EXHIBIT (5)
FIRST AMERICAN FUNDS, INC.
INVESTMENT ADVISORY AGREEMENT
This Agreement, made this 20th day of January, 1995, by and between
First American Funds, Inc., a Minnesota 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, and
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 so 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
represented 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 FUNDS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
Its Vice President
FIRST BANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxx
Its Senior Vice President
FIRST AMERICAN FUNDS, INC.
EXHIBIT A
TO
INVESTMENT ADVISORY AGREEMENT
EFFECTIVE DATES:
Portfolio Effective Date
Prime Obligations Fund January 20, 1995
Government Obligations Fund January 20, 1995
Treasury Obligations Fund January 20, 1995
ADVISORY FEES: Annual Advisory Fee
as a Percentage of
Portfolio Average Daily Net Assets
Prime Obligations Fund 0.40%
Government Obligations Fund 0.40%
Treasury Obligations Fund 0.40%
