Exhibit (e)(i)
FORM OF
DISTRIBUTION AGREEMENT
AGREEMENT made this 29th day of September, 2005, between Fifth Third Funds
(the "Trust"), having an office at 0000 Xxxxxxx Xxxx, Xxxxxxxx XX 00000, and
Fifth Third Funds Distributor, Inc. ("Distributor"), having an office at 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, the Trust is an open-end management investment company, organized
as a Massachusetts business trust and registered with the Securities and
Exchange Commission (the "Commission") under the Investment Company Act of 1940,
as amended (the "1940 Act"); and
WHEREAS, it is intended that Distributor act as the distributor of the
shares of beneficial interest ("Shares") of each series of the Trust, as listed
on Schedule A, and such series as are hereafter created (all of the foregoing
series individually referred to herein as a "Fund" and collectively as the
"Funds");
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services as Distributor.
1.1 Distributor will act as agent of the Trust on behalf of each Fund for
the distribution of the Shares covered by the registration statement of the
Trust then in effect under the Securities Act of 1933, as amended (the
"Securities Act") and the 1940 Act. As used in this Agreement, the term
"registration statement" shall mean the registration statement of the Trust and
any amendments thereto, then in effect, including Parts A (the Prospectus), B
(the Statement of Additional Information) and C of each registration statement,
as filed on Form N-1A, or any successor thereto, with the Commission, together
with any amendments thereto. The term "Prospectus" shall mean the then-current
form of Prospectus and Statement of Additional Information used by the Funds, in
accordance with the rules of the Commission, for delivery to shareholders and
prospective shareholders after the effective dates of the above-referenced
registration statements, together with any amendments and supplements thereto.
1.2 Consistent with the understanding between the Funds and the
Distributor, Distributor may solicit orders for the sale of the Shares and may
undertake such advertising and promotion as it believes reasonable in connection
with such solicitation. The Trust understands that Distributor is now and may in
the future be the distributor of the shares of many other investment companies
or series, including investment companies having investment objectives similar
to those of the Trust. The Trust further understands that shareholders and
potential shareholders in the Trust may invest in shares of such other
investment companies. The Trust agrees that Distributor's duties to other
investment companies shall not be deemed in conflict with its duties to the
Trust under this Section 1.2.
1.3 Consistent with the understanding between the Funds and the
Distributor, and subject to the last sentence of this Section 1.3, Distributor
may engage in such
activities as it deems appropriate in connection with the promotion and sale of
the Shares, which may include advertising, compensation of underwriters, dealers
and sales personnel, the printing and mailing of Prospectuses to prospective
shareholders other than current shareholders, and the printing and mailing of
sales literature. Distributor may enter into dealer agreements and other selling
agreements with broker-dealers and other intermediaries; provided, however, that
Distributor shall have no obligation to make any payments to any third parties,
whether as finder's fees, compensation or otherwise, unless such payment is a
front-end sales load as referenced in Section 3.1 of this Agreement or (i)
Distributor has received a corresponding payment or will be reimbursed from the
applicable Fund's Distribution Plan (as defined in Section 2 of this Agreement),
the Fund's investment adviser (the "Adviser") or from another source as may be
permitted by applicable law, and (ii) such corresponding payment has been
approved by the Trust's Board of Trustees.
1.4 In its capacity as distributor of the Shares, all activities of the
Distributor and its partners, agents, and employees shall comply with all
applicable laws, rules and regulations, including, without limitation, the 1940
Act, all applicable rules and regulations promulgated by the Commission
thereunder, and all applicable rules and regulations adopted by any securities
association registered under the Securities Exchange Act of 1934.
1.5 Whenever in their judgment such action is warranted by unusual market,
economic or political conditions or by abnormal circumstances of any kind, the
Trust's officers may upon reasonable notice instruct the Distributor to decline
to accept any orders for or make any sales of the Shares until such time as
those officers deem it advisable to accept such orders and to make such sales.
1.6 The Trust agrees to inform the Distributor from time to time of the
states in which the Fund or its administrator has registered or otherwise
qualified shares for sale, and the Trust agrees at its own expense to execute
any and all documents and to furnish any and all information and otherwise to
take all actions that may be reasonably necessary in connection with the
qualification of the Shares for sale in such states as the administrator for the
Funds may designate.
1.7 The Trust shall furnish from time to time, for use in connection with
the sale of the Shares, such supplemental information with respect to the Funds
and the Shares as Distributor may reasonably request; and the Trust warrants
that the statements contained in any such supplemental information will fairly
show or represent what they purport to show or represent. The Trust shall also
furnish Distributor upon request with: (a) unaudited semi-annual statements of
the Funds' books and accounts prepared by the Trust, (b) a monthly itemized list
of the securities in the Funds, (c) monthly balance sheets as soon as
practicable after the end of each month, and (d) from time to time such
additional information regarding the financial condition of the Funds as the
Distributor may reasonably request.
1.8 The Trust represents and warrants to Distributor that all registration
statements, and each Prospectus, filed by the Trust with the Commission under
the Securities Act and the 1940 Act shall be prepared in conformity with
requirements of said
Acts and rules and regulations of the Commission thereunder. The registration
statement and Prospectus shall contain all statements required to be stated
therein in conformity with said Acts and the rules and regulations of the
Commission thereunder, and all statements of fact contained in any such
registration statement and Prospectus are true and correct in all material
respects. Furthermore, neither any registration statement nor any Prospectus
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading to a purchaser of the Shares. The foregoing representations and
warranties shall continue throughout the term of this Agreement and be deemed to
be of a continuing nature, applicable to all Shares distributed hereunder. The
Distributor may, but shall not be obligated to, propose from time to time such
amendment or amendments to any registration statement and such supplement or
supplements to any Prospectus as, in the light of future developments, may, in
the opinion of the its counsel, be necessary to prevent such documents from
being false and misleading. If the Trust shall not propose any amendment or
amendments and/or supplement or supplements within fifteen days after receipt by
the Trust of a written and reasonable request from Distributor to do so,
Distributor may, at its option, terminate this Agreement. In such case, the
Distributor will be held harmless from, and indemnified by Trust for, any
liability or loss resulting from the failure to implement such amendment. The
Trust shall not file any amendment to any registration statement or supplement
to any Prospectus without giving Distributor reasonable notice thereof;
provided, however, that nothing contained in this Agreement shall in any way
limit the Trust's right to file at any time such amendments to any registration
statement and/or supplements to any Prospectus, of whatever character, as the
Trust may deem advisable, such right being in all respects absolute and
unconditional.
1.9 The Trust authorizes the Distributor and dealers to use any Prospectus
in the form furnished by the Trust from time to time in connection with the sale
of the Shares.
1.10 The Distributor may utilize agents in its performance of its services
and, with prior notice to the Trust, appoint in writing other parties qualified
to perform specific administration services reasonably acceptable to the Trust
(individually, a "Sub-Agent") to carry out some or all of its responsibilities
under this Agreement; provided, however, that a Sub-Agent shall be the agent of
the Distributor and not the agent of the Trust, and that the Distributor shall
be fully responsible for the acts of such Sub-Agent and shall not be relieved of
any of its responsibilities hereunder by the appointment of a Sub-Agent.
1.11 The Distributor shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Trust in connection with the
matters to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or negligence on the Distributor's part in the
performance of its duties, from reckless disregard by the Distributor of its
obligations and duties under this Agreement, or from the Distributor's failure
to comply with laws, rules and regulations applicable to it in
connection with its activities hereunder. The Trust agrees to indemnify, defend
and hold harmless the Distributor, its officers, partners, employees, and any
person who controls
the Distributor within the meaning of Section 15 of the Securities Act
(collectively, "Distributor Indemnitees"), from and against any and all claims,
demands, liabilities and expenses (including the reasonable cost of
investigating or defending such claims, demands or liabilities and any
reasonable counsel fees incurred in connection therewith) (collectively,
"Claims") which the Distributor Indemnitees may incur under the Securities Act
or under common law or otherwise (a) as the result of the Distributor acting as
distributor of the Funds and entering into selling agreements, participation
agreements, shareholder servicing agreements or similar agreements with
financial intermediaries on behalf of the Trust, unless as a result of the
willful misfeasance, bad faith or negligence of the Distributor; (b) arising out
of or based upon (i) any untrue statement, or alleged untrue statement, of a
material fact contained in any registration statement or any Prospectus, (ii)
any omission, or alleged omission, to state a material fact required to be
stated in any registration statement or any Prospectus or necessary to make the
statements therein not misleading, or (iii) any untrue statement, or alleged
untrue statement, of a material fact in any Trust-related advertisement or sales
literature, or any omission, or alleged omission, to state a material fact
required to be stated therein to make the statements therein not misleading, in
either case notwithstanding the exercise of reasonable care in the preparation
or review thereof by the Distributor; or (c) arising out of or based upon the
electronic processing of orders over the internet at the Trust's request;
provided, however, that the Trust's agreement to indemnify the Distributor
Indemnitees pursuant to this Section 1.11 shall not be construed to cover any
Claims (A) pursuant to subsection (b) above to the extent such untrue statement,
alleged untrue statement, omission, or alleged omission, was furnished in
writing, or omitted from the relevant writing furnished, as the case may be, to
the Trust by the Distributor for use in the registration statement or in
corresponding statements made in the Prospectus, advertisement or sales
literature; (B) pursuant to subsections (b) or (c) above arising out of or based
upon the willful misfeasance, bad faith or gross negligence of the Distributor
in the performance of its duties or the Distributor's reckless disregard of its
obligations and duties under this Agreement; or (C) arising out of or based upon
the Distributor's failure to comply with laws, rules and regulations applicable
to it in connection with its activities hereunder.
In the event of a Claim for which the Distributor Indemnitees may be
entitled to indemnification hereunder, the Distributor shall provide the Trust
with written notice of the Claim, identifying the persons against whom such
Claim is brought, promptly following receipt of service of the summons or other
first legal process, and in any event within ten (10) days of such receipt. The
Trust will be entitled to assume the defense of any suit brought to enforce any
such Claim if such defense shall be conducted by counsel of good standing chosen
by the Trust and approved by the Distributor, which approval shall not be
unreasonably withheld. In the event any such suit is not based solely on an
alleged untrue statement, omission, or wrongful act on the Trust's part, the
Distributor shall have the right to participate in the defense. In the event the
Trust elects to assume the defense of any such suit and retain counsel of good
standing so approved by the Distributor, the Distributor Indemnitees in such
suit shall bear the fees and expenses of any additional counsel retained by any
of them, but in any case where the Trust does not elect to assume the defense of
any such suit or in case the Distributor reasonably withholds approval of
counsel chosen by the Trust, the Trust will reimburse the
Distributor Indemnitees named as defendants in such suit, for the reasonable
fees and expenses of any counsel retained by them to the extent related to a
Claim covered under this Section 1.11. The Trust's indemnification agreement
contained in this Section 1.11 shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Distributor
Indemnitees, and shall survive the delivery of any Shares.
1.12 The Distributor agrees to indemnify, defend and hold harmless the
Trust, its officers, Trustees, employees, and any person who controls the Trust
within the meaning of Section 15 of the Securities Act (collectively, Trust
Indemnitees), from and against any and all Claims which the Trust Indemnitees
may incur under the Securities Act or under common law or otherwise, arising out
of or based upon (a) any untrue statement, or alleged untrue statement, of a
material fact contained in any registration statement, Prospectus, or
Trust-related advertisement or sales literature, or upon any omission, or
alleged omission, to state a material fact in such materials that would be
necessary to make the information therein not misleading, which untrue
statement, alleged untrue statement, omission, or alleged omission, was
furnished in writing, or omitted from the relevant writing furnished, as the
case may be, to the Trust by the Distributor for use in the registration
statement or in corresponding statements made in the Prospectus, or
advertisement or sales literature; (b) the willful misfeasance, bad faith or
gross negligence of the Distributor in the performance of its duties, or the
Distributor's reckless disregard of its obligations and duties under this
Agreement, or (c) the Distributor's failure to comply with laws, rules and
regulations applicable to it in connection with its activities hereunder (other
than in respect of Trust-related advertisements or sales literature that fails
to comply with applicable laws notwithstanding the exercise of reasonable care
in the preparation and review thereof by the Distributor).
In the event of a Claim for which the Trust Indemnitees may be entitled to
indemnification hereunder, the Trust shall provide the Distributor with written
notice of the Claim, identifying the persons against whom such Claim is brought,
promptly following receipt of service of the summons or other first legal
process, and in any event within ten (10) days of such receipt. The Distributor
will be entitled to assume the defense of any suit brought to enforce any such
Claim if such defense shall be conducted by counsel of good standing chosen by
the Distributor and approved by the Trust, which approval shall not be
unreasonably withheld. In the event any such suit is not based solely on an
alleged untrue statement, omission, or wrongful act on the Distributor's part,
the Trust shall have the right to participate in the defense. In the event the
Distributor elects to assume the defense of any such suit and retain counsel of
good standing so approved by the Trust, the Trust Indemnitees in such suit shall
bear the fees and expenses of any additional counsel retained by any of them,
but in any case where the Distributor does not elect to assume the defense of
any such suit or in case the Trust reasonably withholds approval of counsel
chosen by the Distributor, the Distributor will reimburse the Trust Indemnitees
named as defendants in such suit, for the reasonable fees and expenses of any
counsel retained by them to the extent related to a Claim covered under this
Section 1.12. The Distributor's indemnification agreement contained in this
Section
1.12 shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Trust Indemnitees, and shall survive
the delivery of any Shares.
1.13 No Shares shall be offered by either the Distributor or the Trust
under any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Trust if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the
Securities Act or if and so long as a current Prospectus as required by Section
10(b)(2) of said Act is not on file with the Commission; provided, however,
that: (a) the Distributor will not be obligated to cease offering shares until
it has received from the Trust written notice of such events, and (b) nothing
contained in this Section 1.13 shall in any way restrict or have an application
to or bearing upon the Trust's obligation to repurchase Shares from any
shareholder in accordance with the provisions of the Trust's Prospectus,
Agreement and Declaration of Trust, or Bylaws.
1.14 The Trust agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor:
(a) of any request by the Commission for amendments to the registration
statement or Prospectus then in effect or for additional information;
(b) in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or
Prospectus then in effect or the initiation by s ervice of process on
the Trust of any proceeding for that purpose; and
I of the happening of any event that makes untrue any statement of a
material fact made in the registration statement or Prospectus then in
effect or which requires the making of a change in such registration
statement or Prospectus in order to make the statements therein not
misleading;
For purposes of this section, informal requests by or acts of the Staff of
the Commission shall not be deemed actions of or requests by the Commission
unless they would reasonably be expected to have a material negative impact upon
the offering of Shares.
2. Fees.
2.1 Attached as Schedule B to this Agreement are all plans of distribution
under Rule 12b-1 under the 1940 Act approved by the Funds and in effect
(collectively, the "Distribution Plan"). The Funds will deliver to Distributor
promptly after any changes thereto updated copies of the Distribution Plan. For
its services under this Agreement, the Distributor shall be compensated as set
forth on Schedules C and D to this Agreement. If the Funds have a Distribution
Plan that permits and authorizes them to compensate the Distributor and required
board approvals have been given, then the Funds
shall be responsible for all such compensation or such portions of it as have
been permitted and authorized under the Distribution Plan. If the Funds are not
permitted and authorized to compensate the Distributor for fees and expenses in
full in accordance with Schedules C and D, then the Adviser shall agree with the
Distributor in a separate instrument that the Adviser shall compensate the
Distributor in accordance with Schedules C and D to the extent that the Funds
are not so permitted or authorized. The fees set forth on Schedules C and D are
subject to change by Distributor upon 30 days advance notice.
2.2 If: (i) the Distributor properly receives fees from the Funds under the
Distribution Plan, other than for services rendered or expenses incurred, that
the Distributor is not obligated to pay to third party broker-dealers, plan
administrators or others ("Retained Fees"), and (ii) the Funds have authority
under the Distribution Plan to pay for some or all of the Distributor's services
under this Agreement ("Permitted Services"), then all of the Retained Fees will
either be (a) returned to the funds and/or (b) credited against the compensation
payable or reimbursement made by the Funds to the Distributor for Permitted
Services.
3. Sale and Payment.
3.1 Shares of a Fund may be subject to a sales load and may be subject to
the imposition of a distribution fee pursuant to the Distribution Plan referred
to above. To the extent that Shares of a Fund are sold at an offering price
which includes a sales load or subject to a contingent deferred sales load with
respect to certain redemptions (either within a single class of Shares or
pursuant to two or more classes of Shares), such Shares shall hereinafter be
referred to collectively as "Load Shares" (and in the case of Shares that are
sold with a front-end sales load, "Front-end Load Shares", or Shares that are
sold subject to a contingent deferred sales load, "CDSL Shares"). Funds that
issue Front-End Load Shares shall hereinafter be referred to collectively as
"Front-End Load Funds." Funds that issue CDSL Shares shall hereinafter be
referred to collectively as "CDSL Funds." Front-end Load Funds and CDSL Funds
may individually or collectively be referred as "Load Funds." Under this
Agreement, the following provisions shall apply with respect to the sale of, and
payment for, Load Shares.
3.2 The Distributor shall have the right to offer Load Shares at their net
asset value, if permitted by the Prospectus, and to sell such Load Shares to the
public against orders therefor at the applicable public offering price, as
defined in Section 4 hereof. The Distributor shall also have the right to sell
Load Shares to dealers against orders therefor at the public offering price less
a concession determined by the Distributor, which concession shall not exceed
the amount of the sales charge or underwriting discount, if any, referred to in
Section 4 below.
3.3 Prior to the time of delivery of any Load Shares by a Load Fund to, or
on the order of, the Distributor, the Distributor shall pay or cause to be paid
to the Load Fund or to its order an amount in New York cleared funds equal to
the applicable net asset value
of such Shares. The Distributor may retain so much of any sales charge or
underwriting discount as is not allowed by the Distributor as a concession to
dealers.
3.4 With respect to CDSL Funds, the following provisions shall be
applicable:
(a) The Distributor shall be entitled to receive all contingent
deferred sales load charges, 12b-1 payments and all distribution
and service fees set forth in the Distribution Plan adopted by a
CDSL Fund with respect to CDSL Shares (collectively, the "CDSL
Payments") with respect to CDSL Shares. The Distributor may
assign or sell to a third party (a "CDSL Financing Entity") all
or a part of the CDSL Payments on CDSL Shares that the
Distributor is entitled to receive under this Agreement. The
Distributor's right to the CDSL Payments on such CDSL Shares, if
assigned or sold to a CDSL Financing Entity, shall continue after
termination of this Agreement.
(b) The Distributor may assign or sell to a CDSL Financing Entity all
or part of the CDSL Payments the Distributor is entitled to
receive. The Distributor's right to payment of CDSL Payments, if
assigned or sold to a CDSL Financing Entity, shall continue after
termination of this Agreement. Otherwise, (unless the Distributor
is legally entitled to receive such fees as the financing entity)
the right to receive all CDSL Payments in respect of periods
subsequent to the termination of this Agreement shall terminate
upon termination of this Agreement. In the event Distributor
assigns or sells all or a part of the CDSL Payments to a CDSL
Financing Entity and this Agreement is subsequently terminated,
Distributor shall have no obligation to assist the CDSL Financing
Entity in connection with such CDSL Financing Entity's right to
receive such CDSL Payments subsequent to such termination.
I The Distributor shall not be required to offer or sell CDSL
Shares of a CDSL Fund unless and until it has received a binding
commitment from a CDSL Financing Entity (a "Commitment")
satisfactory to the Distributor which Commitment shall cover all
expenses and fees related to the offer and sale of such CDSL
Shares including, but not limited to, dealer reallowances,
financing commitment fees, and legal fees. If at any time during
the term of this Agreement the then-current CDSL financing is
terminated through no fault of the Distributor, the Distributor
shall have the right to immediately cease offering or selling
CDSL Shares until substitute financing becomes effective.
(d) The Distributor and the Trust hereby agree that the terms and
conditions set forth herein regarding the offer and sale of CDSL
Shares may be amended upon approval of both parties in order to
comply with the terms and conditions of any agreement with a CDSL
Financing Entity to finance the costs for the offer and sale
of CDSL Shares so long as such terms and conditions are in
compliance with the Distribution Plan.
4. Public Offering Price.
The public offering price of a Load Share shall be the net asset value of
such Load Share next determined, plus any applicable sales charge, all as set
forth in the current Prospectus of the Load Fund. The net asset value of Load
Shares shall be determined in accordance with the then-current Prospectus of the
Load Fund.
5. Issuance of Shares.
The Trust reserves the right to issue, transfer or sell Load Shares at net
asset values (a) in connection with the merger or consolidation of the Trust or
the Load Fund(s) with any other investment company or the acquisition by the
Trust or the Load Fund(s) of all or substantially all of the assets or of the
outstanding Shares of any other investment company; (b) in connection with a pro
rata distribution directly to the holders of Shares in the nature of a stock
dividend or split; (c) upon the exercise of subscription rights granted to the
holders of Shares on a pro rata basis; (d) in connection with the issuance of
Load Shares pursuant to any exchange and reinvestment privileges described in
any then-current Prospectus of the Load Fund; and (e) otherwise in accordance
with any then-current Prospectus of the Load Fund.
6. Term, Duration and Termination.
This Agreement shall become effective with respect to each Fund as of the
date first written above (the "Effective Date") (or, if a particular Fund is not
in existence on such date, on the earlier of the date an amendment to Schedule A
to this Agreement relating to that Fund is executed or the Distributor begins
providing services under this Agreement with respect to such Fund) and, unless
sooner terminated as provided herein, shall continue through September 30, 2006.
Thereafter, if not terminated, this Agreement shall continue with respect to a
particular Fund automatically for successive one-year terms, provided that such
continuance is specifically approved at least annually (a) by the vote of a
majority of those members of the Trust's Board of Trustees who are not parties
to this Agreement or interested persons of any such party, cast in person at a
meeting for the purpose of voting on such approval and (b) by the vote of the
Trust's Board of Trustees or the vote of a majority of the outstanding voting
securities of such Fund. This Agreement is terminable without penalty with sixty
days' prior written notice, by the Trust's Board of Trustees, by vote of a
majority of the outstanding voting securities of the Trust, or by the
Distributor. This Agreement will also terminate automatically in the event of
its assignment. (As used in this Agreement, the terms "majority of the
outstanding voting securities," "interested persons" and "assignment" shall have
the same meaning as ascribed to such terms in the 1940 Act.)
7. Privacy.
Nonpublic personal financial information relating to consumers or customers
of the Funds provided by, or at the direction of, the Trust to the Distributor,
or collected or
retained by the Distributor to perform its duties as distributor, shall be
considered confidential information. The Distributor shall not disclose or
otherwise use any nonpublic personal financial information relating to present
or former shareholders of the Funds other than for the purposes for which that
information was disclosed to the Distributor, including use under an exception
in Rules 13, 14 or 15 of Securities and Exchange Commission Regulation S-P in
the ordinary course of business to carry out those purposes. The Distributor
shall have in place and maintain physical, electronic and procedural safeguards
reasonably designed to protect the security, confidentiality and integrity of,
and to prevent unauthorized access to or use of, records and information
relating to consumers and customers of the Funds. The Trust represents to the
Distributor that it has adopted a Statement of its privacy policies and
practices as required by Securities and Exchange Commission Regulation S-P and
agrees to provide the Distributor with a copy of that statement annually.
8. Anti-Money Laundering Compliance.
8.1 Each of Distributor and the Trust acknowledges that it is a financial
institution subject to the USA Patriot Act of 2001 and the Bank Secrecy Act
(collectively, the "AML Acts"), which require, among other things, that
financial institutions adopt compliance programs to guard against money
laundering. Each represents and warrants to the other that it is in compliance
with and will continue to comply with the AML Acts and applicable regulations in
all relevant respects. The Distributor shall also provide written notice to each
person or entity with which it entered an agreement prior to the date hereof
with respect to sale of the Trust's Shares, such notice informing such person of
anti-money laundering compliance obligations applicable to financial
institutions under applicable laws and, consequently, under applicable
contractual provisions requiring compliance with laws.
8.2 The Distributor shall include specific contractual provisions regarding
anti-money laundering compliance obligations in agreements entered into by the
Distributor with any dealer that is authorized to effect transactions in Shares
of the Trust.
8.3 Each of Distributor and the Trust agrees that it will take such further
steps, and cooperate with the other as may be reasonably necessary, to
facilitate compliance with the AML Acts, including but not limited to the
provision of copies of its written procedures, policies and controls related
thereto ("AML Operations"). Distributor undertakes that it will grant to the
Trust, the Trust's anti-money laundering compliance officer and regulatory
agencies, reasonable access to copies of Distributor's AML Operations, books and
records pertaining to the Trust only. It is expressly understood and agreed that
the Trust and the Trust's compliance officer shall have no access to any of
Distributor's AML Operations, books or records pertaining to other clients of
Distributor.
9. Notices.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, to Fifth Third Funds, 00 Xxxxxxxx
Xxxxxx Xxxxx, Xxxx Drop 000XX, 00xx xxxxx, Xxxxxxxxxx, XX 00000, Attn: Xxxx
Xxxx; and if to Distributor, to it at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attn: Broker Dealer Chief Compliance
Officer, with a copy to BISYS Distribution Services, 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000, attn: President, or at such other address as such party
may from time to time specify in writing to the other party pursuant to this
Section.
10. Confidentiality.
During the term of this Agreement, the Distributor and the Trust may have
access to confidential information relating to such matters as either party's
business, trade secrets, systems, procedures, manuals, products, contracts,
personnel, and clients. As used in this Agreement, "Confidential Information"
means information belonging to the Distributor or the Trust which is of value to
such party and the disclosure of which could result in a competitive or other
disadvantage to either party, including, without limitation, financial
information, business practices and policies, know-how, trade secrets, market or
sales information or plans, customer lists, business plans, and all provisions
of this Agreement. Confidential Information includes information developed by
either party in the course of engaging in the activities provided for in this
Agreement, unless: (i) the information is or becomes publicly known without
breach of this Agreement, (ii) the information is disclosed to the other party
by a third party not under an obligation confidentiality to the party whose
Confidential Information is at issue of which the party receiving the
information should reasonably be aware, or (iii) the information is
independently developed by a party without reference to the other's Confidential
Information. Each party will protect the other's Confidential Information with
at least the same degree of care it uses with respect to its own Confidential
Information, and will not use the other party's Confidential Information other
than in connection with its duties and obligations hereunder. Notwithstanding
the foregoing, a party may disclose the other's Confidential Information if (i)
required by law, regulation or legal process or if requested by any Agency; (ii)
it is advised by counsel that it may incur liability for failure to make such
disclosure; or (iii) requested to by the other party; provided that in the event
of (i) or (ii) the disclosing party shall give the other party reasonable prior
notice of such disclosure to the extent reasonably practicably and cooperate
with the other party (at such other party's expense) in any efforts to prevent
such disclosure. The obligations of confidentiality set forth in this Section 10
shall survive the termination of this Agreement for an indefinite period with
respect to customer lists and personal non-public information regarding the
Trust's customers, and for a period of three (3) years after termination with
respect to all other Confidential Information.
11. Governing Law
This Agreement shall be construed in accordance with the laws of the State
of the Commonwealth of Massachusetts and the applicable provisions of the 1940
Act.
12. Prior Agreements
This Agreement constitutes the complete agreement of the parties as to the
subject matter covered by this Agreement, and supersedes all prior negotiations,
understandings and agreements bearing upon the subject matter covered by this
Agreement.
13. Amendments
No amendment to this Agreement shall be valid unless made in writing and
executed by both parties hereto.
14. Matters Relating to the Trust as a Massachusetts Business Trust
It is expressly agreed that the obligations of the Trust hereunder shall
not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but shall bind only the trust
property of the Trust. The execution and delivery of this Agreement have been
authorized by the Trustees, and this Agreement has been signed and delivered by
an authorized officer of the Trust, acting as such, and neither such
authorization by the Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose any
liability on them personally, but shall bind only the trust property of the
Trust as provided in the Trust's Declaration of Trust.
* * * * * *
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first written
above.
FIFTH THIRD FUNDS
By:
Name:
Title:
FIFTH THIRD FUNDS DISTRIBUTOR, INC.
By:
Name:
Title:
SCHEDULE A
FUNDS
[List of funds to be inserted into execution version.]
SCHEDULE B
DISTRIBUTION PLAN
[Copies of plans to be inserted into execution version.]
SCHEDULE C
COMPENSATION OF THE DISTRIBUTOR
1. BASIC DISTRIBUTION SERVICES. For providing the distribution entity and
related infrastructure and platform, including requisite registrations and
qualifications, premises, personnel, compliance, ordinary fund board meeting
preparation, maintenance of selling agreements, clearance of advertising and
sales literature with regulators, filing appropriate documentation for advisory
representatives to qualify as registered representatives of the Distributor
(provided that the Adviser is solely responsible for its representatives'
meeting examination requirements) and their related registrations and fees,
ordinary supervisory services, overhead, Financial Research Corporation's Mutual
Fund Views on the News and Monitor publications, and return on investment, the
Distributor shall receive an annual fee of $250,000.00, billed monthly.
2. SPECIAL DISTRIBUTION SERVICES. For special distribution services requested by
the Trust, including, without limitation, those set forth on Schedule D to this
Agreement, such as additional personnel, registrations, marketing services,
printing and fulfillment, website services, proprietary distribution expertise
for particular circumstances, and any other services in addition to the basic
distribution services covered by Paragraph 1 above, the Distributor shall be
reimbursed promptly upon invoicing its expenses for such services, including:
(a) all costs to support additional personnel; (b) regulatory fees including
NASD CRD costs associated with marketing materials; and (c) printing, postage
and fulfillment costs, and (d) amounts payable under additional agreements to
which Distributor is a party.
3. SPECIAL CONDUIT SITUATIONS. If the Distribution Plan, or any other Fund plans
of distribution under Rule 12b-1 that contemplate up front and/or recurring
commission and/or service payments to broker dealers, retirement plan
administrators or others by the Distributor with respect to back-end loads,
level loads, or otherwise, unless expressly agreed otherwise in writing between
the parties, all such payments shall be made to the Distributor, which shall act
as a conduit for making such payments to such broker-dealers, retirement plan
administrators or others.
4. OTHER PAYMENTS BY THE DISTRIBUTOR. If the Distributor is required to make any
payments to third parties in respect of distribution, which payments are
contemplated by the parties to the Distribution Agreement or otherwise arise in
the ordinary course of business, the Distributor shall be promptly reimbursed
for such payments upon invoicing them.
5. FEE ADJUSTMENTS. The fixed fees and other fees expressed as stated dollar
amounts in this Schedule C and in this Agreement are subject to annual
increases, as may be mutually agreed upon.
FIFTH THIRD FUNDS
By:
Name:
Title:
FIFTH THIRD FUNDS DISTRIBUTOR, INC.
By:
Name:
Title:
SCHEDULE D
SPECIAL DISTRIBUTION SERVICES AND FEES
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SERVICES FEES
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1. WHOLESALING PERSONNEL SERVICES WHOLESALING PERSONNEL SERVICES FEES
Wholesaling Personnel may be external wholesalers and/or internal For each individual constituting the Wholesaling Personnel
wholesalers. employed by the Distributor pursuant to this Agreement, the
Distributor shall receive annually an amount equal to the sum
Services include soliciting support of the Funds with selling of:
broker dealers; participating in promotional meetings,
presentations, conferences and other and forums; identifying
high potential personnel of the Adviser and selling broker (i) all compensation paid annually by the Distributor to the
dealers; and assisting with mail solicitations
and literature fulfillment.
(ii) a management oversight fee equal to:
(a) if one to four Wholesaling Personnel are employed,
30% of the salary compensation and 5% of the bonus or
commission compensation, or
(b) if five or more Wholesaling Personnel are employed,
25% of the salary compensation and 5% of the bonus or
commission compensation;
plus
(iii) 18% of the total compensation.
In addition, the Distributor shall be reimbursed for all
related costs to support, educate and train and maintain
compliance oversight of Wholesaling Personnel and other
personnel such as sales management personnel, (including time
and expenses, continuing education, seminars, rent, supplies,
phone, computers, firm element, license, registration)
Upon any termination of Wholesaling Personnel at the request
of the Funds or upon termination of this Agreement by the
Funds for any reason other than cause, the Distributor will
be reimbursed its severance costs with respect to such
terminated Wholesaling Personnel; provided that the
Distributor shall consult with the Trust (or if directed by
the Trust, the Adviser) and give the Trust (or the Adviser)
the opportunity to pay additional amounts to the Distributor
so as to allow the Distributor to increase the severance
payments the Distributor would otherwise have made to such
Wholesaling Personnel.
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2. MARKETING AND RELATED SERVICES MARKETING AND RELATED SERVICES FEES
Marketing Execution: services include identification and Marketing Execution: Quote available upon request.
development of appropriate marketing and communications programs,
projects and other initiatives; collaboration on initiating, Performance Reporting
researching, developing, and delivering appropriate sales and
marketing materials; and management of marketing and advertising Monthly Reports
projects.
Monthly Updating and Typesetting -- $850 - $1,000 per
Performance Reporting: services include creation of templates for sheet per month (for an All-in-One style report)
monthly fact sheets and quarterly fact sheets; populating
templates with performance data obtained from third parties; and Initial Design and Setup (1-time charge) -- $500 per
coordinating steps needed for final printing and distribution. sheet
Creative Communication and Editorial Services: services include Quarterly Reports
preparing drafts of textual commentary and management discussion
and analysis for annual; and semi-annual reports, including
Quarterly Updating and Typesetting -- $300 - $350 per portfolio
manager interviews; providing creative design and Fund sheet per
Share Class per quarter direction; and coordinating production,
including typesetting (initial composition and changes to
composition), charts and Initial Design and Setup per Fund sheet
(1-time charge) ancillary items. -- $500 per Fund sheet
Production Timing: Annual & Semi-Annual Reports
o No timing guarantees can be made for completion of Coordination:
monthly and quarterly fact sheets where any of the
information needed to produce the reports is generated by o $3,000 Initial Fee (includes Chairman's Letter and
service providers other than the Distributor. However, a 1st Fund)
basic estimate of turnaround time may be given based upon
when the unit receives all necessary data in good order. o $500 for each additional Fund
Under normal conditions, the Performance Reporting unit
expects to make proofs ready for review (either printed or NOTE: The above charges do not include the typesetting,
electronic PDF format) by the 4th business day after the printing, shipping, fulfillment, Xxxxx filing or
final piece of data is received. If compliance review is quick-turnaround charges that may be incurred from the
necessary (e.g., when Morningstar ratings data is used) an financial printer. The above fees are for coordinating
additional 2 days may be required for review. the project only.
o Printing turnaround (once the factsheets are signed-off Creative
Communication and Editorial Services by the client) is usually
approximately 4-5 calendar days with most jobs shipping by the
5th day. Quote available upon request.
If requested, final electronic PDF files may be generated and
e-mailed on the day the job is signed-off on by the client. These PDFs
may be distributed and printed as necessary until the final printed
pieces arrive.
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3. FRC SERVICES FRC SERVICES FEES
FRC's program components include: Market Analytics Publications: Quote available upon request.
-Market Analytics Publications Advanced Research Publications:
-Advanced Research Publications
-Analyst Support o Topic Briefs
-SME Direct Access
o FRC Focus (typical cost is around $1,500)
The Trust acknowledges that certain FRC publications may be
provided only to parties that have entered into a written White Papers - FRC Vision (typical cost is around
agreement or addendum that sets forth the terms of use of such $2,500)
publications and the associated fee. The Trust will notify the o Research Studies (costs vary, however typically
Distributor whether the Trust or the Adviser or both will enter range between $3,500 and $12,500)
into such an agreement or addendum. The Trust acknowledges that
if only one of the Trust or the Adviser enters into such Analyst Support: Quote available upon request
agreement or addendum, the other party will be prohibited from
receiving or using such publications. SME Direct Access: Quote available upon request
Other FRC Fees:
o Client participation in funding FRC Franchise Level
program: $12,500
o All subsequent content and support hours may be
purchased at a 20% discount from standard pricing.
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Expenses Applicable to Basic Distribution Services, Special Conduit Situation,
and Special Distribution Services
Except as expressly set forth above, actual out-of-pocket expenses incurred by
Distributor in the performance of Special Distribution Services under this
Agreement are not included in the above fees. Such actual out-of-pocket expenses
may include, without limitation:
o reasonable travel and entertainment costs;
o expenses incurred by the Distributor in qualifying, registering and
maintaining the registration of the Distributor and each individual
comprising Wholesaling Personnel as a registered representative of the
Distributor under applicable federal and state laws and rules of the NASD,
e.g., CRD fees and state fees;
o sponsorships, Promotions, Sales Incentives;
o any and all compensation to be paid to a third party as paying agent for
distribution activities (platform fees, finders fees, sub-TA fees, 12b-1
pass thru, commissions, etc.);
o costs and expenses incurred for telephone service, photocopying and office
supplies;
o advertising costs;
o costs for printing, paper stock and costs of other materials, electronic
transmission, courier, talent utilized in sales materials (e.g. models),
design output, photostats, photography, and illustrations;
o packaging, shipping, postage, and photocopies; and
o taxes that are paid or payable by the Distributor or its affiliates in
connection with its services hereunder, other than taxes customarily and
actually imposed upon the income that the Distributor receives hereunder.
FIFTH THIRD FUNDS
By:
--------------------------------
Name:
Title:
FIFTH THIRD FUNDS DISTRIBUTOR, INC.
By:
--------------------------------
Name:
Title:
