Exhibit (d)(i)
Fifth Third Funds
FORM OF 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.
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.
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
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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.
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 30th day of April, 2001
Fifth Third Asset Management Inc.
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By:
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Title: President
Fifth Third Funds
By:
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Title: Vice President
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