Fifth Third Funds
INVESTMENT ADVISORY CONTRACT
This Contract is made between Fifth Third Asset Management, an Ohio
corporation (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 shown on Schedule A, hereto. 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;
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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 whereunder, the fees set forth in the
exhibits attached hereto.
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. 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.
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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 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
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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.
15. This Contract will become binding on the parties hereto upon their
execution of the attached exhibits to this Contract.
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SCHEDULE A
TO THE
INVESTMENT ADVISORY CONTRACT
Funds:
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Fifth Third Strategic Income Fund
Fifth Third Worldwide Fund
Fifth Third Microcap Value Fund
Fifth Third Multicap Value Fund
Compensation:
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For all services rendered by Advisor hereunder, the Trust shall
pay to Advisor and Advisor agrees to accept as full compensation
for all services rendered hereunder, an annual investment
advisory fee equal to 1% of the average daily net assets of the
Funds.
The fee shall be accrued daily at the rate of 1/365th of 1%
applied to the daily net assets of the Fund.
The advisory fee so accrued shall be paid to Advisor daily.
Witness the due execution hereof this 13th day of March,
2001.
Attest: Fifth Third Asset Management
By:
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Name:
Title:
FIFTH THIRD FUNDS
By:
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Xxxxxxx Xxxxxx
Vice President
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