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Exhibit 5(iii)
FOUNTAIN SQUARE PINNACLE FUND
INVESTMENT ADVISORY CONTRACT
THIS CONTRACT is made between Heartland Capital Management, Inc.
("Heartland"), an Indiana corporation having its principal place of business in
Indianapolis, Indiana and which is a wholly owned subsidiary of Fifth Third
Bancorp, an Ohio corporation, and Fountain Square Funds, a Massachusetts
business trust having its principal place of business in Pittsburgh,
Pennsylvania (the "Trust").
WHEREAS, the Trust is an open-end management investment company as that
term is defined in the Investment Company Act of 1940 and is registered as such
with the Securities and Exchange Commission; and
WHEREAS, Heartland is engaged in the business of rendering investment
advisory and management services.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
i. The Trust hereby appoints Heartland as Investment Adviser for
each of the portfolios ("Funds") of the Trust on whose behalf the
Trust executes an exhibit to this Contract, and Heartland, by its
execution of each such exhibit, accepts the appointments. Subject to
the direction of the Trustees of the Trust, Heartland shall provide
investment research and supervision of the investments of each of the
Funds and conduct a continuous program of investment evaluation and of
appropriate sale or other disposition and reinvestment of each Fund's
assets.
ii. Heartland, in its supervision of the investments of each of the
Funds will be guided by each of the Fund's fundamental investment
policies and the provisions and restrictions contained in the
Declaration of Trust and By-Laws of the Trust and as set forth in the
Registration Statement and exhibits as may be on file with the
Securities and Exchange Commission.
iii. The Trust shall pay or cause to be paid, on behalf of each Fund,
all of the Fund's expenses and the Fund's allocable share of Trust
expenses, including without limitation, the expenses of organizing the
Trust and continuing its existence; fees and expenses of officers and
Trustees of the Trust; fees for investment advisory services and
administrative services; fees and expenses of preparing and printing
amendments to its Registration Statement under the Securities Act of
1933 and the Investment Company Act of 1940; expenses of registering
and qualifying the Trust, the Funds and shares of the Funds ("Shares")
under Federal and state laws and regulations; expenses of preparing,
printing and distributing prospectuses (and any
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amendments thereto) and sales literature; expenses of registering,
licensing, or other authorization of the Trust as a broker-dealer and
of its officers as agents and salesmen under federal and state laws
and regulations; interest expense, taxes, fees and commissions of
every kind; expenses of issue (including cost of Share certificates),
purchase, repurchase and redemption of Shares, including expenses
attributable to a program of periodic issue; charges and expenses of
custodians, transfer agents, dividend disbursing agents, shareholder
servicing agents and registrars; printing and mailing costs, auditing,
accounting and legal expenses; reports to shareholders and
governmental officers and commissions; expenses of meetings of
Trustees and shareholders and proxy solicitations therefor; insurance
expenses; association membership dues; and such nonrecurring items as
may arise, including all losses and liabilities incurred in
administering the Trust and the Funds. The Trust will also pay each
Fund's allocable share of such extraordinary expenses as may arise,
including expenses incurred in connection with litigation,
proceedings, and claims and the legal obligations of the Trust to
indemnify its officers and Trustees and agents with respect thereto.
iv. The Trust, on behalf of each of the Funds shall pay to Heartland,
for all services rendered to such Funds by Heartland hereunder, the
fees set forth in the exhibits attached hereto.
v. Heartland may from time to time and for such periods as it deems
appropriate reduce its compensation (and, if appropriate, assume
expenses of one or more of the Funds); (i) to the extent that any
Fund's expenses exceed such lower expense limitation; (ii) for any
other reason, as Heartland may, by notice to the Fund, voluntarily
declare to be effective.
vi. This Contract shall begin for each Fund on the date that the
Trust executes an exhibit to this Contract relating to such Fund. This
Contract shall remain in effect for each Fund until the first meeting
of Shareholders held after the execution date of an exhibit relating
to the respective Fund, and if approved at such meeting by the
shareholders of a particular Fund, shall continue in effect for such
Fund for two years from the date of its execution and from year to
year thereafter, subject to the provisions for termination and all of
the other terms and conditions hereof if: (a) such continuation shall
be specifically approved at least annually by the vote of a majority
of the Trustees of the Trust, including a majority of the Trustees who
are not parties to this Contract or interested persons of any such
party (other than as Trustees of the Trust) cast in person at a
meeting called for that purpose; and (b) Heartland shall not have
notified the Trust in writing at least sixty (60) days prior to the
anniversary date of this Contract in any year thereafter that it does
not desire such continuation with respect to that Fund.
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vii. Notwithstanding any provision in this Contract, it may be
terminated at any time with respect to any Fund, without the payment
of any penalty, by the Trustees of the Trust or by a vote of the
shareholders of that Fund on sixty (60) days' written notice to
Heartland.
viii. This Contract may not be assigned by Heartland and shall
automatically terminate in the event of any assignment. Heartland may
employ or contract with such other person, persons, corporation or
corporations at its own cost and expense as it shall determine in
order to assist it in carrying out this Contract, provided that no
delegation of advisory responsibilities shall occur which would
require approval under the Investment Company Act of 1940.
ix. In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties under this
Contract on the part of Heartland, Heartland shall not be liable to
the Trust or to any of the Funds or to any shareholder for any act or
omission in the course of or connected in any way with rendering
services or for any losses that may be sustained in the purchase,
holding or sale of any security.
x. Subject to the conditions set forth below, the Trust agrees to
indemnify and hold harmless Heartland and each person, if any, who
controls Heartland within the meaning of Section 15 of the 1933 Act
and Section 20 of the Securities Exchange Act of 1934, as amended,
against any and all loss, liability, claim, damage and expense
whatsoever, (including but not limited to any and all expense
whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any
claim whatsoever) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as from time to time amended
and supplemented) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
statements therein not misleading, unless such statement or omission
was made in reliance upon and conformity with written information
furnished to the Trust with respect to Heartland by or on behalf of
Heartland expressly for use in the Registration Statement or
Prospectus, or any amendment or supplement thereof.
If any action is brought against Heartland or any controlling person
thereof in respect of which indemnity may be sought against the Trust pursuant
to the foregoing paragraph, Heartland shall promptly notify the Trust in writing
of the institution of such action and the Trust shall assume the defense of such
action, including the employment of counsel selected by the Trust and payment of
expenses. Heartland or any such controlling person thereof shall have the right
to employ separate counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of Heartland or such controlling person unless
the employment of such counsel shall have been authorized in writing by the
Trust in connection with the defense of such action or the Trust shall
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not have employed counsel to have charge of the defense of such action, in any
of which events such fees and expenses shall be borne by the Trust. Anything in
this paragraph to the contrary notwithstanding, the Trust shall not be liable
for any settlement of any such claim or action effected without its written
consent. The Trust agrees promptly to notify Heartland of the commencement of
any litigation or proceeding against the Trust or any of its officers or
Trustees or controlling persons in connection with the issue and sale of shares
or in connection with such Registration Statement or Prospectus.
(1) Heartland agrees to indemnify and hold harmless the
Trust, each of its Trustees, each of its officers who have
signed the Registration Statement and each other person, if
any, who controls the Trust within the meaning of Section 15
of the 1933 Act, to the same extent as the foregoing
indemnity from the Trust to Heartland but only with respect
to statements or omissions, if any, made in the Registration
Statement or Prospectus or any amendment or supplement
thereof in reliance upon, and in conformity with,
information furnished to the Trust with respect to Heartland
by or on behalf of Heartland expressly for use in the
Registration Statement or Prospectus or any amendment or
supplement thereof. In case any action shall be brought
against the Trust or any other person so indemnified based
on the Registration Statement or Prospectus, or any
amendment or supplement thereof, and in respect of which
indemnity may be sought against Heartland, Heartland shall
have the rights and duties given to the Trust, and the Trust
and each other person so indemnified shall have the rights
and duties given to Heartland by the provisions of
subsection (a) above.
(2) Nothing herein contained shall be deemed to protect any
person against liability to the Trust or its shareholders to
which such person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of the duties of such person or by reason of the
reckless disregard by such person of the obligations and
duties of such person under this Contract.
xi. This Contract may be amended at any time by agreement of the
parties provided that the amendment shall be approved both by the vote
of a majority of the Trustees of the Trust, including a majority of
Trustees who are not parties to this Contract or interested persons of
any such party to this Contract (other than as Trustees of the Trust),
cast in person at a meeting called for that purpose, and on behalf of
a Fund by a majority of the outstanding voting securities of such
Fund.
xii. Heartland acknowledges that all sales literature for investment
companies (Such as the Trust) are subject to strict regulatory
oversight. Heartland agrees to submit any proposed sales literature
for the Trust (or any
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Fund) or for itself or its affiliates which mentions the Trust (or any
Fund) to the Trust's distributor for review and filing with the
appropriate regulatory authorities prior to the public release of any
such sales literature. The Trust agrees to cause its distributors to
promptly review all such sales literature to ensure compliance with
relevant requirements, to promptly advise Heartland of any
deficiencies contained in such sales literature, to promptly file
complying sales literature with the relevant authorities, and to cause
such sales literature to be distributed to prospective investors in
the Trust.
xiii. Heartland is hereby expressly put on notice of the limitation of
liability as set forth in Article XI of the Declaration of Trust and
agrees that the obligations pursuant to this Contract of a particular
Fund and of the Trust with respect to that particular Fund be limited
solely to the assets of that particular Fund, and Heartland shall not
seek satisfaction of any such obligation form the assets of any other
Fund, the shareholders of any Fund, the Trustees, officers, employees
or agents of the Trust, or any of them.
xiv. This Contract shall be construed in accordance with and governed
by the laws of the State of Ohio.
xv. This Contract will become binding on the parties hereto upon
their execution of the attached exhibits to this Contract.
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Exhibit A
to the
Investment Advisory Contract
between
Heartland Capital Management, Inc.
and
Fountain Square Funds
FOUNTAIN SQUARE PINNACLE FUND
For all services rendered by Heartland hereunder, the Trust shall pay
to Heartland and Heartland agrees to accept as full compensation for all
services rendered hereunder, an annual investment advisory fee equal to 0.80 of
1% of the average daily net assets of the Fund.
The fee shall be accrued daily at the rate of 1/365th of 0.80 of 1%
applied to the daily net assets of the Fund.
The advisory fee so accrued shall be paid to Heartland daily.
Witness the due execution hereof this 21st day of January, 1998.
HEARTLAND CAPITAL MANAGEMENT, INC.
/s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Executive Vice President
FOUNTAIN SQUARE FUNDS
________________________ /s/ XXXXXXX X. XXXXXX
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Secretary Xxxxxxx X. Xxxxxx
President
