Exhibit (4)
FIFTH THIRD FUNDS
Fifth Third Large Cap Growth Fund and
Fifth Third Large Cap Value Fund
PLAN OF REORGANIZATION
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This Plan of Reorganization having been approved by the Board of
Trustees of Fifth Third Funds is made as of , 2002, by Fifth Third Funds, on
behalf of the Fifth Third Large Cap Growth Fund and the Fifth Third Large Cap
Value Fund (the "Plan"). The capitalized terms used herein shall have the
meaning ascribed to them in this Plan.
Overview of Plan of Reorganization
(a) The Fifth Third Large Cap Growth Fund ("Large Cap Growth Fund")
will sell, assign, convey, transfer and deliver to the Fifth Third Large Cap
Value Fund ("Large Cap Value Fund"), and Large Cap Value Fund will acquire, on
the Exchange Date, all of the properties and assets existing at the Valuation
Time in the Large Cap Growth Fund.
In consideration therefor, Large Cap Value Fund shall, on the Exchange
Date, assume all of the liabilities of Large Cap Growth Fund and transfer to
Large Cap Growth Fund a number of full and fractional units of beneficial
interest ("Shares") such Shares being Institutional, Investment A, Investment B
and Investment C Shares of Large Cap Value having an aggregate net asset value
equal to the value of the assets of Large Cap Growth transferred to Large Cap
Value on such date less the value of all of the liabilities of Large Cap Growth
assumed by Large Cap Value on that date. It is intended that the reorganization
described in this Plan shall be a tax-free reorganization under the Internal
Revenue Code of 1986, as amended (the "Code").
(b) Upon consummation of the transaction described in paragraph (a) of
this Plan, Large Cap Growth in complete liquidation shall distribute to its
respective shareholders of record as of the Exchange Date the Large Cap Value
Shares received by it, each shareholder being entitled to receive that number of
such Large Cap Value Shares equal to the proportion which the number of Shares
of Large Cap Growth held by such shareholder bears to the number of such Shares
of Large Cap Growth outstanding on such date. Large Cap Growth shareholders of
record holding Institutional, Investment A, Investment B or Investment C Shares
will receive Institutional, Investment A, Investment B or Investment C Shares,
respectively, of Large Cap Value.
Factual Basis of the Plan
1. Representations and Warranties of Fifth Third Funds Each of Fifth
Third Funds, Large Cap Growth and Large Cap Value jointly and severally
represents and warrants that:
(a) Fifth Third Funds is a business trust duly established and validly
existing under the laws of The Commonwealth of Massachusetts and has power to
carry on its business as it is now being conducted and to carry out this Plan.
Each of Fifth Third Funds, Large Cap Growth and Large Cap Value is not required
to qualify as a foreign association in any jurisdiction. Each of Fifth Third
Funds, Large Cap Growth and Large Cap Value has all necessary federal, state and
local authorizations to own all of its properties and assets and to carry on
business as now being conducted and to fulfill the terms of this Plan, except as
set forth in Section 1(i).
(b) Fifth Third Funds is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company,
and such registration has not been revoked or rescinded and is in full force and
effect. Large Cap Growth and Large Cap Value have elected to qualify and have
qualified as regulated investment companies under Part I of Subchapter M of the
Code as of and since their first taxable year, and the Large Cap Growth and
Large Cap Value qualify and intend to continue to qualify as regulated
investment companies for the taxable year ending upon their liquidation. Large
Cap Growth and Large Cap Value have been regulated investment companies under
such Sections of the Code at all times since their inception.
(c) The statements of assets and liabilities, statements of operations,
statements of changes in net assets and schedules of investments (indicating
their market values) for Large Cap Growth and Large Cap Value for the year ended
July 31, 2001, fairly present the financial position of Large Cap Growth and
Large Cap Value as of such date, and said statements of operations and changes
in net assets and financial highlights fairly reflect the results of operations,
changes in net assets and financial highlights for the periods covered thereby
in conformity with generally accepted accounting principles.
(d) The prospectuses of each of Large Cap Growth and Large Cap Value
dated October 29, 2001, as filed with the Securities and Exchange Commission
(the "Commission") (the "Prospectuses") and the Statement of Additional
Information for Fifth Third Funds, dated October 29, 2001 (the "Fifth Third
Statement of Additional Information") as filed with the Commission, did not as
of such date, and will not as of the Exchange Date, contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) There are no material legal, administrative or other proceedings
pending or, to the knowledge of Fifth Third Funds, Large Cap Growth or Large Cap
Value, overtly threatened against Fifth Third Funds, Large Cap Growth or Large
Cap Value, which assert liability on the part of Fifth Third Funds, Large Cap
Growth or Large Cap Value.
(f) There are no material contracts outstanding to which Fifth Third
Funds, Large Cap Growth or Large Cap Value is a party, other than as disclosed
in Fifth Third's Prospectuses and Statement of Additional Information or in the
Registration Statement.
(g) Large Cap Growth has no known liabilities of a material nature,
contingent or otherwise, other than those shown on its statement of assets and
liabilities as of July 31, 2001, referred to above and those incurred in the
ordinary course of the business of Fifth Third Funds as an investment company or
Large Cap Growth since such date. Prior to the Exchange Date, Large Cap Growth
will advise Large Cap Value of all known material liabilities, contingent or
otherwise, incurred by it subsequent to July 31, 2001, whether or not incurred
in the ordinary course of business.
(h) Fifth Third Funds and each of Large Cap Growth and Large Cap Value
has filed or will file all federal and other tax returns which, to the knowledge
of Fifth Third Funds' officers, are required to be filed by Fifth Third Funds
and each of Large Cap Growth and Large Cap Value and has paid or will pay all
federal and other taxes shown to be due on said returns or on any assessments
received by Large Cap Growth and Large Cap Value. To the best of such officers'
knowledge, all tax liabilities of each of Large Cap Growth and Large Cap Value
have been adequately provided for on its books, and no tax deficiency or
liability of Large Cap Growth and Large Cap Value has been asserted, and no
question with respect thereto has been raised, by the Internal Revenue Service
or by any state or local tax authority for taxes in excess of those already
paid.
(i) No consent, approval, authorization or order of any governmental
authority is required for the consummation by Fifth Third Funds, Large Cap
Growth or Large Cap Value of the transaction contemplated by this Plan, except
such as may be required under the 1933 Act, the 1934 Act, the 1940 Act, state
securities or Blue Sky laws or the H-S-R Act.
(j) As of both the Valuation Time and the Exchange Date and otherwise
as described in Section 1(i), Fifth Third Funds on behalf of Large Cap Value
will have full right, power and authority to purchase the Investments and any
other assets and assume the liabilities of Large Cap Growth to be transferred to
Large Cap Value pursuant to this Plan.
(k) The Registration Statement, the Prospectuses and the Proxy
Statement, on the effective date of the Registration Statement and insofar as
they relate to Fifth Third Funds, Large Cap Growth and Large Cap Value: (i) will
comply in all material respects with the provisions of the 1933 Act, the 1934
Act and the 1940 Act and the rules and regulations thereunder and (ii) will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading; and at the
time of the shareholders' meeting referred to in Section 8(a) and
at the Exchange Date, the Prospectuses, as amended or supplemented by any
amendments or supplements filed with the Commission by Fifth Third Funds, Large
Cap Growth or Large Cap Value, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading; provided, however, that none of the
representations and warranties in this subsection shall apply to statements in
or omissions from the Registration Statement, the Prospectuses or the Proxy
Statement made in reliance upon and in conformity with information furnished by
Large Cap Growth or Large Cap Value for use in the Registration Statement, the
Prospectuses or the Proxy Statement.
(l) Large Cap Value Shares to be issued to Large Cap Growth have been
duly authorized and, when issued and delivered pursuant to this Plan and the
Prospectuses, will be legally and validly issued and will be fully paid and
nonassessable by Fifth Third Funds and no shareholder of Fifth Third Funds will
have any preemptive right of subscription or purchase in respect thereof.
(m) The issuance of Large Cap Value Shares pursuant to this Plan will
be in compliance with all applicable federal and state securities laws.
Specifics of Plan
2. Reorganization. (a) Subject to the requisite approval of the
shareholders of Large Cap Growth and to the other terms and conditions contained
herein (including Large Cap Growth's obligation to distribute to its respective
shareholders all of its investment company taxable income and net capital gain
as described in Section 8(j) hereof), Large Cap Growth agrees to sell, assign,
convey, transfer and deliver to Large Cap Value, and Large Cap Value agrees to
acquire from Large Cap Growth, on the Exchange Date all of the Investments and
all of the cash and other assets of Large Cap Growth in exchange for that number
of Shares of Large Cap Value provided for in Section 3 and the assumption by
Large Cap Value of all of the liabilities of Large Cap Growth. Pursuant to this
Plan, Large Cap Growth will, as soon as practicable after the Exchange Date,
distribute in liquidation all of the Large Cap Value Shares received by it to
its shareholders in exchange for their Shares of Large Cap Growth.
(b) Fifth Third Funds, on behalf of Large Cap Growth, will pay or cause
to be paid to Large Cap Value any interest and cash dividends received by it on
or after the Exchange Date with respect to the Investments transferred to Large
Cap Value hereunder. Fifth Third Funds, on behalf of Large Cap Growth, will
transfer to Large Cap Value any rights, stock dividends or other securities
received by Large Cap Growth after the Exchange Date as stock dividends or other
distributions on or with respect to the Investments transferred, which rights,
stock dividends and other securities shall be deemed included in the assets
transferred to Large Cap Value at the Exchange Date and shall not be separately
valued, in which case any such distribution that remains unpaid as of the
Exchange Date shall be included in the determination of the value of the assets
of Large Cap Growth acquired by Large Cap Value.
3. Exchange Date; Valuation Time. On the Exchange Date, Large Cap Value
will deliver to Large Cap Growth a number of Large Cap Value Shares having an
aggregate net asset value equal to the value of the assets attributable to each
corresponding class of Shares of Large Cap Growth acquired by Large Cap Value,
less the value of the liabilities of Large Cap Growth assumed, determined as
hereafter provided in this Section 3.
(a) Subject to Section 3(d) hereof, the value of Large Cap Growth's net
assets will be computed as of the Valuation Time using the valuation procedures
for Large Cap Value set forth in the Fifth Third Prospectuses and Fifth Third
Statement of Additional Information. In no event shall the same security held by
both Large Cap Growth and Fifth Third Funds be valued at different prices.
(b) Subject to Section 3(d) hereof, the net asset value of a Share of
Large Cap Value will be determined to the nearest full cent as of the Valuation
Time, using the valuation procedures set forth in the Fifth Third Prospectuses
for Large Cap Value.
(c) Subject to Section 3(d), the Valuation Time shall be 4:00 p.m.
Eastern Standard time on July 19, 2001, or such earlier or later days as may be
established by the proper officers of Fifth Third Funds (the "Valuation Time").
(d) No formula will be used to adjust the net asset value of Large Cap
Growth or Large Cap Value to take into account differences in realized and
unrealized gains and losses.
(e) Large Cap Value shall issue its Shares to Large Cap Growth on one
share deposit receipt registered in the name of Large Cap Growth. Large Cap
Growth shall distribute in liquidation the Large Cap Value Shares received by it
hereunder pro rata to its shareholders by redelivering such share deposit
receipt to Fifth Third Funds' transfer agent which will as soon as practicable
set up open accounts for Large Cap Growth shareholder, in accordance with
written instructions furnished by Large Cap Growth.
(f) Large Cap Value shall assume all liabilities of Large Cap Growth,
whether accrued or contingent, in connection with the acquisition of assets and
subsequent dissolution of Large Cap Growth or otherwise, except that recourse
for assumed liabilities relating to Large Cap Growth will be limited to Large
Cap Value.
4. Expenses, Fees, etc. (a) All fees and expenses incurred by Large Cap
Growth and/or Large Cap Value as a direct result of the transaction contemplated
by this Plan, will be borne by Fifth Third Bank, including the costs of proxy
materials, proxy solicitations and legal expenses. Fees and expenses not
incurred directly in connection with the consummation of the Transaction will be
paid by the party directly incurring such expenses.
(b) Notwithstanding any other provisions of this Plan, if for any
reason the transaction contemplated by this Plan is not consummated, no party
shall be liable to the other party for any damages resulting therefrom,
including without limitation consequential damages.
5. Permitted Assets. Fifth Third Funds and Large Cap Growth agree to
review the assets of Large Cap Growth to ensure that at any time prior to the
Exchange Date the assets of Large Cap Growth do not include any assets that
Large Cap Value is not permitted, or reasonably believes to be unsuitable for
it, to acquire, including without limitation any security that, prior to its
acquisition by Large Cap Growth, is unsuitable for Large Cap Value to acquire.
6. Exchange Date. Delivery of the assets of Large Cap Growth to be
transferred, assumption of the liabilities of Large Cap Growth to be assumed,
and the delivery of Large Cap Value Shares to be issued shall be made at the
offices of Fifth Third Funds, 3435 Stelzer Road, Columbus, Ohio 43219, at 10:00
a.m. Eastern standard time on July 22, 2002 or at such other times and dates
established by the proper officers of Fifth Third Funds, the date and time upon
which such delivery is to take place being referred to herein as the "Exchange
Date."
7. Special Meeting of Shareholders; Dissolution. (a) Large Cap Growth
agrees to call a special meeting of the shareholders as soon as is practicable
after the effective date of the Registration Statement for the purpose of
considering the sale of all of the assets of Large Cap Growth to and the
assumption of all of the liabilities of Large Cap Growth by Large Cap Value as
herein provided, approving this Plan, and authorizing the liquidation and
dissolution of Large Cap Growth, and it shall be a condition to the obligations
of each of the parties hereto that the holders of the Shares of Large Cap Growth
shall have approved this Plan and the transaction contemplated herein in the
manner required by law and Fifth Third Funds' Declaration of Trust and Bylaws at
such a meeting on or before the Valuation Time.
(b) Large Cap Growth agrees that the liquidation of it will be effected
in the manner provided in Fifth Third Funds' Declaration of Trust and Bylaws in
accordance with applicable law, that it will not make any distributions of any
Large Cap Value Shares to the shareholders of Large Cap Growth without first
paying or adequately providing for the payment of all of Large Cap Growth's
known debts, obligations and liabilities.
8. Conditions to Be Met Regarding the Transaction. The intention of
Fifth Third Funds shall be subject to the following conditions:
(a) This Plan shall have been adopted and the transaction contemplated
hereby, including the liquidation of Large Cap Growth, shall have been approved
by the shareholders of Large Cap Growth in the manner required by law.
(b) Large Cap Growth shall have furnished to Large Cap Value a
statement of Large Cap Growth's assets and liabilities, with values determined
as provided in Section 3 of this Plan, together with a list of Investments with
their respective tax costs, all as of the Valuation Time, certified on Large Cap
Growth's behalf by its President (or any Vice President) and Treasurer, and a
certificate of both such officers, dated the Exchange Date, to the effect that
as of the Valuation Time and as of the Exchange Date there has been no material
adverse change in the financial position of Large Cap Growth since July 31,
2001, other than changes in the Investments since that date or changes in the
market value of the Investments, or changes due to net redemptions of Shares of
Large Cap Growth, dividends paid or losses from operations.
(c) As of the Valuation Time and as of the Exchange Date, all
representations and warranties of Large Cap Growth made in this Plan are true
and correct in all material respects as if made at and as of such dates, Large
Cap Growth has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to each of such dates, and
Large Cap Growth shall have furnished to Large Cap Value a statement, dated the
Exchange Date, signed by Fifth Third Funds' President (or any Vice President)
and Treasurer certifying those facts as of such dates.
(d) There shall not be any material litigation pending with respect to
the matters contemplated by this Plan.
(e) Fifth Third Funds shall have received an opinion of Ropes & Gray
dated the Exchange Date to the effect that: (i) Fifth Third Funds is a business
trust duly established and validly existing under the laws of the Commonwealth
of Massachusetts, and neither Fifth Third Funds, Large Cap Growth, nor Large Cap
Value is, to the knowledge of such counsel, required to qualify to do business
as a foreign association in any jurisdiction; (ii) Fifth Third Funds and Large
Cap Growth have power to sell, assign, convey, transfer and deliver the
Investments and other assets contemplated hereby and, upon consummation of the
transaction contemplated hereby in accordance with the terms of this Plan, Fifth
Third Funds and Large Cap Growth will have duly sold, assigned, conveyed,
transferred and delivered such Investments and other assets to Large Cap Value;
(iii) the adoption of this Plan did not, and the consummation of the transaction
contemplated hereby will not, violate Fifth Third Funds' Declaration of Trust or
Bylaws, as amended, or any provision of any agreement known to such counsel to
which Fifth Third Funds is a party or by which it is bound; (iv) no consent,
approval, authorization or order of any court or governmental authority is
required for the consummation by Fifth Third Funds of the transaction
contemplated hereby, except such as have been obtained under the Securities Act
of 1933 (the "1933 Act"), the Securities Exchange Act of 1934 ("the 1934 Act")
and the 1940 Act; (v) this Plan has been duly authorized, executed and delivered
by Fifth Third Funds and is a valid and binding obligation of Fifth Third Funds;
and (vi) the Shares of Large Cap Value to be delivered to Large Cap Growth as
provided for by this Plan are duly authorized and upon such delivery will be
validly issued and will be fully paid and nonassessable by Fifth Third Funds and
no shareholder of Fifth Third Funds has any preemptive right to subscription or
purchase in respect thereof.
(f) Fifth Third Funds shall have received an opinion of Ropes & Gray
addressed to Fifth Third Funds and dated the Exchange Date to the effect that,
on the basis of the existing provisions of the Code, current administrative
rules and court decisions, for Federal income tax purposes: (i) the transaction
will constitute a reorganization within the meaning of Section 368(a) of the
Code, and Large Cap Value and Large Cap Growth will each be a "party to a
reorganization" within the meaning of Section 368(b) of the Code; (ii) no gain
or loss will be recognized by Large Cap Value upon the receipt of the assets of
Large Cap Growth in exchange for Large Cap Value Shares and the assumption by
Large Cap Value of the liabilities of Large Cap Growth; (iii) the basis in the
hands of Large Cap Value of the assets of Large Cap Growth transferred to Large
Cap Value in the transaction will be the same as the basis of such assets in the
hands of Large Cap Growth immediately prior to the transfer; (iv) the holding
periods of the assets of Large Cap Growth in the hands of Large Cap Value will
include the periods during which such assets were held by Large Cap Growth; (v)
no gain or loss will be recognized by Large Cap Growth upon the transfer of
Large Cap Growth's assets to Large Cap Value in exchange for Large Cap Value
Shares and the assumption by Large Cap Value of the liabilities of Large Cap
Growth, or upon the distribution of Large Cap Value Shares by Large Cap Growth
to its shareholders in liquidation; (vi) no gain or loss will be recognized by
Large Cap Growth shareholders upon the exchange of their Large Cap Growth Shares
for Large Cap Value Shares; (vii) the aggregate
basis of Large Cap Value Shares a Large Cap Growth shareholder receives in
connection with the transaction will be the same as the aggregate basis of his
or her Large Cap Growth Shares exchanged therefor; (viii) a Large Cap Growth
shareholder's holding period for his or her Large Cap Growth Shares will be
determined by including the period for which he or she held the Large Cap Growth
Shares exchanged therefor, provided that he or she held such Large Cap Growth
Shares as capital assets; and (ix) Large Cap Value will succeed to and take into
account the items of Large Cap Growth described in Section 381(c) of the Code.
Large Cap Value will take these items into account subject to the conditions and
limitations specified in Sections 381, 382, 383 and 384 of the Code and the
Regulations thereunder.
(g) The assets of Large Cap Growth to be acquired by Large Cap Value
will include no assets which Large Cap Value, by reason of limitations contained
in its Declaration of Trust or of investment restrictions disclosed in Fifth
Third Prospectuses in effect on the Exchange Date, may not properly acquire.
Fifth Third Funds shall not change Fifth Third Funds' Declaration of Trust and
Fifth Third Prospectuses so as to restrict permitted investments for Large Cap
Value except as required by the Commission or any state regulatory authority.
(h) The Registration Statement shall have become effective under the
1933 Act and applicable Blue Sky provisions, and no stop order suspending such
effectiveness shall have been instituted or, to the knowledge of Fifth Third
Funds, contemplated by the Commission and or any state regulatory authority.
(i) Fifth Third Funds shall have received from the Commission such
order or orders as Ropes & Gray deems reasonably necessary or desirable under
the 1933 Act, the 1934 Act, the 1940 Act in connection with the transaction
contemplated hereby, and that all such orders shall be in full force and effect.
(j) Prior to the Exchange Date, Large Cap Growth and Large Cap Value
shall have declared a dividend or dividends which, together with all previous
such dividends, shall have the effect of distributing to each of its
shareholders all of its investment company taxable income for its taxable years
ending on or after July 31, 2001, and on or prior to the Exchange Date (computed
without regard to any deduction for dividends paid), and all of its net capital
gain realized in each of its taxable years ending on or after July 31, 2001 and
on or prior to the Exchange Date (after reduction for any capital loss
carryover).
(k) Large Cap Growth shall have furnished to Large Cap Value a
certificate, signed by the President (or any Vice President) and the Treasurer
of Fifth Third Funds, as to the tax cost to Large Cap Growth of the securities
delivered to Large Cap Value pursuant to this Plan, together with any such other
evidence as to such tax cost as Large Cap Value may reasonably request.
(l) Fifth Third Funds shall have received from the custodian of Fifth
Third Funds a certificate identifying all of the assets of Large Cap Growth held
by such custodian as of the Valuation Time.
(m) The transfer agent of Fifth Third Funds shall have provided to
Fifth Third Funds (i) a record specifying the number of Shares of Large Cap
Growth outstanding as of the Valuation Time and (iii) a record specifying the
name and address of each holder of record of any such Shares of Large Cap Growth
and the number of Large Cap Growth Shares held of record by each such
shareholder as of the Valuation Time. Large Cap Growth's transfer agent shall
also have provided Fifth Third Funds with a certificate confirming that the acts
specified in the preceding sentence have been taken and that the information so
supplied is complete and accurate to the best knowledge of the transfer agent.
(n) Fifth Third Funds, on behalf of Large Cap Value, shall have
executed and delivered an Assumption of Liabilities dated as of the Exchange
Date pursuant to which Large Cap Value will assume all of the liabilities of
Large Cap Growth existing at the Valuation Time in connection with the
transaction contemplated by this Plan.
(o) Fifth Third Funds, on behalf of Large Cap Growth, shall have
executed and delivered an instrument of transfer ("Transfer Document") and any
other certificates or documents Fifth Third Funds may deem necessary or
desirable to transfer Large Cap Growth's entire right, title and interest in and
to the Investments and all other assets of Large Cap Growth.
9. No Broker, etc. There is no person who has dealt with Fifth Third
Funds, Large Cap Growth or Large Cap Value who by reason of such dealings is
entitled to any broker's or finder's or other similar fee or commission arising
out of the transaction contemplated by this Plan.
10. Termination. Fifth Third Funds may, by consent of its Trustees,
terminate this Plan, and Fifth Third Funds, after consultation with counsel, may
modify this Plan in any manner deemed necessary or desirable.
11. Covenants, etc. Deemed Material. All covenants, agreements,
representations and warranties made under this Plan and any certificates
delivered pursuant to this Plan shall be deemed to have been material and relied
upon by each of the parties, notwithstanding any investigation made by them or
on their behalf.
12. Sole Plan; Amendments. This Plan supersedes all previous
correspondence and oral communications between the parties regarding the subject
matter hereof, constitutes the only understanding with respect to such subject
matter, may not be changed except by a letter of agreement signed by each party
hereto, and shall be construed in accordance with and governed by the laws of
The Commonwealth of Massachusetts.
13. Rule 145. Pursuant to Rule 145 under the 1933 Act, Fifth Third
Funds will, in connection with the issuance of any Shares of the Large Cap Value
Fund to any person who at the time of the transaction contemplated hereby is
deemed to be an affiliate of a party to the transaction pursuant to Rule 145(c),
cause to be affixed upon the certificates issued to such person (if any) a
legend as follows:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT TO FIFTH THIRD
FUNDS OR ITS PRINCIPAL UNDERWRITER UNLESS (i) A REGISTRATION STATEMENT WITH
RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
(ii) IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO FIFTH THIRD FUNDS SUCH
REGISTRATION IS NOT REQUIRED.
and, further, Fifth Third Funds will issue stop transfer instructions to Fifth
Third Funds' transfer agent with respect to such Large Cap Value Shares.
14. Fifth Third Funds' Declaration of Trust Fifth Third Funds is a
business trust organized under Massachusetts law and under a Declaration of
Trust, to which reference is hereby made and a copy of which is on file at the
office of the Secretary of The Commonwealth of Massachusetts and elsewhere as
required by law, and to any and all amendments thereto so filed or hereafter
filed. The obligations of "Fifth Third Funds" entered into in the name or on
behalf thereof by any of the Trustees, officers, employees or agents are made
not individually, but in such capacities, and are not binding upon any of the
Trustees, officers, employees, agents or shareholders of Fifth Third Funds
personally, but bind only the assets of Fifth Third Funds and all persons
dealing with any series or funds of Fifth Third Funds, such as Large Cap Value,
must look solely to the assets of Fifth Third Funds belonging to such series or
funds for the enforcement of any claims against Fifth Third Funds.
AS ADOPTED ON , 2002
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