UNDERWRITING AGREEMENT
This UNDERWRITING AGREEMENT, made this 3rd day of June, 1998, by and
between LM Institutional Fund Advisors II, Inc., a Maryland corporation
("Corporation"), and Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, a Maryland
corporation (the "Distributor").
WHEREAS, the Corporation has filed a registration statement with the
Securities and Exchange Commission for the purpose of registering as a series
type open-end, investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and for the purpose of registering the shares of
common stock of the Corporation (the "Shares") for sale to the public under the
Securities Act of 1933, as amended (the "1933 Act"); and will register the
Shares as may be required by the provisions of various state securities laws;
and
WHEREAS, the Corporation intends to offer for public sale distinct
series of Shares ("Series") which may be offered in one or more classes, each
Series corresponding to a distinct portfolio as listed on Schedule A hereto; and
WHEREAS, the Corporation wishes to retain the Distributor as the
principal underwriter in connection with the offering and sale of the Shares and
to furnish certain other services to the Corporation as specified in this
Agreement; and
WHEREAS, this Agreement has been approved by a vote of the
Corporation's Board of Directors and certain directors who are not interested
persons of the Corporation or the Distributor in conformity with Section 15(c)
of the 1940 Act; and
WHEREAS, the Distributor is willing to act as principal underwriter and
to furnish such services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1. The Corporation hereby appoints the Distributor as principal
underwriter in connection with the offering and sale of the Shares of the
Series. The Corporation authorizes the Distributor, as agent for the
Corporation, upon the commencement of operations of any Series and subject to
applicable federal and state law and the Articles of Incorporation and By-Laws
of the Corporation and to such terms and conditions as the Corporation may
specify: (a) to promote the Series; (b) to solicit orders for the purchase of
the Shares of the Series; and (c) to accept orders for the purchase of the
Shares on behalf of the Corporation. The Distributor shall comply with all
applicable federal and state laws and offer the Shares of each Series on an
agency or "best efforts" basis under which the Corporation shall issue only such
Shares as are actually sold.
2. The public offering price of the Shares of each class of each Series
shall be the net asset value per share (as determined by the Corporation) of the
outstanding Shares of the relevant class of the Series. The Corporation shall
furnish the Distributor with a statement of each computation of net asset value
and of the details entering into such computation.
3. As used in this Agreement, the term "Registration Statement" shall
mean the registration statement most recently filed by the Corporation with the
Securities and Exchange Commission and effective under the 1940 Act and 1933
Act, as such Registration Statement is amended by any amendments thereto at the
time in effect, and the terms "Prospectus" and "Statement of Additional
Information" shall mean, respectively, the form of prospectus and statement of
additional information filed
by the Corporation with the Securities and Exchange Commission as part of the
Registration Statement or otherwise, as they may be amended from time to time.
4. In connection with sales and offers of sale of Shares, the
Distributor shall give only such information and make only such statements or
representations as are contained in the Prospectus, Statement of Additional
Information, or in information furnished in writing to the Distributor by the
Corporation, and the Corporation shall not be responsible in any way for any
other information, statements or representations given or made by the
Distributor or its representatives or agents. Except as specifically provided in
this Agreement, the Corporation shall bear none of the expenses of the
Distributor in connection with its offer and sale of the Shares.
5. The Corporation agrees at its own expense to register the Shares
with the Securities and Exchange Commission, state and other regulatory bodies
as required, and to prepare and file from time to time such Prospectuses,
Statements of Additional Information, amendments, reports and other documents as
may be necessary to maintain the Registration Statement. The Corporation shall
bear all expenses related to preparing and typesetting such Prospectuses,
Statements of Additional Information, and other materials required by law and
such other expenses, including printing and mailing expenses, related to the
Corporation's communications with persons who are shareholders of the Series.
6. The Corporation agrees to indemnify, defend and hold the
Distributor, its several officers and directors, and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act, 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
Distributor, its officers or directors, or any such controlling person may
incur, under the 1933 Act or under common law or otherwise, arising out of or
based upon any alleged untrue statement of a material fact contained in the
Registration Statement or arising out of or based upon any alleged omission to
state a material fact required to be stated or necessary to make the
Registration Statement not misleading, provided that in no event shall anything
contained in this Agreement be construed so as to protect the Distributor
against any liability to the Corporation or its shareholders to which the
Distributor would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of its duties, or by reason of its
reckless disregard of its obligations and duties under this Agreement.
7. The Distributor agrees to indemnify, defend and hold the
Corporation, its several officers and directors, and any person who controls the
Corporation within the meaning of Section 15 of the 1933 Act, 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
Corporation, its officers or directors, or any such controlling person may
incur, under the 1933 Act or under common law or otherwise, arising out of or
based upon any alleged untrue statement of a material fact contained in
information furnished in writing by the Distributor to the Corporation for use
in the Registration Statement or arising out of or based upon any alleged
omission to state a material fact in connection with such information required
to be stated in the Registration Statement or necessary to make such information
not misleading.
8. The Corporation reserves the right at any time to withdraw all
offerings of the Shares of any or all Series by written notice to the
Distributor at its principal office.
9. The Corporation shall not issue certificates representing Shares
unless requested by a shareholder. If such request is transmitted through the
Distributor, the Corporation will cause certificates evidencing the Shares owned
to be issued in such names and denominations as the Distributor shall from time
to time direct, provided that no certificates shall be issued for fractional
Shares.
10. The Distributor agrees to act as agent for the Corporation to
receive and transmit promptly to the Corporation's transfer agent shareholder
requests for redemption of Shares.
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11. The Distributor is an independent contractor and shall be agent for
the Corporation only in respect to the sale and redemption of the Shares.
12. The services of the Distributor to the Corporation under this
Agreement are not to be deemed exclusive. The Distributor shall be free to
render similar services or other services to others so long as its services
hereunder are not impaired thereby. The Corporation shall be free, in its sole
discretion, to distribute its own Shares to prospective investors, to make
arrangements with other broker/dealers with respect to distribution of Shares,
and to repurchase its Shares from investors, without utilizing or notifying the
Distributor.
13. As used in this Agreement, the terms "securities" and "net assets"
shall have the meanings ascribed to them in the Articles of Incorporation of the
Corporation; and the terms "assignment", "interested persons", and "majority of
the outstanding voting securities" shall have the meanings given to them by
Section 2(a) of the 1940 Act, subject to such exemptions as may be granted by
the Securities and Exchange Commission by any rule, regulation or order.
14. Subject to the provisions of paragraphs 15 and 16 below, this
Agreement will remain in effect for one year from the date of its execution and
from year to year thereafter.
15. This Agreement shall automatically terminate in the event of its
assignment and may be terminated at any time with respect to some or all of the
Series without the payment of any penalty by the Corporation or by the
Distributor on sixty (60) days' written notice to the other party. The
Corporation may effect such termination by a vote of (i) a majority of the
Corporation's Board of Directors, (ii) a majority of the Directors who are not
interested persons of the Corporation and who have no direct or indirect
financial interest in the operation of this Agreement (the "Disinterested
Directors"), or (iii) a majority of the outstanding voting securities of the
Corporation or the relevant Series, as the case may be.
16. This Agreement shall be submitted for approval to the Corporation's
Board of Directors at least annually and shall continue in effect only so long
as specifically approved at least annually (i) by a majority vote of the
Corporation's Board of Directors, and (ii) by the vote of a majority of the
Disinterested Directors, cast in person at a meeting called for the purpose of
voting on such approval.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be
executed by their officers thereunto duly authorized.
Attest: LM INSTITUTIONAL FUND ADVISORS II, INC.
By:_____________________ By:____________________________________
Attest: XXXX XXXXX XXXX XXXXXX, INCORPORATED
By:_____________________ By:____________________________________
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SCHEDULE A
SERIES OF LM INSTITUTIONAL FUND ADVISORS II, INC.
TO WHICH UNDERWRITING AGREEMENT APPLIES
PORTFOLIO AND CLASS* DATE SUBJECT TO AGREEMENT
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Xxxx Xxxxx Fund Adviser Large Cap
Value Portfolio June 3, 1998
Xxxx Xxxxx Fund Adviser Mid Cap
Value Portfolio June 3, 1998
Brandywine Small Cap Value Portfolio June 3, 1998
Batterymarch International Equity Portfolio June 3, 1998
Batterymarch Emerging Markets Portfolio June 3, 1998
Xxxx Xxxxx Fund Adviser/Western Asset
Balanced Portfolio June 3, 1998
Xxxx Xxxxx Fund Adviser Total Return
Portfolio June 3, 1998
*Unless otherwise indicated, each Portfolio listed includes all Classes offered
by that Portfolio. Each Portfolio is authorized to be issued in two classes, the
Institutional Class and the Financial Intermediary Class.
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