Form of Sub-Advisory Agreement for the Fifth Third International Equity Fund
(d)(iii)
FOUNTAIN SQUARE FUNDS
SUB-ADVISORY AGREEMENT
THIS AGREEMENT is made between FIFTH THIRD ASSET MANAGEMENT INC., a state
chartered bank (hereinafter referred to as "Adviser") and XXXXXX XXXXXXX ASSET
MANAGEMENT, INC., a Delaware corporation located in New York, New York,
(hereinafter referred to as the "Sub- Adviser"), and approved by Fountain Square
Funds a business trust organized under the laws of the state of Massachusetts
(the "Trust").
WITNESSETH:
That the parties hereto, intending to be legally bound hereby agree as
follows:
1. The Adviser is the investment adviser to the Fifth Third International
Equity Fund (the "Fund"), a portfolio of the Trust, under the Investment
Advisory Contract between the Trust and the Adviser (the "Investment Advisory
Contract"). The Sub- Adviser hereby agrees to furnish to the Adviser such
investment advice, statistical and other factual information, as may from time
to time be reasonably requested by Adviser for the Fund which may be offered in
one or more classes of shares ("Classes").
Sub-Adviser agrees to furnish such other services as follows:
a) Annual presentation to the Trustees at a regular quarterly board
meeting.
b) Quarterly visits with the Adviser for presentations to prospects
and clients by either the manager or a mutually agreeable
representative.
c) Provide quarterly written reports on details and strategies of
the Fund, and telephone consultation with the Advisers as needed.
d) Provide the Trustees of the Trust with such information
concerning the Fund and Sub-Adviser's performance hereunder as
the Trustees may from time to time reasonably request.
2. For its services under this Agreement, Sub-Adviser shall receive from
Adviser an annual fee ("the Sub-Advisory Fee"), as set forth in Exhibit "A"
hereto.
3. This Agreement shall begin as of the date that the Fund becomes
effective (the "Effective Date") and shall continue in effect for the Fund for
two (2) years from the Effective Date. Thereafter, this Agreement shall continue
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 Agreement 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) Adviser shall not have notified
the Trust in writing at least sixty (60) days prior to the anniversary date of
this Agreement in any year thereafter that it does not desire its Advisory
Agreement to continue with respect to the Fund.
4. Notwithstanding any provision in this Agreement, this Agreement may be
terminated without the payment of any penalty: (a) by the Trustees of the Trust
or by a vote of a majority of the outstanding voting securities (as defined in
Section 2(a) (42) of the Act) of the Fund on sixty (60) days' written notice to
Sub-Adviser; or (b) by either the Adviser or Sub-Adviser upon six (6) months
written notice to the other party to the Agreement, after eighteen (18) months
from the effective date of this Agreement.
5. This Agreement shall automatically terminate: (a) in the event of its
assignment (as defined in the Investment Company Act of 1940); or (b) in the
event of termination of the Investment Advisory Contract for any reason
whatsoever.
6. This Agreement may be amended from time to time by agreement of the
parties hereto, provided that such amendment shall be approved both by the vote
of a majority of Trustees of the Trust, including a majority of Trustees who are
not parties to this Agreement or interested persons, as defined in Section 2(a)
(19) of the Investment Company Act of 1940, of any such party at a meeting
called for that purpose, and, where required by Section 15(a) (2) of the Act, by
the holders of a majority of the outstanding voting securities (as defined in
Section 2(a) (42) of the Investment Company Act of 1940) of the Fund.
7. The Sub-Advisor agrees that during the existence of this Agreement, it
will not advise or sub-advise any bank proprietary mutual fund that is
substantially the same in its investment approach and discipline to that of the
Fountain Square International Equity Fund and that is sponsored by a bank whose
operations are primarily located in Ohio, Indiana or Kentucky. Banks subject to
this provision and under common ownership of a parent holding company include
those directly or indirectly owned by the following: Star Banc Corp., Provident
Bancorp, Bank One Corp, PNC Bancorp, Huntington Bancshares, Society/Key Corp,
NBD Bancorp and National City; however, if any of these are acquired by a
national bank outside Ohio, Indiana and Kentucky then such exclusivity shall not
be applicable.
8. Sub-Adviser agrees to keep confidential all information with respect
to customers and potential customers of the Trusts and the Adviser. The Sub-
Adviser agrees that during the existence of this Agreement and for a one year
period following the termination of this Agreement, it will not use any of the
information it obtains in association with the Trust and Adviser to solicit or
contact for its own benefit or the benefit of its related and affiliated
companies any of the Trust and Adviser's customers. Notwithstanding the above,
the parties recognize that the Sub-Adviser has representatives, unrelated to the
individuals involved herein, who actively call and solicit business from
organizations within Ohio, Indiana and Kentucky.
9. This Agreement may not be assigned by Sub-Adviser and shall
automatically terminate in the event of any assignment. Sub-Adviser may employ
or contract with such other person(s) and corporation(s) at its own cost and
expense as it shall determine in order to assist it in carrying out this
Agreement, provided that no delegation of advisory responsibilities shall occur
which would require approval under the Investment Company Act of 1940.
10. In the absence of willful misfeasance, bad faith, or reckless
disregard of obligations or duties under this Agreement on the part of Sub-
Adviser, Sub-Adviser shall not be liable to the Trust or to the Fund 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.
11. (a) Subject to the conditions set forth below, the Adviser agrees to
indemnify and hold harmless the Sub-Adviser and each person, if any, who
controls the Sub-Adviser 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 Sub-Adviser by or on behalf of the
Sub-Adviser expressly for use in the Registration Statement or Prospectus, or
any amendment or supplement thereof.
If any action is brought against the Sub-Adviser or any controlling person
thereof in respect of which indemnity may be sought against the Adviser pursuant
to the foregoing paragraph, the Sub-Adviser shall promptly notify the Adviser in
writing of the initiation of such action and the Adviser shall assume the
defense of such action, including the employment of counsel selected by the
Adviser and payment of expenses. The Sub-Adviser 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 Sub-Adviser
or such controlling person unless the employment of such counsel shall have been
authorized in writing by the Adviser in connection with the defense of such
action. Anything in this paragraph to the contrary notwithstanding, the Adviser
shall not be liable for any settlement of any such claim or action effected
without its written consent. The Adviser agrees promptly to notify the Sub-
Adviser of the commencement of any litigation or proceedings against the Adviser
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 Sub-Adviser agrees to indemnify and hold harmless the Trust and
Adviser, each of its Trustees, each of their officers who have signed the
Registration Statement and each other person, if any, who controls the Trust or
Adviser within the meaning of Section 15 of the 1933 Act, to the same extent as
the foregoing indemnity from the Trust and Adviser to the Sub-Adviser 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 or Adviser with
respect to the sub-Adviser by or on behalf of the Sub-Adviser 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, Adviser 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 Sub-Adviser, the Sub-Adviser shall have the rights,
obligations and duties to the Trust and Adviser and each other person so
indemnified as given 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
Agreement.
12. The Sub-Adviser hereby expressly authorizes the Trust and Adviser the
right to use the "Xxxxxx Xxxxxxx" name in its sales literature and
advertisements pertaining to the Fund. The Trust and Adviser expressly authorize
the Sub-Adviser the right to use the Trust and the Fund name in its sales
literature and advertisements. Notwithstanding the preceding, the Parties
acknowledge that all sales literature for investment companies (such as the
Trust) are subject to strict regulatory oversight. The Sub-Adviser agrees to
submit any proposed sales literature for the Trust or for itself or its
affiliates which mentions the Trust or 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 Adviser agrees to submit any
proposed sales literature for the Trust or for itself or its affiliates which
mentions the "Xxxxxx Xxxxxxx" name to the Sub-Adviser for review and approval
prior to the public release of any such sales literature. The Adviser and Sub-
Adviser agree to promptly review all such sales literature to ensure compliance
with relevant requirements, to promptly advise the other 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. Sub-Adviser 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 Agreement with respect to the Fund be limited
solely to the assets of the Fund, and Sub-Adviser shall not seek satisfaction of
any such obligation from the assets of the Trust, any other Fund, the
shareholders of the Fund, the Trustees, officers, employees or agents of the
Trust, or any of them.
14. This Agreement shall be construed in accordance with and governed by
the laws of the State of Ohio.
15. The Effective Date of this Agreement shall be the date the Fund
becomes effective and begins selling shares to the public. The Agreement will
become binding on the parties hereto upon their execution herein.
FIFTH THIRD ASSET MANAGEMENT INC. XXXXXX XXXXXXX
ASSET MANAGEMENT, INC.
By: ______________ By: ____________________
Title: Vice President Title: Managing Director
Date: ________ Date:______
EXHIBIT A
FIFTH THIRD INTERNATIONAL EQUITY FUND
Sub-Adviser Fee Schedule
The Sub-Adviser (Xxxxxx Xxxxxxx Asset Management) for services under the Sub-
Advisory Agreement shall be paid an annual investment advisory fee equal to .50
of 1% of the Funds average daily net assets.
The fee shall be accrued daily at the rate of 1/365th of .50 of 1% applied to
the daily net assets of the Fund and paid monthly on the last day of each month.
