Exhibit (d)(i)
FORM OF
Fifth Third Funds
INVESTMENT ADVISORY CONTRACT
This Contract is made between Fifth Third Asset Management
Inc., (the "Advisor"), and Fifth Third Funds, a Massachusetts business
trust having its principal place of business in Columbus, Ohio (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, the Advisor 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:
1. The Trust hereby appoints Advisor as Investment Advisor for
each of the portfolios ("Funds") of the Trust on whose behalf the Trust
executes an exhibit to this Contract, and Advisor, by its execution of
each such exhibit, accepts the appointments. Subject to the direction
of the Trustees of the Trust, Advisor 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.
2. Advisor, 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.
3. 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
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.
4. The Trust, on behalf of each of the Funds shall pay to
Advisor, for all services rendered to such Fund by Advisor hereunder,
the fees set forth in the exhibits attached hereto.
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5. The Advisor 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 the Advisor may, by notice to the Fund, voluntarily
declare to be effective.
6. 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) Advisor 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.
7. 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
Advisor.
8. (a) This Contract may not be assigned by Advisor and shall
automatically terminate in the event of any assignment. Advisor 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.
(b) Notwithstanding any provision in this Contract, with respect
to the Funds, Advisor may, consistent with the terms of the application
for an exemptive order filed with the Securities and Exchange
Commission on February 5, 2003 and upon receipt of such exemptive
order, employ a manager of managers structure. This manager of managers
structure permits Advisor, subject to approval by the Board of Trustees
of the Trust, to hire any Subadvisor and materially amend any
subadvisory contract without obtaining shareholder approval.
9. In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties under this
Contract on the part of Advisor, Advisor 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.
10. (a) Subject to the conditions set forth below, the Trust
agrees to indemnify and hold harmless the Advisor and each person, if
any, who controls the Advisor 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 the Advisor by or on behalf of
the Advisor expressly for use in the Registration Statement or
Prospectus, or any amendment or supplement thereof.
If any action is brought against the Advisor or any controlling
person thereof in respect of which indemnity may be sought against the
Trust pursuant to the foregoing paragraph, the Advisor shall promptly
notify the Trust in writing of the institution of such action and the
Trust shall assume the defense of such
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action, including the employment of counsel selected by the Trust and
payment of expenses. The Advisor 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 the Advisor 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 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 the Advisor of the commencement of any
litigation or proceedings 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.
(b) The Advisor 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 the Advisor 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 the Advisor by or on behalf of the Advisor
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 the
Advisor, the Advisor 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 the Advisor by the provisions of
subsection (a) above.
(c) 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.
11. 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.
12. The Advisor acknowledges that all sales literature for
investment companies (such as the Trust) are subject to strict
regulatory oversight. The Advisor agrees to submit any proposed sales
literature for the Trust (or any 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
Advisor 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.
13. Advisor 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 Advisor shall not
seek satisfaction of any such obligation from the assets of any other
Fund, the shareholders of any Fund, the Trustees, officers, employees
or agents of the Trust, or any of them.
14. This Contract shall be construed in accordance with and
governed by the laws of the Commonwealth of Pennsylvania.
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15. This Contract will become binding on the parties hereto upon
their execution of the attached exhibits to this Contract.
Witness the due execution hereof this ___ day of _____________________,
2003.
Fifth Third Asset Management Inc.
By:___________________
Xxxxx Xxxxx
Title: President
Fifth Third Funds
By:___________________
Xxxxxx X. Xxxxxx
Title: Vice President
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