EX-99.e.5 DLR AGREE
[EXHIBIT (e)(5)]
FIRST AMERICAN INVESTMENT FUNDS, INC.
And FIRST AMERICAN FUNDS, INC.
SEI INVESTMENTS DISTRIBUTION CO.
SUB-DISTRIBUTION AND SERVICING AGREEMENT
___________, 2000
Ladies and Gentlemen:
SEI Investments Distribution Co., a Pennsylvania corporation serves as
distributor (the "Distributor") of First American Investment Funds, Inc. and
First American Funds, Inc. (each a "Fund", collectively, the "Funds"), 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(es). 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 each Fund 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 Class
A (front-end sales charge), Class B (contingent deferred sales charge) and Class
C (level-load) Retail 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 Fund 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 by your business or any personnel
employed by you) as may be reasonably necessary or beneficial to provide such
services.
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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 prospectuses of the Fund.
The Fund and the Distribution 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 prospectuses
of the Fund and the Distribution's 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 the
Distributor 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 THE 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 prospectuses 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 (including, but not limited to distribution
fees) 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 and paid in accordance with the applicable distribution
and/or shareholder service plans adopted by the Fund. You acknowledge any
compensation to be paid to you by the Distributor shall be paid from the
distribution and/or shareholder service plans adopted by the Fund and that to
the extent the Distributor waives any payments to it from any such plan the
amounts payable to you will also be reduced.
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 Prospectuses 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 Conduct Rules of the NASD 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 purposes whatsoever unless
authorized by the then current
13
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 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"
or "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 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 each 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 contractor, 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 for 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. We may modify this agreement at any time by written
notice to you. The first order placed by you subsequent to the giving of such
notice shall be deemed as your acceptance of such modification.
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 by
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 each Fund and the
Distributor or by the vote of a majority of the outstanding voting securities of
the Fund.
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13. Communications. All communications to the Distributor should be
sent to SEI Investments Distribution Co., Xxxx, Xxxxxxxxxxxx 00000, Attention:
First American Funds. 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 both copies of this agreement.
SEI INVESTMENTS DISTRIBUTION CO.
---------------------------------
(Authorized Signature)
President
Confirmed and accepted:
FIRM NAME:
--------------------------
By:
---------------------------------
(Authorized Signature)
Title:
------------------------------
Address:
----------------------------
Date:
-------------------------------
15
FIRST AMERICAN INVESTMENT FUNDS, INC.
And FIRST AMERICAN FUNDS, INC.
SEI INVESTMENTS DISTRIBUTION CO.
SUB-DISTRIBUTION AND SERVICING AGREEMENT
________, 2000
Gentlemen:
SEI Investments Distribution Co., a Pennsylvania corporation (the
"Distributor"), serves as distributor of the First American Investment Funds,
Inc. and First American Funds, Inc. (each a "Fund", collectively, the "Funds"),
which is an open-end investment company registered under the Investment Company
Act of 1940, as amended (the "1940 Act"). The Fund offers its shares ("Shares")
to the public in accordance with the terms and conditions contained in the
Fund's Prospectus(es). 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 Fund 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 Class
Y Shares ("Shares") of the portfolios of the Fund and to transmit to the Fund
such orders and the payment made therefore, (ii) to accept orders for the
redemption of Shares and to transmit to the Fund such orders and all additional
material 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
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 further 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 Fund 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 by 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
16
asset value per Share) 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 Fund. The Fund and
the Distributor 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 prospectuses of the Fund
and the Distributor's 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 the Distributor
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, any portfolio of the Fund, or the Shares
except those contained in the Prospectus 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 THE 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 Customer, and you acknowledge that
the Fund and the Distributor shall have no direct responsibility for any
compensation due to you.
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 Prospectuses 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 Conduct Rules of the NASD 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 purposes 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 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
17
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"
or "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 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 each 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 contractor, 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 for 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. We may modify this agreement at any time by written
notice to you. The first order placed by you subsequent to the giving of such
notice shall be deemed as your acceptance of such modification.
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 by
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 each 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 Investments Distribution Co., Xxxx, Xxxxxxxxxxxx 00000, Attention:
First American Funds. 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.
18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us both copies of this Agreement.
SEI INVESTMENTS DISTRIBUTION CO.
---------------------------------
(Authorized Signature)
President
Confirmed and accepted:
Firm Name:
--------------------------
By:
---------------------------------
(Authorized Signature)
Title:
------------------------------
Address:
----------------------------
Date:
-------------------------------
19
