's Unreduced Compensation (not in excess of $200,000) which exceeds
the taxable wage base.
Part B.
Retirement Savings Contributions (Complete this Part only if a salary deferral
arrangement is desired).
A Contributing Participant may elect to defer from [blank]% to [blank]% of his
Unreduced Compensation in increments of one percent.
SECTION 4
ELIGIBILITY REQUIREMENTS (Complete Part A, B and C)
Part A.
Age Requirement (as described on the reverse side of this Agreement) [blank] (no
more than 21) years of age.
Part B.
Service Requirement (as described on the reverse side of this Agreement) [blank]
(no more than 3) of the immediately preceding 5 years of Service.
Part C.
Class of Employees Not Eligible to Participate (as described on the reverse side
of this Agreement) The following classes of Employees (Excludible Employees)
shall not be eligible to participate as a Participant or as a Contributing
Participant (if checked):
[box] Members of a Union/Non-resident Aliens
[box] Employees with Compensation Under $300
SECTION 5
SIGNATURES AND OTHER INFORMATION
Name of Employer [blank]
Address [blank]
Federal Tax I.D. Number [blank]
Income Tax Year End [blank] (month) (day)
Employer's Signature [blank]
Date Executed [blank]
Witness [blank]
Name of Plan Sponsor [blank]
Plan of Sponsor's Signature [blank]
Date Executed [blank]
Witness [blank]
Note to Employer: You should obtain the advice of a qualified attorney and tax
advisor regarding completion of this Agreement before signing it.
Discretionary Contributions
The Employer may, in its sole discretion, contribute to the IRA of each
Participant each Plan Year such amount as its managing body shall determine.
These contributions shall be designated as Discretionary Contributions.
Non-Integrated Formula
The Discretionary Contribution for each Plan Year shall be allocated to the IRA
of each Participant in the same proportion as such Participant's Unreduced
Compensation (not in excess of $200,000) bears to all Participants' Unreduced
Compensation for such year. The amount allocated to each Participant's IRA shall
be limited to the lesser of 15 percent of the first $200,000 of the
Participant's Unreduced Compensation or $30,000.
Integrated Formula
The Discretionary Contribution for each Plan Year shall be the sum of an amount
equal to the base contribution percentage plus an amount equal to the excess
contribution percentage. The amount allocated to each Participant's IRA shall be
limited to the lesser of 15 percent of the first $200,000 of the Participant's
Unreduced Compensation or $30,000.
Limit on Excess Contribution Percentage - Notwithstanding the excess
contribution percentage selected on the front side of this Agreement,
the excess contribution percentage shall not exceed the lesser of: 1)
the difference between such percentage and the base contribution
percentage or 2) 5.7 percent (or, if greater, the OASDI Rate).
Retirement Savings Contributions
Limit on Retirement Savings Contributions
Notwithstanding the range of the Retirement Savings Contribution percentage
selected on the front side of this Agreement, the Employer shall not allocate
Retirement Savings Contributions to the IRA of any Contributing Participant for
any calendar year in excess of $7,000.
ELIGIBILITY REQUIREMENTS
Age Requirement
An Employee will be eligible to become a Participant (and/or a Contributing
Participant if the Employer has adopted a salary deferral arrangement) after
attaining the age specified on the front side of this Agreement.
Service Requirement
An Employee will be eligible to become a Participant (and/or a Contributing
Participant if the Employer has adopted a salary deferral arrangement) after
having performed Service (as defined under Section 2 of the Plan) for the
Employer during the time period specified on the front side of this Agreement.
Class of Employees Not Eligible to Participate
Members of a Union/Non-Resident Aliens
Those employees included in a unit of Employees covered by the terms of a
collective bargaining agreement between Employee representatives (the term
"Employee representatives" does not include any organization more than half of
whose members are Employees who are owners, officers or executives of the
Employer) and the Employer under which retirement benefits were the subject of
good faith bargaining unless the agreement provides that such Employees are to
be included in the Plan, and except those Employees who are non-resident aliens
and who received no earned income from the Employer which constitutes income
from sources within the United States.
Employees with Compensation Under $300
Those Employees who did not earn at least $300 of Compensation from the Employer
during the Plan Year.
SEP SUMMARY FOR EMPLOYEES
ESTABLISHMENT OF SEP PLAN
Your employer has adopted a type of employee benefit plan known as a Simplified
Employee Pension (SEP) Plan. In order to become a participant in the Plan, you
must meet the Plan's eligibility requirements specified below. Once you become a
participant, you are entitled to receive a certain share of the amounts your
employer contributes under the Plan and/or make contributions to the Plan out of
your salary. All contributions will be deposited into a SEP IRA for you.
Contributions made under the Plan for you are yours to keep. These features of
the Plan are explained further in the Employee Information Booklet.
The actual Plan is a complex legal document that has been written in a manner
required by the Internal Revenue Service. This document is called a SEP Summary.
It is designated to explain and summarize the important features of the Plan. If
you have any questions or need additional information about the Plan, consult
*Name of Employer Representative)
You may also examine the Plan itself at a reasonable time by making arrangements
with the above mentioned representative of your employer.
TYPE OF PLAN
Check One
[ ]Basic SEP Plan: Your employer has adopted a "Basic" SEP Plan. Under this type
of SEP Plan, your employer may (but is not required to) make discretionary
contributions on your behalf. Your right to receive and the amount of the
discretionary contribution will be determined under the "Eligibility
Requirements" and "Contribution Formula" sections below.
[ ]Salary Deferral SEP Plan: Your employer has adopted a "Salary Deferral" SEP
Plan. Under this type of SEP Plan, your employer may (but is not required to)
make discretionary contributions on your behalf. In addition, if you agree to a
payroll deduction, your employer will deposit the percentage of your salary you
specify to your SEP-IRA. These types of contributions are called retirement
savings contributions. Your right to receive and the amount of the discretionary
or retirement savings contribution will be determined under the "Eligibility
Requirements" and "Contribution Formula" sections below.
ELIGIBILITY REQUIREMENTS
EMPLOYER CONTRIBUTIONS: Discretionary contributions and, if a Salary Deferral
SEP Plan has been adopted, retirement savings contributions, may be made by your
employer for you if you are an "eligible" employee and if you have met the age
and service requirements set forth below.
ELIGIBLE EMPLOYEES: Under the SEP Plan, all employees can participate except
the classifications of employees checked below:
[ ] Those employees covered by the terms of a collective bargaining
agreement (a union agreement) and those employees who are non-resident
aliens.
[ ] Those employees who did not earn at least $300 from the employer during
the year.
AGE REQUIREMENT: You must be at least _______ years old.
SERVICE REQUIREMENT: You must have worked for your employer in at least _____ of
the immediately preceding 5 years.
CONTRIBUTION FORMULA
DISCRETIONARY CONTRIBUTIONS: (check one)
[ ] Non-Integrated Formula:: See Question 2 of your Employee Information
Booklet.
[ ] Integrated Formula:: See Questions 21 and 22 of your Employee
Information Booklet. Discretionary Contribution for the year equals an
amount equal to the Base Contribution Percentage of ____ % plus an
amount equal to the Excess Contribution Percentage of ___%.
RETIREMENT SAVINGS CONTRIBUTIONS: (for Salary Deferral SEP Plans only) See
Questions 4, 5 and 6 of your Employee Information Booklet. You can set aside
from ___% to ___% (in increments of 1%) of your salary or earnings from your
employer to your SEP-IRA but the dollar amount set aside for any calendar year
cannot exceed $7,000.
Under the SEP Plan your employer has adopted, you must maintain your SEP-IRA at
the following institution subject to the following terms:
SEP-IRA WITH PLAN SPONSOR
Name and Address of Institution __________________________________
Investment Options
Government Bond Fund $___________ Special Equity Fund $________
Fixed Income Fund $___________ First American Money Fund $________
Stock Fund $___________ Other $________
Please refer to the Disclosure Statement and other documentation given to you by
the above-named Institution for the other terms and conditions which apply to
your SEP-IRA.
This Discrimination Test Worksheet is to be used by an Employer which has
adopted a Salary Deferral SEP Plan to determine whether Retirement Savings
Contributions (salary deferrals) made under the P{lan comply with Section
408(k)(6) of the Internal Revenue Code. This testing procedure should be
performed when the Plan is initially set up (use estimated figures), at each
Enrollment Date (use estimated or actual figures) and at the end of each Plan
Year (use actual figures). If the test results reveal that the
anti-discrimination rules have been violated for a Plan Year, then follow the
procedure in Section 4.01(B)(4) of the Plan. This worksheet is furnished as a
service to each adopting Employer of the SECURA Simplified Employee Pension Plan
by the Plan Sponsor. The Plan Sponsor is not obligated to conduct this
discrimination test on behalf of adopting Employers nor it is obligated to amend
this worksheet to incorporate changes to the anti-discrimination rules brought
about by changes in the law.
Column a List all employees who are eligible to become Contributing Participants
(under Section 4 of the Adoption Agreement) and who are not Highly Compensated
Employees as defined below under Column A.
Column b List the Retirement Savings Contributions (salary deferrals) actually
made by each Non-Highly Compensated Employee for the Plan Year.
Column c List the unreduced compensation (compensation paid during the Plan Year
plus retirement Savings Contributions made for the plan Year) for each
Non-Highly Compensated Employee.
Column d For each Non-Highly Compensated Employee, divide the amount in Column b
by the amount in Column c and list the quotient (expressed as a percentage)
here.
Column A List all employees who are eligible to become Contributing Participants
(under Section 4 of the Adoption Agreement) and who are Highly Compensated
Employees. An employee is a Highly Compensated Employee if, at any time during
the year of the preceding year, he or she:
1. Was a five-percent owner of the Employer;
2. Earned more that $75,000 in annual compensation from the Employer;
3. Earned more that $50,000 in annual compensation from the Employer and was a
member of the top-paid group of employees (the top 20% of employees by pay
during the same year); or
4. Was an officer of the Employer and received compensation greater than 150%
of the dollar limit on annual additions to a defined contribution plan
(currently $45,000).
(NOTE: Certain family members of Highly Compensated Employee are not considered
a separate employee and their compensation must be added to the Highly
Compensated Employee's compensation. See IRC at 414(q)(6)).
Column B List the Retirement Savings Contributions (salary deferrals) actually
made by each Highly Compensated Employee for the Plan Year.
Column C List the unreduced compensation (compensation paid during the Plan Year
plus Retirement Savings Contributions made the Plan Year) for each Highly
Compensated Employee.
Column D For each Highly Compensated Employee, divide the amount in Column B by
the amount in Column C and list the quotient (expressed as a percentage) here.
Column E Calculate the Deferral Percentage limit which will apply to each Highly
Compensated Employee by multiplying the Average Deferral Percentage (ADP) for
the Non-Highly Compensated Employees by 1.25.
Column F Indicate whether each Highly Compensated Employee has satisfied the
Average Deferral Percentage Test by checking the appropriate box.
ELIGIBILITY FORM: PARTNERSHIP
The following questions are designated to help the corporation, along with its
attorney and tax advisor, determine if it is eligible to adopt the Universal SEP
Plan. Answer the following questions:
REQUIREMENTS YES NO
[ ] [ ] 1. Under the terms of the partnership agreement,
is the establishment of this Plan an action
of the partnership (i.e., Have the requisite
number of partners agreed to the
establishment of this Plan)?
[ ] [ ] 2. Do you file a Form 1065 to report the
business' taxable income?
[ ] [ ] 3. Has the partnership ever maintained a defined
benefit pension plan which is now terminated?
If you answered YES to questions 1 & 2 and answered NO to question 3, proceed by
answering the following questions 4 through 8.
YES NO
[ ] [ ] 4. Does any partner (with a capital or profits
interest of 10% or more) or a group of 2 or
more partners owe the entire interest in a
sole proprietorship?
[ ] [ ] 5. Does any partner (with a capital or profits
interest of 10% or more) or a group of 2 or
more partners own, directly or indirectly,
more than a 50% capital or profits interest in
a partnership (other than this partnership)?
[ ] [ ] 6. Are you a membeer of a controlled group of
trades or businesses (whether or not
incorporated) within the meaning of IRC
Section 414(c)?
[ ] [ ] 7. Is the paartnership a member of an affiliated
service group within the meaning of IRC
Section 414(m)?
[ ] [ ] 8. Doses the partnership use the services of
leased employees within the meaning of IRC
Section 414(n)?
If the corporation answered any of the above questions 4, 5 or 6 YES, it may
have to include the leased employees and/or employees of the other business(es)
in this Plan or a comparable Plan. Consult a tax advisor to determine what
additional action, if any, the corporation must take.
ADDITIONAL If the corporation wants adopt a Salary Deferral SEP (within the
meaning of IRC Section 408(k)(6), answer the following questions:
REQUIREMENTS
FOR SALARY
DEFERRAL SEPS YES NO
[ ] [ ] 9. Did you have more than 25 employees who were
eligible to participate (or would have been
eligible to participate if a SEP had been
maintained) at any time during the preceding
year?
[ ] [ ] 10. Do you expect that fewer than 1/2 of all its
eligible employees will elect to make salary
deferrals?
[ ] [ ] 11. Do you currently maintain a 401(k) plan or a
403(b) annuity program with a salary deferral
arrangement?
[ ] [ ] 12. Are you a branch or agency of a state or local
government or a tax-exempt organization?
If any of the above quesstions 9 through 12 were answered YES, you are not
presently eligible to adopt this Salary Deferral SEP Plan.
SIGNATURE IMPORTANT: Please read before signing
I certify that: 1. I am authorized to estaablish the SEP Plan of the Plan
Sponsor on behalf of the partnership.
2. The partnership is eligible to establish this Plan.
3. In determining its eligibility to adopt this Plan, the
partnership has relied solely upon the advice of its own
advisors.
4. The partnership agrees not to hold the Plan Sponsor
responsible for any income tax liabilities it may suffer as
a result of being found ineligible to establish this Plan.
DATE EXECUTED
SIGNATURE OF EMPLOYER
TYPE NAME
ELIGIBILITY FORM: SOLE PROPRIETORSHIP
The following questions are designated to help you, the employer, along with
your attorney and tax advisor, determine if you are eligible to adopt the
Universal SEP Plan. Answer the following questions:
REQUIREMENTS YES NO
[ ] [ ] 1. Are you a self-employed individual? (Do you
operate a business or practice a profession as
a sole proprietorship (i.e., unincorporated
business)?
[ ] [ ] 2. Do you have net earnings from self-employment?
[ ] [ ] 3. Do you file a Schedule C or Schedule F with
your federal income tax return (Form 1040) to
reprot net earnings from your business?
[ ] [ ] 4. Do you file a Schedule SE with your federal
income tax return to report the self-
employment tax you owe?
[ ] [ ] 5. Do you render personal services to your
business and are those service a maaterial
income-producing factor?
[ ] [ ] 6. Are your earnings from self-employment derived
from the business for which this SEP Plan is
established?
[ ] [ ] 7. Has your sole proprietorship ever maintained a
defined benefit pension plan which is now
terminated?
Each of the above questions 1 through 6 must be answered YES and question 7 must
be answered NO to amke you eligible to adopt this Plan. Then proceed by
answering the following questions 8 through 10.
YES NO
[ ] [ ] 8. Is the sole proprietorship a member of a
controlled group of businesses (whether or not
incorporaated) within the meaning of IRC
SSection 414(c)?
[ ] [ ] 9. Is the sole proprietorship a member of an
affiliaated service group within the meaning
of IRC Section 414(m)?
[ ] [ ] 10. Does the sole proprietorship use the services
of leased employees within the meaning of IRC
Secction 414(n)?
If the corporation answered any of the above questions 4, 5 or 6 YES, it may
have to include the leased employees and/or employees of the other business(es)
in this Plan or a comparable Plan. Consult a tax advisor to determine what
additional action, if any, the corporation must take.
ADDITIONAL If you want to adopt a Salary Deferral SEP (within the meaning of IRC
Section 408(k)(6), answer the following questions:
REQUIREMENTS
FOR SALARY
DEFERRAL SEPS YES NO
[ ] [ ] 11. Did you have more than 25 employees who were
eligible to participate (or would have been
eligible to participate if a SEP had been
maintained) at any time during the preceding
year?
[ ] [ ] 12. Do you expect that fewer than 1/2 of all its
eligible employees will elect to make salary
deferrals?
[ ] [ ] 13. Do you currently maintain a 401(k) plan or a
403(b) annuity program with a salary deferral
arrangement?
[ ] [ ] 14. Are you a branch or agency of a state or local
government or a tax-exempt organization?
If any of the above quesstions 11 through 14 were answered YES, you are not
presently eligible to adopt this Salary Deferral SEP Plan.
SIGNATURE IMPORTANT: Please read before signing
I certify that: 1. I am eligible to establish SEP Plan or the Plan Sponsor.
2. In determining my eligibility to adopt this Plan, I
relied solely upon the advice of my own advisors.
3. I agree not to hold the Plan Sponsor responsible for any
income tax liabilities it may suffer as a result of being
found ineligible to establish this Plan.
DATE EXECUTED
SIGNATURE OF EMPLOYER
TYPE NAME
ELIGIBILITY FORM: CORPORATION
The following questions are designated to help the corporation, along with its
attorney and tax advisor, determine if it is eligible to adopt the Universal SEP
Plan. Answer the following questions:
REQUIREMENTS YES NO
[ ] [ ] 1. Have the Board of Directors of the corporation
adoped a resolution to establish this Plan?
[ ] [ ] 2. Are you authorized to establish this Plan on
behalf of the corporation?
[ ] [ ] 3. Has the corporation ever maintained a defined
benefit pension plan which is now terminated?
If you answered YES to questions 1 & 2 and answered NO to question 3, proceed by
answering the following questions 4, 5 and 6.
YES NO
[ ] [ ] 4. Is the corporation a member of a controlled
group of corporations or businesses within the
meaning of IRC Section 414(b) ro 414(c)?
[ ] [ ] 5. Is the coporation a member of an affiliated
service group within the meaning of IRC
Section 414(m)?
[ ] [ ] 6. Does the corporation use the services leased
employees within the meaning of IRC
Section 414(n)?
If the corporation answered any of the above questions 4, 5 or 6 YES, it may
have to include the leased employees and/or employees of the other business(es)
in this Plan or a comparable Plan. Consult a tax advisor to determine what
additional action, if any, the corporation must take.
ADDITIONAL If the corporation wants adopt a Salary Deferral SEP (within the
meaning of IRC Section 408(k)(6), answer the following questions:
REQUIREMENTS
FOR SALARY
DEFERRAL SEPS YES NO
[ ] [ ] 7. Did it have more than 25 employees who were
eligible to participate (or would have been
eligible to participate if a SEP had been
maintained) at any time during the preceding
year?
[ ] [ ] 8. Does it expect that fewer than 1/2 of all its
eligible employees will elect to make salary
deferrals?
[ ] [ ] 9. Does it currently maintain a 401(k) plan or a
403(b) annuity program with a salary deferral
arrangement?
[ ] [ ] 10. Is the corporation owned by a state or local
government or is it a tax-exempt organization?
If any of the above quesstions 7 through 10 were answered YES, the corporation
is not presently eligible to adopt this Salary Deferral SEP Plan.
SIGNATURE IMPORTANT: Please read before signing
I certify that: 1. I am authorized to estaablish the SEP Plan of the Plan
Sponsor on behalf of the corporation.
2. The corporation is eligible to establish this Plan.
3. In determining its eligibility to adopt this Plan, the
corporation has relied solely upon the advice of its own
advisors.
4. The corporation agrees not to hold the Plan Sponsor
responsible for any income tax liabilities it may suffer as
a result of being found ineligible to establish this Plan.
DATE EXECUTED
TYPE NAME OF EMPLOYER
SIGNATURE
TYPE NAME
RETIREMENT SAVINGS AGREEMENT (for Salary Deferral SEPs only
IMPORTANT: Be sure to read all sections of this Retirement Savings Agreement
before signing it.
SECTION A GENERAL INFORMATION
EMPLOYER AND PLAN Name of Plan
INFORMATION Name of Employer
Address
City State Zip
EMPLOYEE Name Employee No.
INFORMATION Home Address SSN
City State Zip
SECTION B TERMS OF AGREEMENT - TO BE COMPLETED BY THE EMPLOYER
LIMITS ON RETIREMENT SAVINGS CONTRIBUTIONS Each employee who is eligible to
enroll as a Contributing Participant in this Simplified Employee Pension (SEP)
Plan may set aside any whole number percentage of his or her pay from %to % into
the Plan. The amounts set aside and contributed to the Plan are called
Retirement Savings Contributions.
CHANGING THIS AGREEMENT An employee may change the percentage of pay he or she
is setting aside into the Plan twice per year effective the first day of each
enrollment date (which dates are and ). Any employee who wishes to make
such a change must complete and sign a new Retirement Savings Agreement and give
it to the employer at least 30 days before the change is to become effective.
TERMINATING AGREEMENT An employee may, by giving at least 30 days written notice
to the employer, terminate this Retirement Savings Agreement as of the last day
preceding any enrollment date. After terminating this Agreement, an employee
cannot again enroll as a Contributing Participant until the first day of the
Plan's year following the year of termination.
EFFECTIVE DATE This Agreement will be effective for the pay period which begins.
SECTION C AUTHORIZATION
EMPLOYEE'S RETIREMENT SAVINGS CONTRIBUTIONS I, the undersigned employee, wish to
set aside, as Retirement Saving Contributions, the follow ing percentage of my
pay to my employer's SEP Plan by way of payroll deduction: %.
I agree that my pay will be reduced by the percentage I have indicated above,
and that this percentage of my pay will be contributed to the Plan. This
retirement Savings Agreement will continue to be effective while I am employed,
unless I change or terminate it as explained in Section B above. I acknowledge
that I have read this entire agreement, I understand it and I agree to its
terms.
SIGNATURES
Signature of Employee Authorized Signature for Employer
Date Title
Date
PROTOTYPE PLAN DOCUMENT
SECURA SEP PLAN
SECURA SIMPLIFIED EMPLOYEE PENSION PLAN
SECURA SEP PLAN
TABLE OF CONTENTS
SECTION ONE ESTABLISHMENT AND PURPOSE OF PLAN
1.01 Purpose 1
1.02 Intent to Qualify 1
1.03 Adoption 1
1.04 Who May Adopt 1
1.05 Use With IRA 1
SECTION TWO DEFINITIONS
2.01 Adoption Agreement 1
2.02 Beneficiary 1
2.03 Code 1
2.04 Compensation 1
2.05 Contributing Participant 1
2.06 Discretionary Contributions 1
2.07 Earned Income 1
2.08 Effective Date 1
2.09 Eligible Employer 1
2.10 Employee 1
2.11 Employer 1
2.12 Employer Contribution 1
2.13 Employer Contribution Limitation 2
2.14 Enrollment Date 2
2.15 Excludible Employees 2
2.16 Family Member 2
2.17 Highly Compensated Employee 2
2.18 IRA 2
2.19 Non-Highly Compensated Employee 2
2.20 Participant 2
2.21 Plan 2
2.22 Plan Administrator 2
2.23 Plan Sponsor 2
2.24 Plan Year 2
2.25 Predecessor Employer 2
2.26 Prior Plan 2
2.27 Retirement Savings Agreement 2
2.28 Retirement Savings Contributions 2
2.29 Self-Employed Individual 2
2.30 Service 2
2.31 Unreduced Compensation 2
SECTION THREE ELIGIBILITY AND PARTICIPATION
3.01 Eligibility Requirements 2
3.02 Admittance as a Participant. 2
3.03 Requirements to Enroll as a Contributing
Participant 2
3.04 Payroll Deduction of Contributions 3
3.05 Modification of Retirement Savings
Agreement 3
3.06 Withdrawal as Contributing Participant 3
3.07 Return as Contributing Participant after
Withdrawal 3
3.08 Determinations Under This Section. 3
3.09 Limitation Respecting Employment 3
SECTION FOUR CONTRIBUTIONS AND ALLOCATIONS
4.01 Employer Contributions 3
4.02 Limit on Employer Contributions. 4
4.03 Tax on Excess Employer Contributions 4
4.04 Vesting, Withdrawal Rights to
Contributions 4
4.05 Simplified Employer Reports. 4
SECTION FIVE ADMINISTRATION
5.01 Plan Administrator's Duties. 4
5.02 Interpretation 5
5.03 Expenses 5
5.04 Information From Employer. 5
SECTION SIX CLAIMS PROCEDURE
6.01 Filing a Claim for Contributions 5
6.02 Denial of Claim 5
6.03 Remedies Available 5
SECTION SEVEN AMENDMENT OR TERMINATION OF PLAN
7.01 Amendment by Employer 5
7.02 Amendment by Plan Sponsor. 5
7.03 Limitations on Power to Amend. 5
7.04 Termination 5
7.05 Notice of Amendment, Termination 5
SECTION ONE ESTABLISHMENT AND PURPOSE OF PLAN
1.01 PURPOSE The purpose of this Plan is to provide, in accordance with its
provisions, a Simplified Employee Pension Plan providing benefits upon
retirement for the individuals who are eligible to participate
hereunder.
1.02 INTENT TO QUALIFY It is the intent of the Employer that this Plan shall
be for the exclusive benefit of its Employees and shall qualify for
approval under section 408(k) of the Internal Revenue Code, as amended
from time to time (or corresponding provisions of any subsequent
Federal law at that time in effect). In case of any ambiguity, it shall
be interpreted to accomplish such result. It is further intended that
it comply with the provisions of the Employee Retirement Income
Security Act of 1974 (ERISA) as amended from time to time.
1.03 ADOPTION The Employer adopts this Plan by completing and signing an
Adoption Agreement.
1.04 WHO MAY ADOPT An employer who has ever maintained a defined benefit
plan which is now terminated may not participate in this prototype
Simplified Employee Pension plan. If, subsequent to adopting this plan,
any defined benefit plan of the Employer terminates, the Employer will
no longer participate in this prototype plan and will be considered to
have an individually designed plan.
1.05 USE WITH IRA This agreement must be used with an Internal Revenue
Service model IRA (Form 5305 or Form 5305-A) or an IRA approved master
or prototype IRA.
SECTION TWO DEFINITIONS
2.01 ADOPTION AGREEMENT Means the document executed by the Employer through
which it adopts the Plan and thereby agrees to be bound by all terms
and conditions of the Plan.
2.02 BENEFICIARY Means any person, trust or other recipient named by a
Participant or a Contributing Participant in his IRA to receive any
benefits which may be due under this Plan after his death provided such
person, trust or other recipient survives the Participant or
Contributing Participant; and if there be no such designation, or the
designated Beneficiary has predeceased the Participant or Contributing
Participant, then to the Participant's or Contributing Participant's
estate.
2.03 CODE Means the Internal Revenue Code of 1986 as amended.
2.04 COMPENSATION Means the total wages, salaries, professional fees,
commissions, tips, bonuses and any other remuneration received from the
Employer during the plan year for personal service actually rendered,
but does not include amounts received as earnings or profits from
property such as interest or dividend income.
2.05 CONTRIBUTING PARTICIPANT Means a person who has met the participation
requirements of Section 3.01(B) and has not ceased to be a Contributing
Participant under Section 3.06 or any other sections of the Plan and
who is or may become eligible to received a Retirement Savings
Contribution.
2.06 DISCRETIONARY CONTRIBUTIONS Are contributions made (but not required to
be made) by the Employer on behalf of a Participant pursuant to Section
4.01(A).
2.07 EARNED INCOME Means the net earnings from self-employment in the trade
or business with respect to which the Plan is established, for which
personal services of the individual are a material income-producing
factor. Net earnings will be determined without regard to items not
included in gross income and the deductions allocable to such items.
Net earnings are reduced by contributions by the Employer to a
qualified plan or to a Simplified Employee Pension Plan to the extent
deductible under Section 404 of the Code.
2.08 EFFECTIVE DATE Means the date the Plan becomes effective as indicated
in the Adoption Agreement.
2.09 ELIGIBLE EMPLOYER Means an Employer which has selected the salary
deferral arrangement option of Section 3 of the Adoption Agreement
and which:
A. Has no more than 25 Employees who were eligible to participate under
Section 3.01(A) (or would have been eligible to participate if this
plan had been maintained) at any time during the preceding Plan Year,
and
B. Has at least 50 percent of all Employees who are eligible to
participate under Section 3.01(A) electing, pursuant to a Retirement
Savings Agreement, to have Retirement Savings Contributions made to
their IRA in lieu of cash compensation, and
C. Is not a State or local government or political subdivision thereof, or
any agency or instrumentality thereof, or which is an organization
exempt from tax under Subtitle A of the Code, and
D. Does not maintain a Code section 401(k) plan with a cash or deferred
arrangement, and
E. Does not purchase Code section 403(b) annuity contracts under salary
reduction agreements (within the meaning of Code section
3121(a)(5)(D)).
2.10 EMPLOYEE Means any person who is a natural person employed by the
Employer as a common law employee and if the Employer is a sole
proprietorship or partnership, any Self-Employed Individual who
performs services with respect to the trade or business of the
Employer. Further, any employee of any other employer required to be
aggregated under Section 414(b), (c) or (m) of the Code and any leased
employee within the meaning of Code Section 414(a)(2) shall also be
considered an Employee.
2.11 EMPLOYER Means any corporation, partnership or sole proprietorship
named in the Adoption Agreement and any successor who by merger,
consolidation, purchase or otherwise assumes the obligations of the
Plan. A partnership is considered to be the Employer of each of the
partners and a sole proprietorship is considered to be the Employer of
a sole proprietor.
2.12 EMPLOYER CONTRIBUTION Means a Retirement Savings or Discretionary
Contribution.
2.13 EMPLOYER CONTRIBUTION LIMITATION Means, with respect to Employer
Contributions made on behalf of an Employee, the issuer of:
A. 15 percent of Unreduced Compensation, or
B. The limitation in effect under Code Section 415(c)(1)(A), as adjusted
under Code 415(d)(1)(A).
2.14 ENROLLMENT DATE Means the first day of a Plan Year or, if such day has
passed, the first day of the seventh month of a Plan Year.
2.15 EXCLUDIBLE EMPLOYEES Means Employees who are excluded from
participating in the Plan under Section 4 of the Adoption Agreement.
2.16 FAMILY MEMBER Means an individual described in Section 414(q)(6)(B) of
the Code.
2.17 HIGHLY COMPENSATED EMPLOYEE Means a Participant described in Section
414(q) of the Code.
2.18 IRA Means the Individual Retirement Account of a Participant or
Contributing Participant maintained with the Plan Sponsor which meets
the requirements of Section 408 of the Code.
2.19 NON-HIGHLY COMPENSATED EMPLOYEE Means an Employee of the Employer who
is neither a Highly Compensated Employee nor a Family Member.
2.20 PARTICIPANT Means any Employee who has met the participation
requirements of Section 3.01(A) and who is or may become eligible to
receive a Discretionary Contribution.
2.21 PLAN Means this plan document plus the corresponding Adoption Agreement
as completed and signed by the Employer. The Plan shall have the name
selected in the Adoption Agreement.
2.22 PLAN ADMINISTRATOR Means the Employer.
2.23 PLAN SPONSOR Means the bank, federally insured credit union, savings
and loan association that qualifies as a bank or regulated investment
company specified in Section 5 or the Adoption Agreement.
2.24 PLAN YEAR Means the Employer's taxable year.
2.25 PREDECESSOR EMPLOYER Means the corporation, partnership or sole
proprietorship which maintained a Prior Plan.
2.26 PRIOR PLAN Means a plan which was amended or continued by adoption of
this Plan, as indicated in Section 2 of the Adoption Agreement.
2.27 RETIREMENT SAVINGS AGREEMENT Means an agreement, on a form provided by
the Plan Administrator, pursuant to which a Contributing Participant
may elect to have the Unreduced Compensation payable to him reduced and
paid as Retirement Savings Contributions to his IRA by the Employer.
2.28 RETIREMENT SAVINGS CONTRIBUTIONS Are contributions made by the Employer
on behalf of a Contributing Participant pursuant to Section 4.01(B).
2.29 SELF-EMPLOYED INDIVIDUAL Means an individual who has Earned Income for
a Plan Year from the trade or business for which the Plan is
established; also, an individual who would have had Earned Income but
for the fact that the trade or business had no net profits for the Plan
Year.
2.30 SERVICE Means any work performed by an Employee for the Employer or any
Predecessor Employer, for any period of time, however short.
2.31 UNREDUCED COMPENSATION Means the sum of an Employee's Compensation and
his Retirement Savings Contributions (other than any included in
Compensation).
SECTION THREE ELIGIBILITY AND PARTICIPATION
3.01 ELIGIBILITY REQUIREMENTS
A. Participant. Except for Excludible Employees, each Employee of the
Employer who fulfills the eligibility requirements specified in Section
4 of the Adoption Agreement shall, as a condition for further
employment, become a Participant.
B. Contributing Participant. If the Employer has adopted a salary deferral
arrangement, except for Excludible Employees, each Employee of the
Employer who fulfills the eligibility requirements specified in Section
4 of the Adoption Agreement may become a Contributing Participant.
3.02 ADMITTANCE AS A PARTICIPANT
A. Prior Plan. If this Plan is an amendment or continuation of a Prior
Plan, each Employee of the Employer who immediately before the
Effective Date was a participant in said Prior Plan shall be a
Participant in this plan as of said date.
B. Notification of Eligibility. The Plan Administrator shall notify each
Employee who becomes a Participant of his status as a Participant in
the Plan and of his duty to establish an IRA with the Plan Sponsor to
which Discretionary Contributions may be made.
C. Establishment of an IRA. If a Participant fails to establish an IRA for
whatever reason, the Plan Administrator may execute any necessary
documents to establish an IRA with the Plan Sponsor on behalf of the
Participant.
3.03 REQUIREMENTS TO ENROLL AS A CONTRIBUTING PARTICIPANT
A. Notification of Eligibility. The Plan Administrator shall notify each
Employee who becomes eligible to be a Contributing Participant under
the Plan and shall furnish him with a Retirement Savings Agreement and
advise him of the requirement to establish an IRA with the Plan Sponsor
to which Retirement Savings Contributions may be made.
B. Enrollment. Each eligible Employee may enroll as a Contributing
Participant on an Enrollment Date. An eligible Employee who wishes to
enroll as a Contributing Participant must establish an IRA and
complete, sign and file a Retirement Savings Agreement with the Plan
Administrator.
C. Initial Enrollment. Notwithstanding the times set forth in Section
3.03(B) as of which an eligible Employee may enroll as a Contributing
Participant, the Plan Administrator shall have the authority to
designate, in a nondiscriminatory manner, additional enrollment dates
during the 12 month period beginning on the Effective Date in order
that an orderly first enrollment might be completed.
D. Establishment of an IRA. If a Contributing Participant fails to
establish an IRA for whatever reason, the Plan Administrator may
execute any necessary documents to establish an IRA with the Plan
Sponsor on behalf of the Contributing Participant.
3.04 PAYROLL DEDUCTION OF CONTRIBUTIONS If the Plan Administrator determines
to allow payroll deduction of Retirement Savings Contributions, then
pursuant to rules established by the Plan Administrator, a Contributing
Participant may elect to have such contributions deducted from his
remuneration on a periodic basis.
3.05 MODIFICATION OF RETIREMENT SAVINGS AGREEMENT A Contributing Participant
may modify his Retirement Savings Agreement to increase or decrease
(within the limits placed on Retirement Savings Contributions in
Section 3 of the Adoption Agreement) the amount of his Unreduced
Compensation deferred into his IRA. Such modification may only be
prospectively made effective as of an Enrollment Date. A Contributing
Participant who desires to make such a modification shall complete,
sign and file a new Retirement Savings Agreement with the Plan
Administrator at least thirty days before the modification is to become
effective.
3.06 WITHDRAWAL AS CONTRIBUTING PARTICIPANT An Employee may withdraw as a
Contributing Participant as of the last day preceding any Enrollment
Date by revoking his authorization to the Employer to make Retirement
Savings Contributions on his behalf. An Employee who desires to
withdraw as a Contributing Participant shall give written notice of
withdrawal to the Plan Administrator at least thirty days (or such
lesser period of days as the Plan Administrator shall permit in an
uniform and nondiscriminatory manner) before the effective date of
withdrawal.
3.07 RETURN AS CONTRIBUTING PARTICIPANT AFTER WITHDRAWAL An Employee who has
withdrawn as a Contributing Participant under Section 3.06 may not
again become a Contributing Participant until the first day of the
first Plan Year following the effective date of his withdrawal as a
Contributing Participant.
3.08 DETERMINATIONS UNDER THIS SECTION The Plan Administrator shall
determine the eligibility of each Employee to be a Participant or
Contributing Participant. This determination shall be conclusive and
binding upon all persons except as otherwise provided herein or by law.
3.09 LIMITATION RESPECTING EMPLOYMENT Neither the fact of the establishment
of the Plan nor the fact that a common law Employee has become a
Participant or Contributing Participant shall give to that common law
Employee any right to continued employment; nor shall either fact limit
the right of the Employer to discharge or to deal otherwise with a
common law Employee without regard to the effect such treatment may
have upon the Employee's rights under the Plan.
SECTION FOUR CONTRIBUTIONS AND ALLOCATIONS
4.01 EMPLOYER CONTRIBUTIONS
A. Discretionary Contributions
1. Nondiscriminatory - Without regard to Excludible Employees.
Discretionary Contributions made by the Employer on behalf of all
Participants shall not discriminate in favor or any Highly Compensated
Employee.
2. Same Contribution Percentage - Except as provided in Section
4.01(A)(4), Discretionary Contributions made on behalf of each
Participant shall be the same percentage of each Participant's total
Unreduced Compensation up to a maximum compensation base of $200,000
(as adjusted pursuant to Code Section 408(k)(8)).
3. Maximum Amount - Discretionary Contributions made for a Plan Year on
behalf of any Participant shall not exceed the Employer Contribution
Limitation.
4. Integration With Social Security - If the Employer has selected Option
(2) of Section 3, Part A of the Adoption Agreement, Discretionary
Contributions shall not violate Section 4.01(A)(1) if such
contributions are made within the following permitted disparity:
(a) Permitted Disparity - The difference between the Excess Contribution
Percentage and the Base Contribution Percentage shall not exceed the
Base Contribution Percentage or 5.7 percent (or, if greater, the OASDI
Rate), whichever is less.
(b) Definitions - For purposes of this Section 4.01, the following terms
shall have the following meanings:
(i) Excess Contribution Percentage - shall mean the percentage of Unreduced
Compensation contributed under the Plan with respect to that portion of
each Participant's Unreduced Compensation in excess of the Integration
Level.
(ii) Base Contribution Percentage - shall mean the percentage of Unreduced
Compensation contributed under the Plan (but in no event less than 3
percent) with respect to that portion of each Participant's Unreduced
Compensation not in excess of the Integration Level.
(iii) OASDI Rate - shall mean the rate or tax for Old-Age, Survivors, and
Disability Insurance under Code Section 3111(a).
(iv) Integration Level - shall mean the taxable wage base determined under
Section 230 of the Social Security Act.
5. Allocation - Discretionary Contributions, if any, made on behalf of
Participants for a Plan Year shall be allocated and deposited to the
IRA of each Participant no later than the due date for filing the
Employer's tax return (including extensions).
B. Retirement Savings Contributions
1. Salary Deferral Arrangement - For each Plan Year the Employer is an
Eligible Employer, it shall contribute Retirement Savings Contributions
on behalf of all Contributing Participants. the amount of Retirement
Savings Contributions so contributed shall equal the total amount
subject to Retirement Savings Agreements.
2. Limits on Retirement Savings Contributions
(a) Maximum Amount - No Contributing Participant shall be permitted to have
Retirement Savings Contributions made under the Plan during any
calendar year in excess of $7,000 (as adjusted pursuant to Code Section
402(g)(5)).
(b) Highly Compensated Employees - The Deferral Percentage of each Highly
Compensated Employee who is eligible to be a Contributing Participant
shall not exceed the Average Deferral Percentage for all Non-Highly
Compensated Employees who are eligible to be Contributing Participants
times 1.25.
(c) Definitions - For purposes of this Section 4.01, the following terms
shall have the following meanings:
(i) Deferral Percentage - shall mean the ratio (expressed as a percentage),
of Retirement Savings Contributions of an Employee for the Plan Year to
that Employee's Unreduced Compensation for the Plan Year.
(ii) Average Deferral Percentage - shall mean the average (expressed as a
percentage) of the Deferral Percentages of the Non-Highly Compensated
Employees.
3. Distribution of Excess Retirement Savings Contributions - To the extent
that a Contributing Participant's Retirement Savings Contributions for
a calendar year exceeds the limit described in Section 4.01(B)(2)(a),
the Plan Administrator shall distribute such excess amount plus the
income earned thereon so the Contributing Participant no later than the
first April 15 following the close of such calendar year.
4. A Highly Compensated Employee who is a Contributing Participant may not
take any distribution (including a transfer or a rollover) of his
Retirement Savings Contributions until the Plan Administrator has
determined that the limit described in Section 4.01(B)(2)(b) has been
satisfied. To the extent that a Contributing Participant's Retirement
Savings Contributions for a Plan Year exceeds the limit described in
Section 4.01(B)(2)(b), the Plan Administrator shall distribute such
excess amount plus the income earned thereon to the Contributing
Participant no later than the close of the Plan Year following such
Plan year.
5. Determination of Income - For purposes of Section 4.01(B)(4) and
4.01(B)(5), the income earned on excess Retirement Savings
Contributions for a calendar year or on uneven Retirement Savings
Contributions for a Plan Year shall be determined by multiplying the
income earned on the IRA for such year by a fraction, the numerator of
which is the excess or the uneven Retirement Savings Contribution for
such year and the denominator of which is the total fair market value
of the IRA as of the close of such year.
6. Allocation - Retirement Savings Contributions made on behalf of
Contributing Participants for a Plan Year shall be allocated and
deposited to the IRA of each Contributing Participant by the Plan
Administrator as soon as is administratively feasible, but no later
than the due date for filing the Employer's tax return (including
extensions).
4.02 LIMIT ON EMPLOYER CONTRIBUTIONS For any Plan Year, the sum of
Discretionary contributions plus Retirement Savings Contributions made
on behalf of any Employee shall not exceed the Employer Contribution
Limitation.
4.03 TAX ON EXCESS EMPLOYER CONTRIBUTIONS If as of the close of a Plan Year
Employer Contributions for such Plan Year exceed the amount permitted
under Section 4.02, the Employer shall be subject to a 10 percent
excise tax under Code Section 4972.
4.04 VESTING, WITHDRAWAL RIGHTS TO CONTRIBUTIONS All Employer Contributions
made under the Plan on behalf of Employees shall be fully vested and
nonforfeitable at all times. Each employee shall have an unrestricted
right to withdraw at any time all or a portion of the contributions
made on his behalf. However, withdrawals taken are subject to the same
taxation and penalty provisions of the Code which are applicable to IRA
distributions.
4.05 SIMPLIFIED-EMPLOYER REPORTS The Employer shall furnish reports,
relating to contributions made under the Plan, in the time and manner
and containing the information prescribed by the Secretary of the
Treasury, to Participants and Contributing Participants. Such reports
shall be furnished at least annually and shall disclose the ________
the contribution made under the Plan to the Participant's or
Contributing Participant's IRA.
SECTION FIVE ADMINISTRATION
5.01 PLAN ADMINISTRATOR'S DUTIES The Plan Administrator shall be charged
with the duties of the general operation and administration of the
Plan, including, but not limited to, the following:
A. To determine all questions of interpretation or policy in a manner not
inconsistent with this Plan and such determination made in good faith
shall be conclusive and binding on all persons except as otherwise
provided herein or by law;
B. To determine all questions relating to the eligibility of Employees to
become or remain Participants or Contributing Participants hereunder;
C. To compete, certify and direct the Employer with respect to the amount
and type of Employer Contributions to which any Employee shall be
entitled hereunder;
D. To determine that Retirement Savings Contributions made on behalf of
Contributing Participants meet the discrimination test hereunder;
E. To maintain all the necessary records needed for the administration of
the Plan;
F. To be responsible for preparing and filing such disclosure and tax
forms as may be required from time to time by the Secretary of Labor or
the Secretary of the Treasury;
G. To furnish each Employee, Participant, Contributing Participant or
Beneficiary such information under such circumstances as may be
required by law;
H. To appoint and retain such persons as may be necessary to carry out the
functions of the Plan Administrator.
5.02 INTERPRETATION For purposes of Section 5.01(A), the headings of
sections are included solely for convenience of reference. If there is
any conflict between these headings and the rest of the Plan, the text
shall control. In addition, words used in the singular may be read in
the plural, words used in the plural may be read in the singular, and
the masculine gender shall include the feminine or the neuter.
5.03 EXPENSES All expenses of administration, including but not limited to
those involved in retaining necessary professional assistance, shall be
borne by the Employer. The Employer shall furnish the Plan
Administrator with such clerical and other assistance as the Plan
Administrator may need in the performance of its duties.
5.04 INFORMATION FROM EMPLOYER To enable the Plan Administrator to perform
his functions, the Employer shall supply full and timely information to
the Plan Administrator (or his designated agents) on all matters
relating to the Compensation of all Participants or Contributing
Participants, their Service performed, termination of employment and
such other pertinent facts as the Plan Administrator (or his agents)
may require. The Plan Administrator (or his agents) is entitled to rely
on such information as is supplied by the Employer and shall have no
duty or responsibility to verify such information.
SECTION SIX CLAIMS PROCEDURE
6.01 FILING A CLAIM FOR CONTRIBUTIONS A Participant, Contributing
Participant or Beneficiary (hereinafter "Claimant") shall make a claim
to share in Employer Contributions by filing a written request with the
Plan Administrator on a form to be furnished to him for such purpose.
The claim shall set forth the basis of the claim and shall authorize
the Plan Administrator to conduct such examinations as may be necessary
to facilitate the making of any contributions to which the Claimant may
be entitled under the terms of the Plan.
6.02 DENIAL OF CLAIM Whenever a claim for an Employer Contribution by any
Claimant has been wholly or partially denied, the Plan Administrator
must furnish such Claimant written notice of the denial within sixty
(60) days of the date the original claim was filed. This notice shall
set forth the specific reason for the denial, specific reference to
pertinent Plan provisions on which the denial is based, a description
of any additional information needed to perfect the claim, an
explanation of why it is necessary and an explanation of the procedures
for appeal.
6.03 REMEDIES AVAILABLE The Claimant shall have sixty (60) days from receipt
of the denial notice in which to make written application for review by
the Plan Administrator. The Claimant may request that the review be in
the nature of a hearing. The Participant or Beneficiary shall have the
right to representation, to review pertinent documents and to submit
comments in writing. The Plan Administrator shall issue a decision on
such review within sixty (60) days after receipt of an application for
review as provided for in Section 6.02. Upon a decision unfavorable to
the Claimant, such Claimant shall be entitled to bring such actions in
law or equity as may be necessary or appropriate to protect or clarify
his right to an Employer Contribution under this Plan.
SECTION SEVEN AMENDMENT OR TERMINATION OF PLAN
7.01 AMENDMENT BY EMPLOYER The Employer reserves the right to amend the
elections made or not made on the Adoption Agreement by executing a new
Adoption Agreement and delivering a copy of the same to the Plan
Administrator and Plan Sponsor. The Employer shall not have the right
to amend any non-elective provision of the Adoption Agreement nor the
right to amend the Plan. If the employer adopts an amendment to the
Adoption Agreement or Plan in violation of the preceding sentence, the
Plan will be deemed to be an individually designed plan and may no
longer participate in this prototype plan.
7.02 AMENDMENT BY PLAN SPONSOR By adopting this Plan, the Employer delegates
to the Plan Sponsor the power to amend or replace the Adoption
Agreement or the Plan to conform them to the provisions of any law,
regulations or administrative rulings pertaining to Simplified Employee
Pensions and to make such other changes to the Plan, which, in the
judgment of the Plan Sponsor, are necessary or appropriate. The
Employer shall be deemed to have consented to all such amendments;
provided, however, that no changes may be made without the consent of
the Employer if the effect would be to substantially change the costs
or benefits under the Plan. The Plan Sponsor shall not have the
obligation to exercise or not to exercise the power delegated to it nor
shall the Plan Sponsor incur liability of any nature for any act done
or failed to be done by the Plan Sponsor in good faith in the exercise
or non-exercise of the power delegated hereunder.
7.03 LIMITATIONS ON POWER TO AMEND No amendment by either the Employer or
the Plan Sponsor shall reduce or otherwise adversely affect any
benefits of a Participant, Contributing Participant or Beneficiary
acquired prior to such amendment unless it is required to maintain
compliance with any law, regulation or administrative ruling pertaining
to Simplified Employee Pensions.
7.04 TERMINATION While the Employer expects to continue the Plan
indefinitely, the Employer shall not be under any obligation or
liability to continue contributions or to maintain the Plan for any
given length of time. This Plan shall terminate on the occurrence of
any of the following events:
A. Delivery to the Plan Administrator and Plan Sponsor of a notice of
termination executed by the Employer specifying the effective date of
the Plan's termination.
B. Adjudication of the Employer as bankrupt or the liquidation or
dissolution of the Employer
7.05 NOTICE OF AMENDMENT, TERMINATION Any amendment or termination shall be
communicated by the Employer to all appropriate parties as required by
law. Amendments made by the Plan Sponsor shall be furnished to the
Employer and communicated by the Employer to all appropriate parties as
required by law. Any filings required by the Internal Revenue Service
or any other regulatory body relating to the amendment or termination
of the Plan shall be made by the Employer.
IRA SIMPLIFIER
IRA FINANCIAL DISCLOSURE
This account is termed an Individual Retirement Account (IRA). You may direct
the investment of your funds within this IRA into any of the Secural Mutual
Funds or the First American Money Fund. The Custodian will not exercise any
investment discretion regarding your IRA, as this is solely your responsibility
because this is a Mutual Fund IRA, no projection of the growth of your IRA can
reasonably be shown or guaranteed. The value of your IRA will be solely
dependent upon the performance of any investment instruments chosen by you to
fund your IRA.
Terms and conditions of the IRA which affect your investment decisions are
listed below.
INVESTMENT OPTIONS
Your SECURAL* IRA allows you to choose from the list of investment option.
Government Bond Fund - A short-intermediate term bond fund which seeks to
provide high current income with modest fluctuations in net asset value.
Fixed Income Fund - An intermediate-term bond fund which seeks to provide high
current income.
Stock Fund - A common stock mutual fund which seeks to provide long-term capital
appreciation, with a secondary objective of income.
Special Equity Fund - A growth stock mutual fund seeking long term capital
appreciation.
First American Money Fund - A money market mutual fund seeking high current
income and preservation of capital.
*Mutual Funds are sold by prospectus only. Please read the prospectus before
investing or sending money.
FEES
1. There are certain fees and charges connected with the investments you
may select for your IRA. These fees and charges include: Sales
commissions, investment management fees, distribution fees, annual
maintenance fees, and surrender or termination fees.
To find out what fees apply read the prospectus or contract which will describe
the term of the investment you choose.
2. There is a $10 annual fee for each investment option in your IRA. The
fee is payable when the IRA is opened and by December 31st of each year
for fiduciary services provided in the previous twelve months.
3. We reserve the right to change any of the above fees after notice to
you, as provided in your IRA Plan Agreement.
EARNINGS
The method for computing and allocating annual earnings (interest, dividends,
etc.) on your investments will vary with each investment chosen. Please refer to
the prospectus or contract of the investment(s) of your choice for the method(s)
used for computing and allocating annual earnings.
SECURA INVESTMENTS, INC. (CUSTODIAN)
2401 S. Memorial Drive
Appleton, WI 54915
800-426-5975
IRA SIMPLIFIER
INDIVIDUAL RETIREMENT ACCOUNT APPLICATION
ACCOUNTHOLDER INFORMATION
Check box if this is an amendment to an existing IRA. [ ] Amendment
ACCOUNT NO. _______________
DATE _________
INVESTMENT AMOUNT: $ __________
MADE FOR TAX YEAR 29 ___________
Type of IRA Contribution: [ ] Regular [ ] Spousal [ ] SEP [ ] Rollover [ ]
Transfer NAME ________________________
HOME ADDRESS ____________________________________
CITY _________________
STATE ________________
ZIP CODE _________
HOME PHONE (_____) _____________
BUSINESS PHONE (_____) ______________
SOCIAL SECURITY NO. ______________
DATE OF BIRTH ____________
INVESTMENT ALTERNATIVES
Please indicate below the fund(s) and dollar amount for your IRA investment:
Government Bond Fund $ _______________
Fixed Income Fund $ _______________
Stock Fund $ ______________
Special Equity Fund $ _______________
First American Money Fund $ ________________
Other ________________ $ _________________
DESIGNATION OF BENEFICIARY(IES)
I designate the individual(s) named below as my primary and contingent
Beneficiary(ies) of the IRA. I revoke all prior IRA Beneficiary designations, if
any, made by me. I understand that I may change or add Beneficiaries at any time
by completing and delivering the proper form to the Custodian.
If any primary or contingent Beneficiary dies before me, his or her interest and
the interest of his or her heirs shall terminate completely, and the percentage
share of any remaining Beneficiary(ies) shall be increased on a pro rata basis.
Primary Beneficiary(ies)
The following individual(s) shall be my Primary Beneficiary(ies):
NAME _______________________
ADDRESS _______________________________
_______________________________________
SOCIAL SECURITY NO. ______________
DATE OF BIRTH _____________ SHARE ______ %
RELATIONSHIP _____________
NAME _______________________
ADDRESS _______________________________
_______________________________________
SOCIAL SECURITY NO. ______________
DATE OF BIRTH _____________ SHARE ______ %
RELATIONSHIP _____________
Contingent Beneficiary(ies)
If none of the Primary Beneficiaries survive me, the following individual(s)
shall be my Beneficiary(ies):
NAME _______________________
ADDRESS _______________________________
_______________________________________
SOCIAL SECURITY NO. ______________
DATE OF BIRTH _____________ SHARE ______ %
RELATIONSHIP _____________
NAME _______________________
ADDRESS _______________________________
_______________________________________
SOCIAL SECURITY NO. ______________
DATE OF BIRTH _____________ SHARE ______ %
RELATIONSHIP _____________
Spousal Consent (For use in community or marital property states)
I am the spouse of the IRA accountholder named above. I agree to my spouse's
naming of a primary Beneficiary other than myself. I acknowledge that I have
received a fair and reasonable disclosure of my spouse's property and financial
obligations. I also acknowledge that I shall have no claim whatsoever against
the Custodian for any payment to my spouse's named Beneficiary(ies).
_____________________________ ________________
SPOUSE'S SIGNATURE DATE
SIGNATURES
Important: Please read before signing.
I understand the eligibility requirements for the type of IRA I am establishing
and I state that I do qualify to make the investment. I have received a copy of
the Application, 5305-A Plan Agreement, Financial Disclosure and Disclosure
Statement. I understand that the terms and conditions which apply to this
Individual Retirement Account are contained in this Application and the 5305-A
Plan Agreement. I agree to be bound by those terms and conditions. Within seven
(7) days from the date I open this IRA I may revoke it without penalty by making
or delivering a written notice to the Custodian.
I assume complete responsibility for:
1. Determining that I am eligible for an IRA each year I make a contribution.
2. Ensuring that all contributions I make are within the limits set forth by
the tax laws.
3. The tax consequences of any contribution (including rollover contributions)
and distributions.
I expressly certify that I take complete responsibility for the type of
investment instrument(s) I choose to fund my IRA, and that the Custodian is
released of any liability regarding the performance of any investment choice I
make.
_________________________________ _______________
ACCOUNTHOLDER DATE
_________________________________ _______________
WITNESS DATE
_________________________________ _______________
AUTHORIZED SIGNATURE CUSTODIAN DATE
INDIVIDUAL RETIREMENT CUSTODIAL ACCOUNT
FORM 5305-A UNDER SECTION 408(A) OF THE INTERNAL REVENUE CODE
Do Not File With Internal Revenue Service
The Depositor whose name appears on the application on the reverse side is
establishing an Individual Retirement Account (under Section 408(a) of the
Internal Revenue Code) to provide for his or her retirement and for the support
of his or her beneficiaries after death.
The Custodian named on the Application has given the Depositor the disclosure
statement required under the Income Tax Regulations under Section 408(l) of the
Code.
The Depositor has deposited with the Custodian the sum indicated on the
Application in cash.
The Depositor and the Custodian make the following Agreement:
ARTICLE I
The Custodian may accept additional cash contributions on behalf of the
Depositor for a tax year of the Depositor. The total cash contributions are
limited to $2,000 for the tax year unless the contribution is a rollover
contribution described in section 402(a)(5), 402(a)(7), 403(a)(4), 403(b)(8),
408(d)(3) of the Code or an employer contribution to a Simplified Employee
Pension Plan as described in Section 408(k).
ARTICLE II
The Depositor's interest in the balance in the Custodial account is
non-forfeitable.
ARTICLE III
1. No part of the Custodial funds may be invested in life insurance contracts,
nor may the assets of the Custodial account be commingled with other property
except in a common Trust fund or common investment fund (within the meaning of
Section 408(a)(5) of the Code).
2. No part of the Custodial funds may be invested in collectibles (within the
meaning of Section 4022(m) of the Code).
ARTICLE IV
1. The Depositor's entire interest in the Custodial account must be or begin to
be, distributed by the Depositor's required beginning date, the April 1
following the calendar year end in which the Depositor reaches age 70 1/2. By
that date, the Depositor may elect, in a manner acceptable to the Custodian, to
have the balance in the Custodial account distributed in:
(a) A single sum payment
(b) An annuity contract that provides equal or substantially equal monthly,
quarterly, or annual payments over the life of the Depositor. The payments
must begin by April 1 following the calendar year in which the Depositor
reaches age 70 1/2.
(c) An annuity contract that provides equal or substantially equal monthly,
quarterly, or annual payments over the joint and last survivor lives of the
Depositor and his or her designated beneficiary. The payments must begin by
the April 1 following the calendar year in which the Depositor reaches age
70 1/2.
(d) Equal or substantially equal annual payment over a specified period that may
not be longer than the joint life and last survivor expectancy of the
Depositor and his or her designated beneficiary.
(e) Equal or substantially equal annual payments over a specified period that
may not be longer than the joint life and last survivor expectancy of the
Depositor and his or her designated beneficiary.
Even if distributions have begun to be made under option (d) or (e), the
Depositor may receive a distribution of the balance in the Custodial account at
any time by giving written notice to the Custodian. If the Depositor does not
choose any of the methods of distribution described above by the April 1
following the calendar year in which he or she reaches age 70 1/2, distribution
to the Depositor will be made on that date by a single sum payment. If the
Depositor elects as a means of distribution (b) or (c) above, the annuity
contract must satisfy the requirements of Section 408(b)(1), (3), and (4) of the
Code. If the Depositor elects as a means of distribution (d) or (e) above, the
annual payment required to be made by t he Depositor's required beginning date
is for the calendar year the Depositor reached age 70 1/2. Annual payments for
subsequent years, including the year the Depositor's required beginning date
occurs, must be made by December 31 of that year.
2 If the Depositor dies before his or her entire interest is distributed to him
or her, the entire remaining interest will be distributed as follows:
(a) If the Depositor dies on or after the Depositor's required beginning date,
distribution must continue to be made in accordance with paragraph 1.
(b) If the Depositor dies before the Depositor's required beginning date, the
entire remaining interest will, at the election of the beneficiary or
beneficiaries, either:
(i) Be distributed by the December 31 of the year
containing the fifth anniversary of the Depositor's death, or
(ii) Be distributed in equal or substantially equal payments over the life
or life expectancy of the designated beneficiary or beneficiaries.
The election of either (i) or (ii) must be made by December 31 of the year
following the year of the Depositor's death. If the beneficiary or beneficiaries
do not elect either of the distribution options described in (i) and (ii),
distribution will be made in accordance with (ii) if the beneficiary is the
Depositor's surviving spouse and in accordance with (i) if the beneficiary or
beneficiaries are or include anyone other than the surviving spouse. In the case
of distributions under (ii), distributions must commence by December 31 of the
year following the year the Depositor would have attained age 70 1/2, if later.
(c) If the Depositor dies before his or her entire interest has been distributed
and if the beneficiary is other than the surviving spouse, no additional
cash contributions or rollover contributions may be accepted in the account.
3. In the case of distribution over life expectancy y in equal or substantially
equal annual payments, to determine the minimum annual payment for each year,
divide the Depositor's entire interest in the Custodial account as of the close
of business on December 31 of the preceding year by the life expectancy of the
Depositor (or the joint life and last survivor expectancy of the Depositor and
the Depositor's designated beneficiary, or the life expectancy of the designated
beneficiary, whichever applies). In the case of distributions under paragraph
(1), determine the initial life expectancy (or joint life and last survivor
expectancy) using the attained ages of the Depositor and designated beneficiary
as of the beneficiary's birthday in the year distributions are required to
commence. Unless the Depositor (or spouse) elects not to have life expectancy
recalculated, the Depositor's life expectancy (and the life expectancy of the
Depositor's spouse, if applicable) will be recalculated annually using their
attained ages as of their birthdays in the year for which the minimum annual
payment is being determined. The life expectancy of the designated beneficiary
(other than the spouse) will not be recalculated. The minimum annual payment may
be made in a series of installments (e.g. monthly, quarterly, etc) as long as
the total payments for the year made by the date required are not less than the
minimum amounts required.
ARTICLE V
Unless the Depositor dies, is disabled (as defined in Section 72(m) of the
Code), or reaches age 59 1/2 before any amount is distributed from the Custodial
account, the Custodian must receive from the Depositor a statement explaining
how he or she intends to dispose of the amount distributed.
Individual Retirement Custodial Account
Form 5305-A Under Section 408(a) of the Internal Revenue Code
Do Not File With Internal Revenue Service
The Depositor whose name appears on the Application on the reverse side is
establishing an Individual Retirement Account (under Section 408(a) of the
Internal Revenue Code) to provide for his or her retirement and for the support
of his or her beneficiaries after death.
The Custodian named on the Application has given the Depositor the disclosure
statement required under the Income Tax Regulations under Section 408(i) of the
Code.
The Depositor has deposited with the Custodian the sum indicated on the
Application in cash.
The Depositor and the Custodian make the following Agreement:
ARTICLE I
The Custodian may accept additional cash contributions on behalf of the
Depositor for a tax year of the Depositor. The total cash contributions are
limited to $2,000 for the tax year unless the contribution is a rollover
contribution described in Section 402(a)(5), 402(a)(7), 403(a)(4), 403(b)(8),
408(d)(3) of the Code or an employer contribution to a Simplified Employee
Pension Plan as described in Section 408(k).
ARTICLE II
The Depositor's interest in the balance in the Custodial account is
non-forfeitable.
ARTICLE III
1. No part of the Custodial funds may be invested in life insurance contracts,
nor may the assets of the Custodial account be commingled with other property
except in a common Trust fund or common investment fund (within the meaning of
Section 408(a)(5) of the Code).
2. No part of the Custodial funds may be invested in collectibles (within the
meaning of Section 408(m) of the Code).
ARTICLE IV
1. The Depositor's entire interest in the Custodial account must be or being to
be distributed by the Depositor's required beginning date, the April 1 following
the calendar year end in which the Depositor reaches age 701/2. By that date,
the Depositor may elect, in a manner acceptable to the Custodian, to have the
balance in the Custodial account distributed in:
(a) A single sum payment.
(b) An annuity contract that provides equal or substantially equal
monthly, quarterly, or annual payments over the life of the Depositor. The
payments must being by April 1 following the calendar year in which the
Depositor reaches age 701/2.
(c) An annuity contract that provides equal or substantially equal
monthly, quarterly, or annual payments over the joint and last survivor
lives of the Depositor and his or her designated beneficiary. The payments
must begin by the April 1 following the calendar year in which the
Depositor reaches age 701/2.
(d) Equal or substantially equal annual payments over a specified
period that may not be longer than the Depositor's life expectancy.
(e) Equal or substantially equal annual payments over a specified
period that may not be longer than the joint life and last survivor
expectancy of the Depositor and his or her designated beneficiary.
Even if distributions have begun to be made under option (d) or (e), the
Depositor may receive a distribution of the balance in the Custodial account at
any time by giving written notice to the Custodian. If the Depositor does not
choose any of the methods of distribution described above by the April 1
following the calendar year in which he or she reaches age 701/2, distribution
to the Depositor will be made on that date by a single sum payment. If the
Depositor elects as a means of distribution (b) or (c) above, the annuity
contract must satisfy the requirements of Section 408(b)(1), (3), and (4) of the
Code. If the Depositor elects as a means of distribution (d) or (e) above, the
annual payment required to be made by the Depositor's required beginning date is
for the calendar year the Depositor reached age 701/2. Annual payments for
subsequent years, including the year the Depositor's required beginning date
occurs, must be made by December 31 of that year.
2. If the Depositor dies before his or her entire interest is distributed to him
or her, the entire remaining interest will be distributed as follows:
(a) If the Depositor dies on or after the Depositor's required
beginning date, distribution must continue to be made in accordance with
paragraph 1.
(b) If the Depositor dies before the Depositor's required beginning
date, the entire remaining interest will, at the election of the
beneficiary or beneficiaries, either
(i) Be distributed by the December 31 of the year containing the fifth
anniversary of the Depositor's death, or
(ii) Be distributed in equal or substantially equal payments over the life
or life expectancy of the designated beneficiary or beneficiaries.
The election of either (i) or (ii) must be made by December 31 of the year
following the year of the Depositor's death. If the beneficiary or beneficiaries
do not elect either of the distribution options described in (i) and (ii),
distribution will be made in accordance with (ii) if the beneficiary is the
Depositor's surviving spouse and in accordance with (i) if the beneficiary or
beneficiaries are or include anyone other than the surviving spouse. In the case
of distributions under (ii), distributions must commence by December 31 of the
year following the year of the Depositor's death. If the Depositor's spouse is
the beneficiary, distributions need not commence until December 31 of the year
the Depositor would have attained age 701/2, if later.
(c) If the Depositor dies before his or her entire interest has been
distributed and if the beneficiary is other than the surviving spouse, no
additional cash contributions or rollover contributions may be accepted in the
account.
3. In the case of distribution over life expectancy in equal or
substantially equal annual payments, to determine the minimum annual payment for
each year, divide the Depositor's entire interest in the Custodial account as of
the close of business on December 31 of the preceding year by the life
expectancy of the Depositor (or the joint life and last survivor expectancy of
the Depositor and the Depositor's designated beneficiary, or the life expectancy
of the designated beneficiary, whichever applies). In the case of distributions
under paragraph (1), determine the initial life expectancy (or joint life and
last survivor expectancy) using the attained ages of the Depositor and
designated beneficiary as of their birthdays in the year the Depositor reaches
age 701/2. In the case of distribution in accordance with paragraph 2(b)(ii),
determine life expectancy using the attained age of the designated beneficiary
as of the beneficiary's birthday in the year distributions are required to
commence. Unless the Depositor (or spouse) elects not to have life expectancy of
the Depositor's spouse, if applicable) will be recalculated annually using their
attained ages as of their birthdays in the year for which the minimum annual
payment is being determined. The life expectancy of the designated beneficiary
(other than the spouse) will not be recalculated. The minimum annual payment may
be made in a series of installments (e.g. monthly, quarterly, etc.) as long as
the total payments for the year made by the date required are not less than the
minimum amounts required.
ARTICLE V
Unless the Depositor dies, is disabled (as defined in Section 72(m) of the
Code), or reaches age 59 1/2 before any amount is distributed from the custodial
account, the custodian must receive from the Depositor a statement explaining
how he or she intends to dispose of the amount distributed.
The Depositor whose name appears on the Application on the reverse side is
establishing an Individual Retirement Account (under Section 408(a) of the
Internal Revenue Code) to provide for his or her retirement and for the support
of his or her beneficiaries after death.
The Custodian named on the Application has given the Depositor the disclosure
statement required under the Income Tax Regulations under Section 408(i) of the
Code.
The Depositor has deposited with the Custodian the sum indicated on the
Application in cash.
The Depositor and the Custodian make the following Agreement:
ARTICLE I
The Custodian may accept additional cash contributions on behalf of the
Depositor for a tax year of the Depositor. The total cash contributions are
limited to $2,000 for the tax year unless the contribution is a rollover
contribution described in Section 402(a)(5), 402(a)(7), 403(a)(4), 403(b)(8),
408(d)(3) of the Code or an employer contribution to a Simplified Employee
Pension Plan as described in Section 408(k).
ARTICLE II
The Depositor's interest in the balance in the Custodial account is
non-forfeitable.
ARTICLE III
1. No part of the Custodial funds may be invested in life insurance contracts,
nor may the assets of the Custodial account be commingled with other property
except in a common Trust fund or common investment fund (within the meaning of
Section 408(a)(5) of the Code).
2. No part of the Custodial funds may be invested in collectibles (within the
meaning of Section 408(m) of the Code).
ARTICLE IV
1. The Depositor's entire interest in the Custodial account must be or begin to
be distributed by the Depositor's required beginning date, the April 1 following
the calendar year end in which the Depositor reaches age 70 1/2. By that date,
the Depositor may elect, in a manner acceptable to the Custodian, to have the
balance in the Custodial account distributed in:
(a) A single sum payment.
(b) An annuity contract that provides equal or substantially equal monthly,
quarterly, or annual payments over the life of the Depositor. The payments must
begin by April 1 following the calendar year in which the Depositor reaches age
70 1/2.
(c) An annuity contract that provides equal or substantially equal monthly,
quarterly, or annual payments over the joint and last survivor lives of the
Depositor and his or her designated beneficiary. The payments must begin by the
April 1 following the calendar year in which the Depositor reaches age 70 1/2.
(d) Equal or substantially equal annual payments over a specified period
that may not be longer than the Depositor's life expectancy.
(e) Equal or substantially equal annual payments over a specified period
that may not be longer than the joint life and last survivor expectancy of the
Depositor and his or her designated beneficiary.
Even if distributions have begun to be made under option (d) or (e), the
Depositor may receive a distribution of the balance in the Custodial account at
any time by giving written notice to the Custodian. If the Depositor does not
choose any of the methods of distribution described above by the April 1
following the calendar year in which he or she reaches age 70 1/2, distribution
to the Depositor will be made on that date by a single sum payment. If the
Depositor elects as a means of distribution (b) or (c) above, the annuity
contract must satisfy the requirements of Section 408(b)(1), (3), and (4) of the
Code. If the Depositor elects as a means of distribution (d) or (e) above, the
annual payment required to be made by the Depositor's required beginning date is
for the calendar year the Depositor reached age 70 1/2. Annual payments for
subsequent years, including the year the Depositor's required beginning date
occurs, must be made by December 31 of that year.
2. If the Depositor dies before his or her entire interest is distributed to him
or her, the entire remaining interest will be distributed as follows:
(a) If the Depositor dies on or after the Depositor's required beginning
date, distribution must continue to be made in accordance with paragraph 1.
(b) If the Depositor dies before the Depositor's required beginning date,
the entire remaining interest will, at the election of the beneficiary or
beneficiaries, either
(i) Be distributed by the December 31 of the year containing the fifth
anniversary of the Depositor's death, or
(ii) Be distributed in equal or substantially equal payments over the
life or life expectancy of the designated beneficiary or
beneficiaries.
The election of either (i) or (ii) must be made by December 31 of the year
following the year of the Depositor's death. If the beneficiary or beneficiaries
do not elect either of the distribution options described in (i) and (ii),
distribution will be made in accordance with (ii) if the beneficiary is the
Depositor's surviving spouse and in accordance with (i) if the beneficiary or
beneficiaries are or include anyone other than the surviving spouse. In the case
of distributions under (ii), distributions must commence by December 31 of the
year following the year of the Depositor's death. If the Depositor's spouse is
the beneficiary, distributions need not commence until December 31 of the year
the Depositor would have attained age 70 1/2, if later.
(c) If the Depositor dies before his or her entire interest has been
distributed and if the beneficiary is other than the surviving spouse, no
additional cash contributions or rollover contributions may be accepted in the
account.
3. In the case of distribution over life expectancy in equal or substantially
equal annual payments, to determine the minimum annual payment for each year,
divide the Depositor's entire interest in the Custodial account as of the close
of business on December 31 of the preceding year by the life expectancy of the
Depositor (or the joint life and last survivor expectancy of the Depositor and
the Depositor's designated beneficiary, or the life expectancy of the designated
beneficiary, whichever applies). In the case of distributions under paragraph
(1), determine the initial life expectancy (or joint life and last survivor
expectancy) using the attained ages of the Depositor and designated beneficiary
as of their birthdays in the year the Depositor reaches age 70 1/2. In the case
of distribution in accordance with paragraph (2)(b)(ii), determine life
expectancy using the attained age of the designated beneficiary as of the
beneficiary's birthday in the year distributions are required to commence.
Unless the Depositor (or spouse) elects not to have life expectancy
recalculated, the Depositor's life expectancy (and the life expectancy of the
Depositor's spouse, if applicable) will be recalculated annually using their
attained ages as of their birthdays in the year for which the minimum annual
payment is being determined. The life expectancy of the designated beneficiary
(other than the spouse) will not be recalculated. The minimum annual payment may
be made in a series of installments (e.g., monthly, quarterly, etc.) as long as
the total payments for the year made by the date required are not less than the
minimum amounts required.
ARTICLE V
Unless the Depositor dies, is disabled (as defined in Section 72(m) of the
Code), or reaches age 59 1/2 before any amount is distributed from the Custodial
account, the Custodian must receive from the Depositor a statement explaining
how he or she intends to dispose of the amount distributed.
ARTICLE VI
1. The Depositor agrees to provide the Custodian with information necessary for
the Custodian to prepare any reports required under Section 408(i) of the Code
and the related regulations.
2. The Custodian agrees to submit reports to the Internal Revenue Service and
the Depositor as prescribed by the Internal Revenue Service.
ARTICLE VII
Notwithstanding any other articles which may be added or incorporated, the
provisions of Articles I through III and this sentence will be controlling. Any
additional articles that are not consistent with Section 408(a) of the Code and
related regulations will be invalid.
ARTICLE VIII
This Agreement will be amended from time to time to comply with the provisions
of the Code and related regulations. Other amendments may be made with the
consent of the persons whose signatures appear on the Application on the reverse
side.
ARTICLE IX
Definitions: In this part of the Agreement (Article DO, the words "you" and
"your" mean the Depositor and the words "we" "us" and "our" mean the Custodian.
The term "Broker" means the broker-dealer selected by us to provide services to
your IRA.
Notices And Change of Address: Any required notice regarding the IRA will be
considered effective when we mail it to the last address of the intended
recipient which we have in our records. Any notice to be given to us will be
considered effective when we actually receive it. You must notify us of any
change of address.
Representations and Responsibilities: You represent and warrant to us that any
information you have given or will give us with respect to the Agreement is
complete and accurate. Further you promise that any direction you give us, or
action you take will be proper under the Agreement. We shall not be responsible
for your actions or failures to act. Likewise, you shall not be responsible for
our actions or failures to act; provided, however, that our duties and
responsibilities under this Agreement are limited to those specifically stated
in the Agreement and no other or further duties or responsibilities shall be
implied.
Service Fee: We have the right to charge an annual service fee or other
designated fee (for example, a transfer, rollover or termination fee) for
maintaining your IRA. If you do not pay any fee separately, it will be paid from
the assets in your IRA. We reserve the right to charge any additional fee upon
30 days notice to you that the fee will be effective.
Custodial Account: We shall maintain a Custodial account for your benefit. The
Custodial account will consist of investments, purchased at your direction, on
or between SECURAL Mutual Funds, First American Money Fund or annuity policies
available through SECURA Life Insurance Company, Inc.
Investment of Amounts In The IRA: You have exclusive responsibility for and
control over the selection of your IRA investments. However, your investment is
limited to the SECURAL Mutual Funds, First American Money Fund or eligible
annuity policies available through SECURA Life Insurance Company, Inc.
Neither we nor any other party providing services to the Custodial account
(including any Broker) assume any responsibility for rendering advice with
respect to the investment and reinvestment of the assets of your IRA nor shall
such parties be liable for any loss which results from your investment decisions
or have any duty to question your investment directions.
All of the foregoing notwithstanding your investment directions shall be subject
to any and all restrictions or limitations, direct or indirect, which are
imposed by or flow from the by-laws of our institution and all Federal and State
laws and regulations which apply to us.
Broker: The Broker will be responsible for the execution of securities orders.
The Broker may require that you sign an agreement which sets forth, among other
things, its responsibilities and your responsibilities regarding securities
transactions for your IRA.
Beneficiaries: If you die before you receive all of the amounts in your IRA,
payments from your IRA will be made to your beneficiary(ies). You may designate
any person(s) as beneficiary(ies) of your IRA. This designation can only be made
on a form prescribed by us and it will only be effective when it is filed with
us during your lifetime.
Each beneficiary designation you file with us will cancel all previous ones. The
consent of a beneficiary shall not be required to revoke a beneficiary
designation. If you do not designate a beneficiary, your estate will be the
beneficiary.
Instruction: Either party may terminate the Agreement at any time by giving
written notice to the other.
If this Agreement is terminated, we may hold back from your IRA a reasonable
amount of money that we believe is necessary to cover any one or more of the
following:
* Any expenses or chargeable against your IRA
* Any penalties associated with the early withdrawal of the savings instrument
in your IRA
If our institution is merged with or bought by another institution or comes
under the control of any Federal or State agency, that institution or agency
shall become the Custodian of your IRA, but only if it is the type of
organization approved by the Internal Revenue Service to hold assets of IRAs.
Adverse Claims: If we receive any claim to the assets held in your IRA which is
adverse to your interest or the interest of your beneficiary and we in our
absolute discretion decide that the claim is or may be meritorious we may
withhold distribution until the claim is resolved or until instructed by a court
of competent jurisdiction. As an alternate we may deposit all or any portion of
the assets in your IRA into the court. Deposit with the court shall relieve us
of any further obligation with respect to the assets deposited. We have the
right to be reimbursed from the funds deposited with the court for our legal
fees and costs incurred.
Withdrawals: All requests for withdrawal shall be in writing on a form provided
by or acceptable to us. The reason for the withdrawal and the method of
distribution must be stated in writing.
Any withdrawals shall be subject to all applicable tax and other laws and
regulations including possible early withdrawal penalties and withholding
requirements.
Election: The Custodian reserves the right to elect whether or not the will be
recalculated; provided, however, that notice of such election be given to you.
Benefits From Other IRAs: We can receive amounts transferred to the IRA from the
Custodian or Trustee of another IRA.
Restrictions On The Fund: Neither you nor any beneficiary may sell, transfer or
pledge any interest on your IRA in any manner whatsoever except as provided by
law or this Agreement.
The assets in your IRA shall not be responsible for the debts, contracts or
torts of any person entitled to distributions under the Agreement.
What Law Applies: The Agreement is subject to all applicable Federal and State
laws and regulations. If it is necessary to apply any State Law to interpret and
administer the Agreement, the law of our domicile shall govern.
If any part of this Agreement is held to be illegal or invalid, the remaining
party shall not be affected. Neither your nor our failure to enforce at any time
or for any period of time any of the provisions of the Agreement shall be
construed as a waiver of such provisions, or your right or our right thereafter
to enforce such every such provision.
INSTRUCTIONS
(Section references are to the Internal Revenue Code unless otherwise stated.)
PURPOSE OF FORM
The model Custodial account may be used by an individual who wishes to adopt an
Individual Retirement Account under Section 408(a). When fully executed by the
Depositor and the Custodian not later than the time prescribed by law for filing
the Federal Income tax return for the Depositor's tax year (not including any
thereof) an individual will have an Individual Retirement Account (IRA)
Custodial account which means the requirements of Section 408(a). This account
shall be created in the United States for the exclusive benefit of the Depositor
or his/her beneficiaries.
Definitions:
Custodian: The Custodian shall be a bank or savings and loan association, as
defined in Section 408(n) or other person who has the approval of the Internal
Revenue Service to act as Custodian.
Depositor: The Depositor is the person who establishes the Custodial account.
IRA FOR NON-WORKING SPOUSE
Contributions to an IRA Custodial account for a non-working spouse must be made
to a separate IRA Custodial account established by the non-working spouse.
This form may be used to establish the IRA Custodial account for the non-working
spouse.
An employee's social security number will serve as the identification number of
his or her individual Retirement Account. An employer identification number is
only required for each participant-directed Individual Retirement Account. An
employer identification number is required for a common fund created for
Individual Retirement Accounts.
For more information, get a copy of the required disclosure statement from your
Custodian or get Publication 590 Individual Retirement Arrangements (IRAs).
SPECIFIC INSTRUCTIONS
Article IV: Distributions made under the Article may be made in a single
periodic payment or a combination of both. The distribution option should be
reviewed in the year the Depositor reaches age 70 to make sure the requirements
of Section 408(a)(6) have been met.
Article IX: This Article and any that follow it may incorporate additional
provisions that are agreed upon by the Depositor and Custodian to complete the
Agreement. This may include, for example, distributions, investment powers,
voting rights, provisions, amendments and termination removal of Custodian,
Custodian's fees, State law requirements beginning date of distributions,
accepting only cash, treatment of excess combinations, prohibited transactions
with the Depositor, etc. Use additional pages if necessary and attach them to
the form.
ARTICLE VI The Depositor agrees to provide the Custodian with information
necessary for the Custodian to prepare any reports required under Section 408(1)
of the Code and the related regulations. The Custodian agrees to submit reports
to the Internal Revenue Service and the Depositor as prescribed by the Internal
Revenue Service.
ARTICLE VII Notwithstanding any other articles which may be added or
incorporated, the provisions of Articles I through III and this sentence will be
controlling. Any additional articles that are not consistent with Section 400(a)
of the Code and related regulations will be invalid.
ARTICLE VIII This Agreement will be amended from time to time to comply with the
provisions of the Code and related regulations. Other amendments may be made
with the consent of the persons whose signatures appear on the Application on
the reverse side.
ARTICLE IX Definitions: In this part of this Agreement (Article IX), the words
"you" and "your" mean the Depositor and the words "we" "us" and "our" mean the
Custodian. The term "Broker" means the broker-dealer selected by us to provide
services to your IRA.
Nature and Change of Address: Any required notice regarding this IRA will be
considered effective when we mail it to the last address of the intended
recipient which we have in our records. Any notice to be given to us will be
considered effective when we actually receive it. You must notify us of any
change of address.
Representations and Responsibilities: You represent and warrant to us that any
information you have given or will give us with respect to this Agreement is
complete and accurate. Further, you promise that any direction you give us or
action you take will be proper under this Agreement. We shall not be responsible
for our actions or failures to act. Likewise you shall not be responsible for
our actions or failures to act provided, however that our duties and
responsibilities under this Agreement are limited to those specifically stated
int he Agreement and no other or further duties or responsibilities shall be
implied.
Service Fees: We have the right to charge an annual service fee or other
designated fees (for example a transfer, rollover or termination fee) for
maintaining your IRA. If you do not pay any fee separately, it will be paid from
the assets in your IRA. We reserve the right to charge any additional fee upon
30 days notice to you that the fee will be effective.
Custodial Account: We shall maintain a Custodial account for your benefit. The
Custodial account will consist of investments purchased at your direction in or
between SECURAL Mutual Funds, First American Money Fund or annuity policies
available through SECURA Life Insurance Company, Inc.
Investment of Amounts in the IRA: You have exclusive responsibility for and
control over the selection of your IRA investments. However, your investment is
limited to the SECURAL Mutual Funds. First American Money Fund or eligible
annuity policies available through SECURA Life Insurance Company, Inc.
Neither we nor any other party providing services to the Custodial account
(including any broker) assume any responsibility for rendering advice with
respect to the investment and reinvestment of the assets of you IRA nor shall
such parties be liable for any loss which results from your investment decisions
or have any duty to question your investment directions.
All of the foregoing notwithstanding you investment directions shall be subject
to any and all restrictions or limitations, direct or indirect, which are
imposed by or flow from the by-laws of our institution and all Federal and State
laws and regulations which apply to us.
Broker: The Broker will be responsible for the execution of securities orders.
The Broker may require that you sign an agreement which sets forth, among other
things, its responsibilities and your responsibilities regarding securities
transactions for you IRA.
Benefactors: If you die before you receive all of the amounts in your IRA,
payment from your IRA will be made to your beneficiary(ies).
You may designate any person(s) as beneficiary(ies) of you IRA. This designation
can only be made on a form prescribed by us and it will only be effective when
it is filed with us during your lifetime.
Each beneficiary designation you file with us will cancel all previous ones. The
consent of a beneficiary shall not be required to revoke a beneficiary
designation. If you do not designate a beneficiary, your estate will be the
beneficiary.
Termination: Either party may terminate this Agreement at any time by giving
written notice to the other. If this Agreement is terminated, we may hold back
from your IRA a reasonable amount of money that we believe is necessary to cover
any one or more of he following:
* Any expenses or terms chargeable against your IRA.
* Any penalties associated with the early withdrawal of the savings instrument
in your IRA.
If our institution is merged with or bought by another institution or comes
under the control of any Federal or State agency that institution (or agency)
shall become the Custodian of your IRA, but only if it is the type or
organization approved by the Internal Revenue Service to hold assets or IRAs.
Adverse Claims: If we receive any claim to the assets held in your IRA which is
adverse to your interest or the interest of your beneficiary and we in our
absolute discretion decide that the claim is or may be ??????? we may withhold
distribution until the claim is resolved or until instructed by a court of
competent jurisdiction. As an alternative we may deposit all or any portion of
the assets in your IRA into the court. Deposit with the court shall relieve us
of any further obligation with respect to the assets deposited. We have the
right to be reimbursed from the funds deposit with the court for our legal fees
and costs incurred.
Withdrawals: All requests for withdrawal shall be in writing on a form provided
by or acceptable to us. The reason for the withdrawal and the method of
distribution must be stated in writing.
Any withdrawals shall be subject to all applicable tax and other laws and
regulations including possible early withdrawals penalties and withholding
requirements.
Election: The Custodian reserves the right to elect whether or not late
expectancy will be recalculated, provided, however that notice that notice of
such election be given to you.
Transfers for other IRAs: We can receive amounts transferred to this IRA from
the Custodian or Trustee of another IRA.
Restrictions on the Fund: Neither you nor any beneficiary may well, transfer or
pledge any interest in your IRA in any manner whatsoever except as provided by
law or this Agreement.
The assets in your IRA shall not be responsible for the debts, contracts or
loans of any person entitled to distributions under this Agreement. What Law
Applies: This Agreement is subject to all applicable Federal and State laws and
regulations. If it is necessary to apply any State Law to interpret and
administer this Agreement, the law of our domicile shall govern.
If any part of this Agreement is held to be illegal or invalid, the remains
parts shall not be affected. Neither your nor our failure to enforce at any time
for any period of time any of the provisions or of this Agreement shall be
constructed as a waiver of such provisions or your right or our right thereafter
to enforce each and every such provision.
INSTRUCTIONS
(Section references are to the Internal Revenue Code unless otherwise noted.)
Purpose of Form
This model Custodial account may be used by an individual who wishes to adopt an
Individual Retirement Account under section 408(a). When fully executed by the
Depositor and the Custodian not later than the time prescribed by law for filing
the Federal income tax return for the Depositor's tax year (not including any
extensions thereof), an individual will have an Individual Retirement Account
(IRA) Custodial account which meets the requirements of Section 408(a). This
account must be created in the United States for the exclusive benefit of the
Depositor or his/her beneficiaries.
Definitions
Custodian: The Custodian must be a bank or savings and loan association, as
defined in Section 408(a), or other person who has the approval of the Internal
Revenue Service to act a s Custodian.
Depositor: The depositor is the person who establishes the Custodial account.
IRA for Non-Working Spouse
Contributions to an IRA Custodial amount for a non-working spouse must be made
to a separate IRA Custodial account established by the non-working spouse. This
form may be used to establish the IRA Custodial account for the non-working
spouse. An employee;s social security number will serve as the identification
number of his or her Individual Retirement Account. An employer identification
number is only required for each participant-directed Individual Retirement
Account. An employer identification number is required for a common fund created
for Individual Retirement Accounts. For more information get a copy of the
required disclosure statement for your Custodian or get Publication 590.
Individual Retirement Arrangements (IRAs).
SPECIFIC INSTRUCTIONS
Article IV: Distributions made under this Article may be made in a single sum
periodic payment, or a combination of both. The distribution option should be
reviewed in the year the Depositor reaches age 70's to make sure the
requirements of Section 408(a)(b) have been met.
Article IX: This Article and any that follow it may incorporate additional
provisions that are agreed upon by the Depositor and Custodian to complete the
Agreement. These may include for example: definitions, investment powers, voting
rights, esculpatory provisions, amendment and termination removal of Custodian.
Custodian's fees, State law requirements, beginning date of distributions,
accepting only cash treatment of excess contributions necessary and attach them
to this form.
Married Filing Jointly. If you are a married individual and file a joint
tax return with your spouse, you will be allowed a full IRA deduction of your
combined AGI of $40,000 or less. If your combined AGI is more than $40,000 but
less than $80,000, the maximum IRA contribution which you can deduct is your
contribution limit less an amount equal to your AGI in excess of $40,000
mutiplied by your contribution limit and devided by 10,000 (but never less than
$200). If your combined AGI is $50,000 or more, you will not be able to deduct
your IRA contribution .
Married Filing Separately. If you are married and file a separate tax
return and your AGI is $10,000 or more you will not be able to deduct your IRA
contribution. If your AGI is less than $10,000, the maximum IRA contribution
which you can deduct is your contribution limit less an amount equal to your AGI
multiplied by your contribution limit and divided by 10,000 (but never less than
$200).
Deduction Limit Rounding. If your AGI falls within the phaseout range (that
is $25,000 to $35,000 for single individuals, $40,000 to $50,000 for married
couples filing jointly and $0 to $10,000 for married individuals filing
separately), your deduction limit is rounded to the next highest $10 in the case
of a deduction limit that is not a multiple of $10.
Definition of Active Participant. Generally, you will be an activie participant
if you are covered by one or more of the following employer-maintained
retirement plans.
1. A qualified pension, profit sharing, or stock bonus plan.
2. A qualified annuity plan of an employer.
3. A Simplified Employee Pension (SEP) Plan.
4. A retirement plan established by the Federal government, a State, or a
political subdivision (except certain unfunded deferred compensation plans
under IRC Section 457).
5. A tax sheltered annuity for employees of certain tax-exempt organizations
or public schools, and
6. A qualified plan for self-employed individuals (H.R. 10 or Keogh Plan).
If you do not know whether your employer maintains one of these plans or
whether you are an active participant in it, check with your employer and your
tax advisor. Also, the Form W-2 (Wage and Tax Statement) that you receive at the
end of the year from your employer will indicate whether you are an activie
participant.
NOTE: The TRA-86 changes described above do not affect IRA contribution
rules. The IRA contribution limit remains the lesser of 100% of compensation or
$2,000. The TRA-86 changes only affect whether, and to what extent, an IRA
contribution can be deducted. If you make an IRA contribution and it cannot be
deducted, it is treated as a non-deductible IRA contribution.
No deduction is allowed for a contribution made to your IRA if you attain
age 70-1/2 before the close of the taxable year.
B. The investment earnings of your IRA are not subject to Federal income
tax until distributions are made (or in certain instances when distributions are
deemed to be made).
C. Non-Deductible Contributions
For taxable years beginning after December 31, 1986, you will be able to
make designated non-deductible contributions to your IRA to the extent that
deductible contributions are not allowed. The sum of your deductible and
non-deductible IRA contributions cannot exceed your contribution liit. You may
elect to treat deductible IRA contributions as non-deductible contributions.
In addition to the amount of deductible contributions for a particular tax
year, you must provide the following information on your Federal income tax
return:
1. The amount of designated non-deductible contributions for the tax year.
2. The aggregate amount of all designated non-deductible contributions for all
proceeding years which have not been withdrawn.
3. The aggregate balance of all IRAs as of the last day of the tax year, and
4. The amount of distributions from all IRAs during the year.
If you overstate the amount of designated non-deductible contributions for
any taxable year, you are subject to a $100 penalty unless reasonable cause for
the overstatement can be shown. Failure to file any form required by the IRS to
report non-deductible contributions will result in a $50 per failure penalty.
D. Taxation of Distributions
The taxation of IRA distributions received after December 31, 1986, depends
on whether or not you have ever made non-deductible IRA contributions. If you
have only made deductible contributions, any IRA distribution will be fully
included in income.
If you have ever made non-deductible contributions to any IRA, the
following formula must be used to determine the amount of any IRA distribution
excluded from income:
(Aggregate Non-Deductible Contributions) x (Amount Withdrawn) = Amount Excluded
from Aggregate IRA Balance Income
NOTE: Aggregate non-deductible contributions include all non-deductible
contributions made by you through the end of the year of the distribution (which
have not previously been withdrawn and excluded from income). Also note that
aggregate IRA balance includes the total balance of all of your IRAs as of the
end of the year of distribution and any distributions occuring during the year.
E. Your IRA may be rolled over to an IA of yours, or may receive rollover
contributions, provided that all of the applicable rollover rules are followed.
Rollover is a form used to describe a tax-free movement of cash or other
property to your IRA from any of your IRAs, or your employer's Qualified
Retirement Plan or Tax Sheltered Annuity. The rollover rules are generally
summarized below. These transactions are often complex. If you have any
questions regarding a rollover, please see a competent tax advisor.
1. Funds distributed from your IRA may be rolled over to an IRA of yours if the
requirements of IRC Section 408(d)(3) are met. A proper IRA to IRA rollover is
completed if all or part of the distribution is rolled over not later than 60
days after the distribution is received. You may not have completed another IRA
to IRA rollover from the distributing IRA during the 12 months preceding the
date you receive the distribution.
2. A distribution from your employer's Qualified Retirement P lan (QRP) or Tax
Sheltered Annuity (TSA) may be rolled over to your IRA if the requirements of
IRC Section 402(a)(5) or Section 403(b)(8) are met. To meet the QRP or TSA
rollover rules, a distribution myst be either a qualified total distribution or
a partial distribution as defined in the Internal Revenue Code. In either
situation, the distribution must be rolloed over to your IRA not later than 60
days after the distribution is received.
a. Generally, a qualified total distribution is a distribution
or series of distributions of your entire vested account in
your employer's QRP or TSA which is distributed to you within
one tax year because of plan termination (not applicable to
TSAs), death, attainmetn of age 59-1/2, separation from
service (not applicable to self-employeds) or disability
(only applicable to self-employeds).
b. Generally, a partial distribution is a single distribution of
at least 50% of your vested account balance in your
employer's QRP or TSA which is distributed because of your
separation from service, disability or death. If you rollover
a partial distribution to your IRA from your employer's QRP
or TSA, subsequent distributions you receive from the QRP or
TSA will not qualify for special five or ten year averaging.
3. At the time you make a proper rollover to an IRA, you must designate to the
Custodian or Trustee in writing that you are making a rollover contribution.
Once made, the written designation is irrevicable.
4. You cannot rollover to your IRA required m imum distributions which you
receive from your IRA or your employer's QRP or TSA. Required m imum
distributions are those which you must start taking for the year you attain age
70-1/2 or older.
F. A contribution is deeded to have been made on the last day of the preceding
taxable year if you make a contribution by the deadline for filing your income
tax return (not including ), and you designate that contribution as a
contribution for the preceding taxable year. For example, if you are a calendar
year taxpayer and you make your IRA contribution on or before April 15, your
contribution is considered to have been made for the previous tax year if you
designate it as such.
LIMITATIONS AND RESTRICTIONS
A. Under a Simplified Employee Pension (SEP) Plan that meets the requirements of
IRC Section 408(k), your employer may make contributions to your IRA. The basic
rules for a SEP-IRA are:
1. Each year your employer may make payments to your IRA of up to 15% of your
compenstaoin or $30,000, whichever is less.
2. In addition, you may contribute up to the lesser of $2,000 or 100% of your
compensation.
3. Your employer deducts SEP contributions made to your IRA, while you deduct
your own IRA contribution if you are allowed to (see IRA Deductibility above).
4. The yearly limit on contributions to an IRA established pursuant to a SEP
is $32,000 ($2,000 for you and $30,000 for your employer)
5. Your employer is required to provide you with information which decribes the
terms of your employer's SEP Plan.
B. If you are married, have compensation for a particular year and your spouse
has no compensation (or elects to be treated as having no compensation) for the
year, you may make payments to an IRA established for the benefit of your
spouse. Your spouse muyst not have attained age 70-1/2 in that year, even if you
are age 70-1/2 or older. You must file a joint tax return for the year for which
the contribution is made.
The amount you may contribute to your IRA and your spouse's IRA is the
lesser of $2,250 or 100% of your compensation. However, you may not contirbute
more than $2,000 to any one IRA.
C. A deduction is not allowed for rollover or transfer contributions.
D. The $100,000 Federal estate tax exclusion previously available has been
repealed for decedents living after 12/31/84. No exclusion will be allowed for
decedents dying after that date. Transfers of your IRA assets to a named
beneficiary made during your life and at your request or because of your failure
to instruct otherwise may be subject to Federal gift tax under IRC Section 2501
if made after October 22, 1986.
E. Capital gains treatment and favorable ten year forward averaging tax
authorized by IRC Section 402 do not apply to IRA distributsion.
F. Any withdrawal from your IRA, except a direct transfer, is subject to Federal
income tax withholding. You may however elect not to have withholding apply to
your IRA withdrawal. If withholding is applied to your withdrawal, 10% of the
amount withdrawn will be withheld.
G. If you or your beneficiary engage in a prohibited transaction with your IRA,
as described in IRC Section 4975 it will lose its tax exemption and you must
include the value of your account in your gross income for that taxable year.
H. If you pledge any portion of your IRA as collateral for a loan, the amount so
pledged will be treated as a distribution and will be included in your gross
income for that year.
FEDERAL TAX PENALTIES
A. If you are under age 99-1/2 and receive an IRA distribution, an additional
tax of 10% will apply unless made on account of death, disability, a qualifying
rollover, a direct transfer, the timely withdrawal of an excess contribution or
if the distribution is part of a series of substantially equal periodic payments
(at least annual payments) made over your life expedency or joint life
expectency of you and your beneficiary. This additional tax will apply only to
the person of a distribution which is includible in your income.
B. An excise tax of 6% is imposed upon any excess contribution you make to your
IRA. This tax will apply to each year an excess remains in your IRA. An excess
contribution is any contribution amount which exceeds your contribution limit,
excluding rollover and direct transfer amounts. Your contribution limit is the
lesser of $2,000 or 100% of your compensation for the taxable year.
C. One of the requirements listed above is that you are required to take a
minimum distribution by April 1 of the year following the year you attain age
70-1/2 and the end of each year thereafter and that your designated
beneficiary(ies) is required to take certain minimum distributions after your
death. An additional tax of 50% is imposed upon any excess of the miniumum
required to be distributed over the amount actually distributed. Thus tax is
referred to as an excess accumulation penalty tax.
D. You will be taxed an additional 15% of any amount received and included as
income during a calendar year fromn QRPs. TSAs and IRAs which exceeds $112,500
(or the current excess distribution limitation of IRC Section 4981.A) Certain
exceptions may apply. If you receive an excess distribution as described above,
you should see your tax advisor to determine if these exceptions apply to you.
This tax is referred to as an excess distribution penalty tax.
E. Your estate will have to pay additional Federal estate tax if you die with an
excess retirement accumulation. The increased estate tax will be equal to 15% of
the excess retirement accumulation. An excess retirement accumulation exists if,
at the time of your death, the value of all of your interests in QRPs. TSAs and
IRAs exceeds the present value of an annuity with annual payments of $112,500
(or the current excess distribution limitation of IRC Section 4981.A) payable
over your life expectency immediately before your death.
This tax is referred to as an e xcess retirement accumulation tax.
F. You must file Form 5329 with the Internal Revenue Serve when any additional
or excise taxes are due.
OTHER
A. The Agreement used to establish this IRA has been approved by the Internal
Revenue Service. The Internal Revenue Service approval is a determination only
as to form. It is not an endorsement of the plan in operation or of the
investments offered.
B. You may obtain fruther information on IRS from your District Office of the
Internal Revenue Service in particular you may wish to obtain IRS Publication
590 (Individual Retirement Arrangements)
EXHIBIT 15(a)
DISTRIBUTION PLAN
[retail class]
FIRST AMERICAN INVESTMENT FUNDS, INC.
WHEREAS, FIRST AMERICAN INVESTMENT FUNDS, INC. (the "Fund") is engaged
in business as an open-end investment company registered under the Investment
Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, the Directors of the Fund have determined that there is a
reasonable likelihood that the following Distribution Plan will benefit the Fund
and the owners of retail class shares of Common Stock ("Shareholders") in the
Fund;
NOW, THEREFORE, the Directors of the Fund hereby adopt this
Distribution Plan pursuant to Rule 12b-1 under the 1940 Act.
Section 1. The Fund has adopted this retail class Distribution Plan
("Plan") to enable the Fund to directly or indirectly bear expenses relating to
the distribution and shareholder servicing of retail class securities of the
Portfolios listed on Exhibit A (each a "Portfolio") of which the Fund is the
issuer.
Section 2. The retail class of each Portfolio is authorized to pay the
principal underwriter of the Fund's shares (the "Distributor") a total fee in
connection with the servicing of shareholder accounts of such class and in
connection with distribution-related services provided in respect of such class,
calculated and payable monthly, at the annual rate of .25% of the value of the
average daily net assets of such class. All or any portion of such total fee may
be payable as a Shareholder Servicing Fee, and all or any portion of such total
fee may be payable as a Distribution Fee, as determined from time to time by the
Fund's Board of Directors. Until further action by the Board of Directors, all
of such fee shall be designated and payable as a Shareholder Servicing Fee.
Section 3.
(a) The Shareholder Servicing Fee may be used by the Distributor to
provide compensation for ongoing servicing and/or maintenance of
shareholder accounts with respect to the retail class of the
applicable Portfolios of the Fund. Compensation may be paid by the
Distributor to persons, including employees of the Distributor, and
institutions who respond to inquiries of holders of such retail
class shares regarding their ownership of shares or their accounts
with the Fund or who provide other administrative or accounting
services not otherwise required to be provided by the Fund's
investment adviser, transfer agent or other agent of the Fund.
(b) The Distribution Fee may be used by the Distributor to provide
initial and ongoing sales compensation to its investment executives
and to other broker-dealers in respect of sales of retail class
shares of the applicable Portfolios of the Fund and to pay for
other advertising and promotional expenses in connection with the
distribution of such retail class shares. These advertising and
promotional expenses include, by way of example but not by way of
limitation, costs of printing and mailing prospectuses, statements
of additional information and shareholder reports to prospective
investors; preparation and distribution of sales literature;
advertising of any type; an allocation of overhead and other
expenses of the Distributor related to the distribution of such
retail class shares; and payments to, and expenses of, officers,
employees or representatives of the Distributor, of other
broker-dealers, banks or other financial institutions, and of any
other persons who provide support services in connection with the
distribution of such retail class shares, including travel,
entertainment, and telephone expenses.
(c) Payments under the plan are not tied exclusively to the expenses
for shareholder servicing and distribution related activities
actually incurred by the Distributor, so that such payments may
exceed expenses actually incurred by the Distributor. The Fund's
Board of Directors will evaluate the appropriateness of the Plan
and its payment terms on a continuing basis and in doing so will
consider all relevant factors, including expenses borne by the
Distributor and amounts it receives under the plan.
(d) The Fund's investment adviser and the Distributor may, at their
option and in their sole discretion, make payments from their own
resources to cover costs of additional distribution and shareholder
servicing activities.
Section 4. This Plan shall not take effect with respect to a Portfolio
until it has been approved (a) by a vote of at least a majority of the
outstanding voting securities of the retail class shares of such Portfolio; and
(b) together with any related agreements, by votes of the majority of both (i)
the Directors of the Fund and (ii) the Qualified Directors, cast in person at a
Board of Directors meeting called for the purpose of voting on this Plan or such
agreement.
Section 5. This Plan shall continue in effect for a period of more than
one year after it takes effect only for so long as such continuance is
specifically approved at least annually in the manner provided in Part (b) of
Section 4 herein for the approval of this Plan.
Section 6. Any person authorized to direct the disposition of monies
paid or payable by the Fund pursuant to this Plan or any related agreement shall
provide to the Directors of the Fund, at least quarterly, a written report of
the amounts so expended and the purposes for which such expenditures were made.
Section 7. This Plan may be terminated at any time with respect to any
Portfolio by the vote of a majority of the Qualified Directors or by vote of a
majority of the Portfolio's outstanding retail class voting securities.
Section 8. All agreements with any person relating to implementation of
this Plan shall be in writing, and any agreement related to this Plan shall
provide (a) that such agreement may be terminated at any time with respect to
any Portfolio, without payment of any penalty, by the vote of a majority of the
Qualified Directors or by the vote of Shareholders holding a majority of the
Portfolio's outstanding retail class voting securities, on not more than 60 days
written notice to any other party to the agreement; and (b) that such agreement
shall terminate automatically in the event of its assignment.
Section 9. This Plan may not be amended to increase materially the
amount of distribution expenses permitted pursuant to Section 2 hereof without
the approval of Shareholders holding a majority of the outstanding retail class
voting securities of the applicable Portfolio, and all material amendments to
this Plan shall be approved in the manner provided in Part (b) of Section 4
herein for the approval of this Plan.
Section 10. As used in this Plan, (a) the term "Qualified Directors"
shall mean those Directors of the Fund who are not interested persons of the
Fund, and have no direct or indirect financial interest in the operation of this
Plan or any agreements related to it, and (b) the terms "assignment" and
"interested person" shall have the respective meanings specified in the 1940 Act
and the rules and regulations thereunder, subject to such exemptions as may be
granted by the Securities and Exchange Commission.
Section 11. While this Plan is in effect, the selection and nomination
of those Directors who are not interested persons of the Fund within the meaning
of Section 2(a)(19) of the 1940 Act shall be committed to the discretion of the
Directors then in office who are not interested persons of the Fund.
Section 12. This Plan shall not obligate the Fund or any other party to
enter into an agreement with any particular person.
FIRST AMERICAN INVESTMENT FUNDS, INC.
EXHIBIT A
TO
PLAN OF DISTRIBUTION
Portfolio
Government Bond Fund _______________, 1994
Municipal Bond Fund _______________, 1994
Fixed Income Fund _______________, 1994
Intermediate Term Income Fund _______________, 1994
Limited Term Income Fund _______________, 1994
Mortgage Securities Fund _______________, 1994
Stock Fund _______________, 1994
Special Equity Fund _______________, 1994
Equity Index Fund _______________, 1994
Regional Equity Fund _______________, 1994
Asset Allocation Fund _______________, 1994
Balanced Fund _______________, 1994
Minnesota Insured Intermediate Tax Free Fund _______________, 1994
Colorado Intermediate Tax Free Fund _______________, 1994
Emerging Growth Fund _______________, 1994
Technology Fund _______________, 1994
International Fund _______________, 1994
EXHIBIT 15(b)
CLASS B DISTRIBUTION PLAN
(Contingent Deferred Sales Charge Class)
FIRST AMERICAN INVESTMENT FUNDS, INC.
WHEREAS, FIRST AMERICAN INVESTMENT FUNDS, INC. (the "Fund") is engaged in
business as an open-end investment company registered under the Investment
Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, the Directors of the Fund have determined that there is a reasonable
likelihood that the following Distribution Plan will benefit the Fund and the
owners of Class B shares of Common Stock ("Shareholders") in the Fund;
NOW, THEREFORE, the Directors of the Fund hereby adopt this Distribution Plan
pursuant to Rule 12b-1 under the 1940 Act.
Section 1. The Fund has adopted this Class B Distribution Plan ("Plan") to
enable the Fund to directly or indirectly bear expenses relating to the
distribution and sale of Class B shares (collectively, "Shares") of the
portfolios of the Fund, as now in existence or hereinafter created from time to
time (each a "Portfolio").
Section 2. The Shares of each Portfolio are authorized to pay the principal
underwriter of the Shares (the "Distributor") a total fee in connection with
distribution-related service provided in respect of such class, calculated and
payable month, at the annual rate of .75% of the value of the average daily net
assets of such class.
Section 3.
(a) The fee paid pursuant to Section 2 may be used by the Distributor to
provide initial and ongoing sales compensation to its investment executives
and to other broker-dealers in respect of sales of Shares of the applicable
Portfolios and to pay for other advertising and promotional expenses in
connection with the distribution of the Shares. These advertising and
promotional expenses include, by way of example but not by way of
limitation, costs of printing and mailing prospectuses, statements of
additional information and shareholder reports to prospective investors;
preparation and distribution of sales literature; advertising of any type;
an allocation of overhead and other expenses of the Distributor related to
the distribution of the Shares; and payments to, and expenses of, officers,
employees or representatives of the Distributor, of other broker-dealers,
banks or other financial institutions, and of any other persons who provide
support services in connection with the distribution of the Shares,
including travel, entertainment, and telephone expenses.
(b) Payments under the Plan are not tied exclusively to the expenses for
distribution related activities actually incurred by the Distributor, so
that such payments may exceed expenses actually incurred by he Distributor.
The Fund's Board of Directors will evaluate the appropriateness of the Plan
and its payment terms on a continuing basis and in doing so will consider
all relevant factors, including expenses borne by the Distributor and
amounts it receives under the Plan.
(c) The Fund's investment adviser and the Distributor may, at their option and
in their sole discretion, make payments from their own resources to cover
costs of additional distribution.
Section 4. This plan shall not take effect with respect to a Portfolio until it
has been approved (a) by a vote of at least a majority of the outstanding voting
securities of the Class B Shares of such Portfolio; and (b) together with any
related agreements, by votes of the majority of both (i) the Directors of the
Fund and (ii) the Qualified Directors, cast in person at a Board of Directors
meeting called for the purpose of voting on this Plan or such agreement.
Section 5. This Plan shall continue in effect for a period of more than one year
after it takes effect only for so long as such continuance is specifically
approved at least annually in the manner provided in Part (b) of Section 4
herein for the approval of this Plan.
Section 6. Any person authorized to direct the disposition of monies paid or
payable by the Fund pursuant to this Plan or any related agreement shall provide
to the Directors of the Fund, at least quarterly, a written report of the
amounts so expended and the purposes for which such expenditures were made.
Section 7. This Plan may be terminated at any time with respect to any Portfolio
by the vote of a majority of the Qualified Directors or by vote of a majority of
the Portfolio's outstanding Class B shares.
Section 8. All agreements with any person relating to implementation of this
Plan shall be in writing, and any agreement related to this Plan shall provide
(a) that such agreement may be terminated at any time with respect to any
Portfolio, without payment of any penalty, by the vote of a majority of the
Qualified Directors or by the vote of shareholders holding a majority of the
Portfolio's outstanding Class B shares, on not more than 60 days written notice
to any other party to the agreement; and (b) that such agreement shall terminate
automatically in the event of its assignment.
Section 9. This Plan may not be amended to increase materially the amount of
distribution expenses permitted pursuant to Section 2 hereof without the
approval of shareholders holding a majority of the outstanding Class B shares of
the applicable Portfolio, and all material amendments to this Plan shall be
approved in the manner provided in Part (b) of Section 4 herein for the approval
of this Plan.
Section 10. As used in this Plan, (a) the term "Qualified Directors" shall mean
those Directors of the Fund who are not interested persons of the Fund, and have
no direct or indirect financial interest in the operation of this Plan or any
agreements related to it, and (b) the terms "assignment" and "interested person"
shall have the respective meanings specified in the 1940 Act and the rules and
regulations thereunder, subject to such exemptions as may be granted by the
Securities and Exchange Commission.
Section 11. While this Plan is in effect, the selection and nomination of those
Directors who are interested persons of the Fund within the meaning Section 2(a)
(19) of the 1940 Act shall be committed to the discretion of the Directors then
in office who are not interested persons of the Fund.
Section 12. This Plan shall not obligate the Fund or any other party to enter
into an agreement with any particular person.
EXHIBIT 15(c)
SERVICE PLAN
[CLASS B SHARES - CONTINGENT DEFERRED SALES CHARGE CLASSES]
FIRST AMERICAN INVESTMENT FUNDS, INC.
WHEREAS, FIRST AMERICAN INVESTMENT FUNDS, INC. (the "Fund") is engaged
in business as an open-end investment company registered under the Investment
Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, the Directors of the Fund have determined that there is a
reasonable likelihood that the following Service Plan will benefit the Fund and
the owners of the Class B Shares (the "Shares") of the portfolios of the Fund:
NOW, THEREFORE, the Directors of the Fund hereby adopt this Service
Plan in accordance with the conditions contained in the multi-class exemptive
order granted by the Securities and Exchange Commission and applicable to the
Fund.
SECTION 1. The Fund has adopted this Service Plan ("Plan") to enable
the Fund to directly or indirectly bear expenses relating to the shareholder
servicing of the Shares of the Fund's portfolios as now in existence or
hereinafter created from time to time (each a "Portfolio").
SECTION 2. The Shares of each Portfolio are authorized to pay the
principal underwriter of the Shares (the "Distributor") a fee in connection with
the personal, ongoing servicing of shareholder accounts of such Shares,
calculated and payable monthly, at the annual rate of .25% of the value of the
average daily net assets of such class.
SECTION 3.
(a) The service fee payable to the Distributor pursuant to Section 2
hereof may be used by the Distributor to provide compensation for
personal, ongoing servicing and/or maintenance of shareholder
accounts with respect to the Shares of the applicable Portfolios.
Compensation may be paid by the Distributor, or any portion of the
fee may be reallowed, to persons, including employees of the
Distributor, and institutions who respond to inquiries of holders
of the Shares regarding their ownership of Shares or their
accounts with the Fund or who provide other administrative or
accounting services not otherwise required to be provided by the
Fund's investment adviser, transfer agent or other agent of the
Fund. Notwithstanding the foregoing, if the National Association
of Securities Dealers, Inc. ("NASD") adopts a definition of
"service fee" for purposes of Section 26(d) of the NASD Rules of
Fair Practice that differs from the definition of shareholder
servicing activities in this paragraph, or if the NASD adopts a
related definition intended to define the same concept, the
definition of shareholder servicing activities in this paragraph
shall be automatically amended, without further action of the
parties, to conform to such NASD definition.
(b) Payments under the Plan are not tied exclusively to the expenses
for shareholder servicing activities actually incurred by the
Distributor, so that such payments may exceed expenses actually
incurred by the Distributor. The Fund's Board of Directors will
evaluated the appropriateness of the Plan and its payment terms on
a continuing basis and in doing so will consider all relevant
factors, including expenses borne by the Distributor and amounts
it receives under the Plan.
(c) The Fund's investment adviser and the Distributor may, at their
option and in their sole discretion, make payments from their own
resources to cover costs of additional shareholder servicing
activities.
SECTION 4. This Plan shall not take effect with respect to a Portfolio
until it has been approved, together with any related agreements, by votes of
the majority of both (i) the Directors of the Fund and (ii) the Qualified
Directors, cast in person at a Board of Directors meeting called for the purpose
of voting on this Plan and such agreement.
SECTION 5. This Plan shall continue in effect for a period of more than
one year after it takes effect only for so long as such continuance is
specifically approved at least annually in the manner provided in Section 4
herein for the approval of this Plan.
SECTION 6. Any person authorized to direct the disposition of monies
paid or payable by the Fund pursuant to this Plan or any related agreement shall
provide to the Directors of the Fund, at least quarterly, a written report of
the amounts so expended and the purposes for which such expenditures were made.
SECTION 7. This Plan may be terminated at any time with respect to any
Portfolio by majority of the Qualified Directors or by vote of a majority of the
Portfolio's outstanding Shares class voting securities.
SECTION 8. All agreements with any person relating to implementation of
this Plan shall be in writing, any agreement related to this Plan shall provide
(a) that such agreement may be terminated at any time with respect to any
Portfolio, without payment of any penalty, by the vote of a majority of the
Qualified Directors or by the vote of a majority of the Portfolio's outstanding
Shares on not more than 60 days written notice to any other party to the
agreement; and (b) that such agreement shall terminate automatically in the
event of its assignment.
SECTION 9. This Plan may not be amended to increase materially the
amount of shareholder servicing expenses permitted pursuant to Section 2 hereof
without the approval of a majority of the outstanding Shares of the applicable
Portfolio, and all material amendments to this Plan shall be approved in the
manner provided in Section 4 herein for the approval of this Plan.
SECTION 10. As used in this Plan, (a) the term "Qualified Directors"
shall mean those Directors of the Fund who are not interested persons of the
Fund, and have no direct or indirect financial interest in the operation of this
Plan or any agreements related to it, and (b) the terms "assignment" and
"interested person" shall have the respective meanings specified in the 1940 Act
and the rules and regulations thereunder, subject to such exemptions as may be
granted by the Securities and Exchange Commission.
SECTION 11. While this Plan is in effect, the selection and nomination
of those Directors who are not interested persons of the Fund within the meaning
of Section 2(a) (19) of the 1940 Act shall be committed to the discretion of the
Directors then in office who are not interested persons of the Fund.
SECTION 12. This Plan shall not obligate the Fund or any other party to
enter into an agreement with any particular person.
Financial Data Schedule - (See Exhibit 27.)
EXHIBIT 19
FIRST AMERICAN INVESTMENT FUNDS, INC.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David Lee, Jean Young, and Carmen
V. Romeo, and each of them, his or her true and lawful attorneys-in-fact and
agents, each acting alone, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign a Registration Statement on Form N-1A of First American
Investment Funds, Inc., any and all amendments thereto, including post-effective
amendments, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, each acting alone, full power and
authority to do and perform to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or the substitutes for such
attorneys-in-fact and agents, may lawfully do or cause to be done by virtue
hereof.
Signature Title Date
/s/ Robert J. Dayton Director September 14, 1994
Robert J. Dayton
/s/ Welles B. Eastman Director September 14, 1994
Welles B. Eastman
/s/ Irving D. Fish Director September 14, 1994
Irving D. Fish
/s/ Leonard W. Kedrowski Director September 14, 1994
Leonard W. Kedrowski
/s/ Joseph D. Strauss Director September 14, 1994
Joseph D. Strauss
/s/ Virginia L. Stringer Director September 14, 1994
Virginia L. Stringer
/s/ Gae B. Veit Director September 14, 1994
Gae B. Veit
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<NAME> FIRST AMERICAN INVESTMENT FUNDS, INC.
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<NAME> LIMITED VOLATILITY STOCK FUND INSTITUTIONAL CLASS C
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