Exhibit (d)(ii)
FOUNTAIN SQUARE PINNACLE FUND
INVESTMENT ADVISORY CONTRACT
DATED JANUARY 21, 1998
AS AMENDED AND RESTATED ON
AUGUST 1, 2002
FIFTH THIRD FUNDS
LARGE CAP OPPORTUNITY FUND
FORM OF 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 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, 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 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.
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 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
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.
Exhibit A
to the
Investment Advisory Contract
between
Heartland Capital Management, Inc.
and
Fifth Third Funds
FIFTH THIRD FUNDS
LARGE CAP OPPORTUNITY 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 _______________ day of __________,
2002.
HEARTLAND CAPITAL MANAGEMENT, INC.
/s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President
FIFTH THIRD FUNDS
/s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
President
