UNDERWRITING AGREEMENT
MELLON INSTITUTIONAL FUNDS INVESTMENT TRUST
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June 30, 2007
MBSC Securities Corporation
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Ladies and Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the above-named investment company (the "Fund") has agreed that you
shall be, for the period of this agreement, the principal underwriter of (a)
shares of each Series of the Fund set forth on Exhibit A hereto, as such Exhibit
may be revised from time to time (each, a "Series") or (b) if no Series are set
forth on such Exhibit, shares of the Fund. For purposes of this agreement the
term "Shares" shall mean the authorized shares of the relevant Series, if any,
and otherwise shall mean the Fund's authorized shares.
1. Services as Principal Underwriter
1.1 You are granted the right and option to purchase Shares covered by,
and in accordance with, the registration statement and prospectus then in effect
under the Securities Act of 1933, as amended, for sale to investors either
directly or through other broker-dealers. You are not required to purchase any
specified number of Shares, but will purchase from the Fund only a sufficient
number of Shares as may be necessary to fill unconditional orders received from
time to time by you. You will transmit promptly any orders received by you for
purchase or redemption of Shares to the Transfer and Dividend Disbursing Agent
for the Fund of which the Fund has notified you in writing. The Fund reserves
the right to issue Shares in connection with the merger or consolidation, or
acquisition by the Fund through purchase or otherwise, with any other investment
company, trust or personal holding company.
1.2 You agree to use your best efforts to solicit orders for the sale of
Shares. It is contemplated that you will enter into sales or servicing
agreements with securities dealers, financial institutions and other industry
professionals, such as investment advisers, accountants and estate planning
firms, and in so doing you will act only on your own behalf as principal.
1.3 You shall act as principal underwriter of Shares in compliance with
all applicable laws, rules and regulations, including, without limitation, all
rules and regulations made or adopted pursuant to the Investment Company Act of
1940, as amended, by the Securities and Exchange Commission or any securities
association registered under the Securities Exchange Act of 1934, as amended.
1.4 Whenever in their judgment such action is warranted by market,
economic or political conditions, or by abnormal circumstances of any kind, the
Fund's officers may decline to accept any orders for, or make any sales of, any
Shares until such time as they deem it advisable to accept such orders and to
make such sales and the Fund shall advise you promptly of such determination.
1.5 The Fund agrees to pay all costs and expenses in connection with the
registration of Shares under the Securities Act of 1933, as amended, and all
expenses in connection with maintaining facilities for the issue and transfer of
Shares and for supplying information, prices and other data to be furnished by
the Fund hereunder, and all expenses in connection with the preparation and
printing of the Fund's prospectuses and statements of additional information and
amendments thereto for regulatory purposes and for distribution to existing
shareholders; provided, however, that nothing contained herein shall be deemed
to require the Fund to pay any of the costs of advertising the sale of Shares.
1.6 The Fund agrees to execute any and all documents and to furnish any
and all information and otherwise to take all actions which may be reasonably
necessary in the discretion of the Fund's officers in connection with the
qualification of Shares for sale in such states as you may designate to the Fund
and the Fund may approve, and the Fund agrees to pay all expenses which may be
incurred in connection with such qualification. You shall pay all expenses
connected with your own qualification as a dealer under state or Federal laws
and, except as otherwise specifically provided in this agreement, all other
expenses incurred by you in connection with the sale of Shares as contemplated
in this agreement.
1.7 The Fund shall furnish you from time to time, for use in connection
with the sale of Shares, such information with respect to the Fund or any
relevant Series and the Shares as you may reasonably request, all of which shall
be signed by one or more of the Fund's duly authorized officers; and the Fund
warrants that the statements contained in any such information, when so signed
by the Fund's officers, shall be true and correct. The Fund also shall furnish
you upon request with: (a) semi-annual reports and annual audited reports of the
Fund's books and accounts made by independent public accountants regularly
retained by the Fund, (b) a monthly itemized list of the securities in the
Fund's or, if applicable, each Series' portfolio, and (c) from time to time such
additional information regarding the Fund's financial condition as you may
reasonably request.
1.8 The Fund represents to you that all registration statements and
prospectuses filed by the Fund with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, and under the Investment Company Act of
1940, as amended, with respect to the Shares have been prepared in conformity
with the requirements of said Acts and rules and regulations of the Securities
and Exchange Commission thereunder. As used in this agreement the terms
"registration statement" and "prospectus" shall mean any registration statement
and prospectus, including the statement of additional information incorporated
by reference therein, filed with the Securities and Exchange Commission and any
amendments and supplements thereto which at any time shall have been filed with
said Commission. The Fund represents and warrants to you that any registration
statement and prospectus, when such registration statement becomes effective,
will contain all statements required to be stated therein in conformity with
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said Acts and the rules and regulations of said Commission; that all statements
of fact contained in any such registration statement and prospectus will be true
and correct when such registration statement becomes effective; and that neither
any registration statement nor any prospectus when such registration statement
becomes effective will include an 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 not misleading. You 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 your opinion, be necessary or advisable. If the Fund shall
not propose such amendment or amendments and/or supplement or supplements to
Fund counsel within fifteen days after receipt by the Fund of a written request
from you to do so, you may, at your option, terminate this agreement or decline
to make offers of the Fund's securities until such amendments are made. The Fund
shall provide you reasonable advance notice of any amendment to any registration
statement or supplement to any prospectus; provided, however, that nothing
contained in this agreement shall in any way limit the Fund's right to file at
any time such amendments to any registration statement and/or supplements to any
prospectus, of whatever character, as the Fund may deem advisable, such right
being in all respects absolute and unconditional.
1.9 The Fund authorizes you to use any prospectus in the form furnished
to you from time to time, in connection with the sale of Shares. The Fund agrees
to indemnify, defend and hold you, your several officers and directors, and any
person who controls you within the meaning of Section 15 of the Securities Act
of 1933, as amended, free and harmless from and against any and all claims,
demands, liabilities and expenses (including the cost of investigating or
defending such claims, demands or liabilities and any counsel fees incurred in
connection therewith) which you, your officers and directors, or any such
controlling person, may incur under the Securities Act of 1933, as amended, or
under common law or otherwise, arising out of or based upon any untrue
statement, or alleged untrue statement, of a material fact contained in any
registration statement or any prospectus or arising out of or based upon any
omission, or alleged omission, to state a material fact required to be stated in
either any registration statement or any prospectus or necessary to make the
statements in either thereof not misleading; provided, however, that the Fund's
agreement to indemnify you, your officers or directors, and any such controlling
person shall not be deemed to cover any claims, demands, liabilities or expenses
arising out of any untrue statement or alleged untrue statement or omission or
alleged omission made in any registration statement or prospectus in reliance
upon and in conformity with written information furnished to the Fund by you
specifically for use therein or otherwise approved by your affiliates or their
representatives in connection with the preparation thereof. The Fund's agreement
to indemnify you, your officers and directors, and any such controlling person,
as aforesaid, is expressly conditioned upon the Fund's being notified of any
action brought against you, your officers or directors, or any such controlling
person, such notification to be given by letter or by telegram addressed to the
Fund at its address set forth above within ten days after the summons or other
first legal process shall have been served. The failure so to notify the Fund of
any such action shall not relieve the Fund from any liability which the Fund may
have to the person against whom such action is brought by reason of any such
untrue, or alleged untrue, statement or omission, or alleged omission, otherwise
than on account of the Fund's indemnity agreement contained in this paragraph
1.9. The Fund will be entitled to assume the defense of
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any suit brought to enforce any such claim, demand or liability, but, in such
case, such defense shall be conducted by counsel chosen by the Fund and approved
by you. In the event the Fund elects to assume the defense of any such suit and
retain counsel of good standing approved by you, the defendant or defendants in
such suit shall bear the fees and expenses of any additional counsel retained by
any of them; but in case the Fund does not elect to assume the defense of any
such suit, or in case you do not approve of counsel chosen by the Fund, the Fund
will reimburse you, your officers and directors, or the controlling person or
persons named as defendant or defendants in such suit, for the fees and expenses
of any counsel retained by you or them. The Fund's indemnification agreement
contained in this paragraph 1.9 and the Fund's representations and warranties in
this agreement shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of you, your officers and directors, or
any controlling person, and shall survive the delivery of any Shares. This
agreement of indemnity will inure exclusively to your benefit, to the benefit of
your several officers and directors, and their respective estates, and to the
benefit of any controlling persons and their successors. The Fund agrees
promptly to notify you of the commencement of any litigation or proceedings
against the Fund or any of its officers or Board members in connection with the
issue and sale of Shares.
1.10 You agree to indemnify, defend and hold the Fund, its several
officers and Board members, and any person who controls the Fund within the
meaning of Section 15 of the Securities Act of 1933, as amended, free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which the
Fund, its officers or Board members, or any such controlling person, may incur
under the Securities Act of 1933, as amended, or under common law or otherwise,
but only to the extent that such liability or expense incurred by the Fund, its
officers or Board members, or such controlling person resulting from such claims
or demands, shall arise out of or be based upon any untrue, or alleged untrue,
statement of a material fact contained in information furnished in writing by
you to the Fund specifically for use in the Fund's registration statement and
used in the answers to any of the items of the registration statement or in the
corresponding statements made in the prospectus, or shall arise out of or be
based upon any omission, or alleged omission, to state a material fact in
connection with such information furnished in writing by you to the Fund and
required to be stated in such answers or necessary to make such information not
misleading. Your agreement to indemnify the Fund, its officers and Board
members, and any such controlling person, as aforesaid, is expressly conditioned
upon your being notified of any action brought against the Fund, its officers or
Board members, or any such controlling person, such notification to be given by
letter or telegram addressed to you at your address set forth above within ten
days after the summons or other first legal process shall have been served. You
shall have the right to control the defense of such action, with counsel of your
own choosing, satisfactory to the Fund, if such action is based solely upon such
alleged misstatement or omission on your part, and in any other event the Fund,
its officers or Board members, or such controlling person shall each have the
right to participate in the defense or preparation of the defense of any such
action. The failure so to notify you of any such action shall not relieve you
from any liability which you may have to the Fund, its officers or Board
members, or to such controlling person by reason of any such untrue, or alleged
untrue, statement or omission, or alleged omission, otherwise than on account of
your indemnity agreement contained in this paragraph 1.10. This agreement of
indemnity will
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inure exclusively to the Fund's benefit, to the benefit of the Fund's officers
and Board members, and their respective estates, and to the benefit of any
controlling persons and their successors.
You agree promptly to notify the Fund of the commencement of any
litigation or proceedings against you or any of your officers or directors in
connection with the issue and sale of Shares.
In no case shall the Fund indemnify you or your officers or directors, or
any such controlling person as to any amounts incurred for any liability arising
out of or based upon any action for which you, your officers or directors or any
controlling person would otherwise be subject to liability by reason of willful
misfeasance, bad faith or gross negligence in the performance of your duties or
by reason of the reckless disregard of your obligation and duties under this
agreement.
1.11 No Shares shall be offered by either you or the Fund under any of
the provisions of this agreement and no orders for the purchase of such Shares
hereunder shall be accepted by the Fund 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 of 1933, as
amended, or if and so long as a current prospectus as required by Section 10 of
said Act, as amended, is not on file with the Securities and Exchange
Commission; provided, however, that nothing contained in this paragraph 1.11
shall in any way restrict or have an application to or bearing upon the Fund's
obligation to repurchase any Shares from any shareholder in accordance with the
provisions of the Fund's prospectus or charter documents.
1.12 The Fund agrees to advise you immediately in writing:
(a) of any written request by the Securities and Exchange 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 Securities and Exchange
Commission of any stop order suspending the effectiveness of the
registration statement or prospectus then in effect or the initiation of
any proceeding for that purpose;
(c) of the happening of any event which 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; and
(d) of all formal actions of the Securities and Exchange Commission
with respect to any amendments to any registration statement or prospectus
which may from time to time be filed with the Securities and Exchange
Commission.
1.13 You represent, warrant and covenant that:
(a) You have full power and authority to enter into and to perform
your duties and obligations under this Agreement;
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(b) You are a member in good standing of the National Association of
Securities Dealers ("NASD") and the Securities Investor Protection
Corporation ("SIPC"), and are registered as a broker-dealer with the
Securities and Exchange Commission, and you are qualified to the extent
necessary in each state in which you will offer and sell Shares and you or
your personnel have all other material licenses, permits, authorizations
and registrations necessary under applicable federal and state securities
laws to perform your obligations under this Agreement;
(c) You will use your best efforts, and operate in a manner
designed, to comply with the rules of the NASD (including without
limitation the Conduct Rules), applicable federal and state securities and
fiduciary laws, and all other rules and regulations that now or may become
applicable to you in carrying out your duties hereunder; and
(d) You agree to notify us promptly in the event that you are no
longer a member in good standing with the NASD or SIPC, are no longer
registered as a broker-dealer with the Securities and Exchange Commission,
no longer possess any of the licenses, permits, authorizations or
registrations described in paragraph 113(b) or are for any reason unable
to perform legally any of your obligations under this Agreement.
You agree and acknowledge that your representations, warranties and
covenants are deemed to be made on the date of this agreement and on the
date you purchase Shares for sale to investors.
1.14 You agree and acknowledge that all liabilities arising hereunder,
whether direct or indirect, of any nature whatsoever, including without
limitation, liabilities arising in connection with any agreement of the Fund or
its Trustees as set forth herein to indemnify any party to this Agreement or any
other person, if any, shall be satisfied out of the assets of the Fund and that
no Trustee, officer or holder of Shares shall be personally liable for any of
the foregoing liabilities. The Fund's Agreement and Declaration of Trust
describes in detail the respective responsibilities and limitations on liability
of the Trustees, officers and holders of Shares.
1.15 In the event of any dispute between the parties, you agree that this
agreement shall be construed according to the laws of the state of New York.
2. Offering Price
Shares of any class of the Fund offered for sale by you shall be offered
for sale at a price per share (the "offering price") equal to (a) their net
asset value (determined in the manner set forth in the Fund's charter documents)
plus (b) a sales charge, if any and except to those persons set forth in the
then-current prospectus, which shall be the percentage of the offering price of
such Shares as set forth in the Fund's then-current prospectus. The offering
price, if not an exact multiple of one cent, shall be adjusted to the nearest
cent. In addition, Shares of any class of the Fund offered for sale by you may
be subject to a contingent deferred sales charge as set forth in the Fund's
then-current prospectus. You shall be entitled to receive any sales charge or
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contingent deferred sales charge in respect of the Shares. Any payments to
dealers shall be governed by a separate agreement between you and such dealer
and the Fund's then-current prospectus.
3. Term
This agreement shall continue until the date (the "Reapproval Date") set
forth on Exhibit A hereto (and, if the Fund has Series, a separate Reapproval
Date shall be specified on Exhibit A for each Series), and thereafter shall
continue automatically for successive annual periods ending on the day (the
"Reapproval Day") of each year set forth on Exhibit A hereto, provided such
continuance is specifically approved at least annually by (i) the Fund's Board
or (ii) vote of a majority (as defined in the Investment Company Act of 1940) of
the Shares of the Fund or the relevant Series, as the case may be, provided that
in either event its continuance also is approved by a majority of the Board
members who are not "interested persons" (as defined in said Act) of any party
to this agreement, by vote cast in person at a meeting called for the purpose of
voting on such approval. This agreement is terminable without penalty, on 60
days' notice, (a) by vote of holders of a majority of the Fund's or, as to any
relevant Series, such Series' outstanding voting securities, or (b) by the
Fund's Board as to the Fund or the relevant Series, as the case may be, or (c)
by you. This agreement also will terminate automatically, as to the Fund or
relevant Series, as the case may be, in the event of its assignment (as defined
in said Act).
Please confirm that the foregoing is in accordance with your
understanding and indicate your acceptance hereof by signing below, whereupon it
shall become a binding agreement between us.
Very truly yours,
MELLON INSTITUTIONAL FUNDS INVESTMENT
TRUST
By:
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Secretary and Vice President
Accepted:
MBSC SECURITIES CORPORATION
By:
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Executive Vice President
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EXHIBIT A
Name of Series Reapproval Date Reapproval Day
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Mellon Equity Large Cap Growth Fund December 31, 2007 December 31st
Mellon Equity Micro Cap Fund December 31, 2007 December 31st
Mellon Institutional Market Neutral Fund December 31, 2007 December 31st
▇▇▇▇▇▇ International Equity Fund December 31, 2007 December 31st
▇▇▇▇▇▇▇▇ Mellon Fixed Income Fund December 31, 2007 December 31st
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Global Fixed Income Fund December 31, 2007 December 31st
▇▇▇▇▇▇▇▇ Mellon High Yield Bond Fund December 31, 2007 December 31st
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Intermediate Tax Exempt Bond Fund December 31, 2007 December 31st
▇▇▇▇▇▇▇▇ Mellon International Fixed Income Fund December 31, 2007 December 31st
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ International Fixed Income Fund II December 31, 2007 December 31st
▇▇▇▇▇▇▇▇ Mellon Yield Plus Fund December 31, 2007 December 31st
The Boston Company Emerging Markets Core Equity Fund December 31, 2007 December 31st
The Boston Company International Core Equity Fund December 31, 2007 December 31st
The Boston Company International Core Equity Fund II December 31, 2007 December 31st
The Boston Company International Small Cap Fund December 31, 2007 December 31st
The Boston Company Large Cap Core Fund December 31, 2007 December 31st
The Boston Company Small Cap Growth Fund December 31, 2007 December 31st
The Boston Company Small Cap Value Fund December 31, 2007 December 31st
The Boston Company Small Cap Value Fund II December 31, 2007 December 31st
The Boston Company Small Cap Tax Sensitive Equity Fund December 31, 2007 December 31st
The Boston Company Small/Mid Cap Growth Fund December 31, 2007 December 31st
The Boston Company World ex-U.S. Value Fund December 31, 2007 December 31st
