▇▇▇▇▇ & STEERS REALTY SHARES, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
March 11, 1992
▇▇▇▇▇ & Steers Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. In consideration of the agreements on your part herein contained and of
the payment by us to you of a fee of $1 per year and on the terms and conditions
set forth herein, we have agreed that you shall be, for the period of this
agreement, a distributor, as our agent, for the unsold portion of such number of
shares of our common stock, $.001 par value per share, as may be effectively
registered from time to time under the Securities Act of 1933, as amended
(herein after referred to as the 'Act').
2. We hereby agree that you will act as our agent, and hereby appoint you
our agent, to offer, and to solicit offers to subscribe to, the unsold balances
of shares of our common stock as shall then be effectively registered under the
Act. All subscriptions for shares of our common stock obtained by you shall be
directed to us for acceptance and shall not be binding on us until accepted by
us. You shall have no authority to make binding subscriptions on our behalf. We
reserve the right to
sell shares of our common stock through other distributors or directly to
investors through subscriptions received by us at our principal office in New
York, New York. The right given to you under this agreement shall not apply to
shares of our common stock issued in connection with (a) the merger or
consolidation of any other investment company with us, (b) our acquisition by
purchase or otherwise of all or substantially all of the assets or stock of any
other investment company, or (c) the reinvestment in shares of our common stock
by our stockholders of dividends or other distributions or any other offering by
us of securities to our stockholders.
3. You will use your best efforts to obtain subscriptions to shares of our
common stock upon the terms and conditions contained herein and in the then
current Prospectus and Statement of Additional Information including the
offering price. You will send to us promptly all subscriptions placed with you.
We will advise you of the approximate net asset value per share or net asset
value per share (as used in the Prospectus or Statement of Additional
Information) on any date requested by you and at such other times as it shall
have been determined by us. We shall furnish you from time to time, for use in
connection with the offering of shares of our common stock, such other
information with respect to us and shares of our common stock as you may
reasonably request. We shall supply you with such copies of our current
Prospectus and Statement of Additional
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Information in effect from time to time as you may request. You are not
authorized to give any information or to make any representations, other than
those contained in the Registration Statement, Prospectus or Statement of
Additional Information, as then in effect, filed under the Act covering shares
of our common stock or which we may authorize in writing. You may use employees,
agents and other persons who may not be your employees or agents, at your cost
and expense, to assist you in carrying out your obligations hereunder, but no
such employee, agent or other person shall be deemed to be your agent or have
any rights under this agreement.
4. We reserve the right to suspend the offering of shares of our common
stock at any time, in the absolute discretion of our Board of Directors, and
upon notice of such suspension you shall cease to offer shares of our common
stock hereunder.
5. Both of us will cooperate with each other in taking such action as may be
necessary to qualify shares of our common stock for sale under the securities
laws of such states as we may designate, provided, that you shall not be
required to register as a broker-dealer or file a consent to service of process
in any such state. Pursuant to our Investment Advisory Agreement dated June 28,
1991, with ▇▇▇▇▇ & Steers Capital Management, Inc., we will pay all fees and
expenses of registering shares of our common stock under the Act and of
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qualification of shares of our common stock and our qualification under
applicable state securities laws. You shall pay all expenses relating to your
broker-dealer qualification.
6. We represent to you that our Registration Statement, Prospectus and
Statement of Additional Information (as in event from time to time) under the
Act have been or will be, as the case may be, carefully prepared in conformity
with the requirements of the Act and the rules and regulations of the Securities
and Exchange Commission thereunder. We represent and warrant to you that your
Registration Statement, Prospectus and Statement of Additional Information
contain or will contain all statements required to be stated therein in
accordance with the Act and the rules and regulations of said commission, and
that all statements of fact contained or to be contained therein are or will be
true and correct at the time indicated or the effective date as the case may be;
that our Registration Statement, Prospectus and Statement of Additional
Information when any of them shall become effective or be authorized for use,
will not 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 to a purchaser of shares of our common stock. We will
from time to time file such amendment or amendments to our Registration
Statement, Prospectus and Statement of Additional Information as, in the light
of future developments, shall, in the opinion of our
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counsel, be necessary in order to have our Registration Statement, Prospectus
and Statement of Additional Information at all times contain all material facts
required to be stated therein or necessary to make any statements therein not
misleading to a purchaser of shares of our common stock, but, if we shall not
file such amendment or amendments within fifteen days after receipt by us of a
written request from you to do so, you may, at your option, terminate this
agreement immediately. We shall not file any amendment to our Registration
Statement, Prospectus or Statement of Additional Information without giving you
reasonable notice thereof in advance; provided, however, that nothing contained
in this agreement shall in any way limit our right to file at any time such
amendments to our Registration Statement, Prospectus or Statement of Additional
Information of whatever character, as we may deem advisable, such right being in
all respects absolute and unconditional. We represent and warrant to you that
any amendment to our Registration Statement, Prospectus or Statement of
Additional Information hereafter filed by us will, when it becomes effective,
contain all statements required to be stated therein in accordance with the Act
and the rules and regulations of said commission, that all statements of fact
contained therein will, when the same shall become effective, be true and
correct and that no such amendment, when it becomes effective, will include an
untrue statement of a material fact or will omit to state a material fact
required to
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be stated therein or necessary to make the statements therein not misleading to
a purchaser of our shares.
7. We agree to indemnify, defend and hold you, and any person who controls
you within the meaning of Section 15 of the 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 you or any such controlling
person may incur, under the Act, or under common law or otherwise, arising out
of or based upon any alleged untrue statement of a material fact contained in
our Registration Statement, Prospectus or Statement of Additional Information in
effect from time to time under the Act or arising out of or based upon any
alleged omission to state a material fact required to be stated in either
thereof or necessary to make the statements in either thereof not misleading:
provided, however, that in no event shall anything herein contained be so
construed as to protect you against any liability to us or our security holders
to which you would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of your duties, or by reason of
your reckless disregard of your obligations and duties under this agreement. Our
agreement to indemnify you and any such controlling person as aforesaid is
expressly conditioned upon our being notified of any action brought against you
or any such controlling person, such
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notification to be given by letter or by telephone addressed to us at our
principal office in New York, New York, and sent to us by the person against
whom such action is brought within ten days after the summons or other first
legal process shall have been served. The failure so to notify us of any such
action shall not relieve us from any liability which we have to the person
against whom such action is brought by reason of any such alleged untrue
statement or omission otherwise than on account of our indemnity agreement
contained in this paragraph 7. We will be entitled to assume the defense of any
suit brought to enforce any such claim, and to retain counsel of good standing
chosen by us and approved by you. In the event we do elect to assume the defense
of any such suit and retain counsel of food standing approved by you, the
defendant or defendants in such suit shall bear the fees and expense of any
additional counsel retained by any of them; but in the case we do not elect to
assume the defense of any such suit, or in case you do not approve of counsel
chosen by us, we will reimburse you 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. Our indemnification agreement contained in this
paragraph 7 and our 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 or any controlling person and shall survive the sale
of any shares of our common
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stock made pursuant to subscriptions obtained by you. This agreement of
indemnity will inure exclusively to your benefit, to the benefit of your
successors and assigns, and to the benefit of any controlling persons and their
successors and assigns. We agree promptly to notify you of this commencement of
any litigation or proceeding against us in connection with the issue and sale of
any shares of our common stock.
8. You agree to indemnify, defend and hold us, our several officers and
directors, and any person who controls us within the meaning of Section 15 of
the 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 reasonable counsel fees incurred in
connection therewith) which we, our officers or directors, or any such
controlling person may incur under the Act or under chosen law or otherwise, but
only to the extent that such liability, or expense incurred by us, our officers
or directors or such controlling person resulting from such claims or demands
shall arise out of or be based upon any alleged untrue statement of a material
fact contained in information furnished in writing by you to us for use in our
Registration Statement, Prospectus or Statement of Additional Information in
effect from time to time under the Act, or shall arise our of or be based upon
any alleged omission to state a material fact in connection with such
information required to be stated in the Registration
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Statement, Prospectus or Statement of Additional Information or necessary to
make such information not misleading. Your agreement to indemnify us, our
officers or directors, and any such controlling person as aforesaid is expressly
conditioned upon your being notified of any action brought against us, our
officers or directors or any such controlling person, such notification to be
given by letter or telegram addressed to you at your principal office in New
York, New York, and sent to you by the person against whom such action is
brought, within ten days after the summons or other first legal process shall
have been served. You shall have a right to control the defense of such action,
with counsel of you own choosing, satisfactory to us, if such action is based
upon such alleged misstatement or omission on your part, and in ay other event
you and we, our officers or directors 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 us, to our officers or directors,
or to such controlling person by reason of any such untrue statement or omission
on your part otherwise than on account of your indemnity agreement contained in
this paragraph 8.
9. We agree to advise you immediately:
(a) of any request by the Securities and Exchange Commission for
amendments to our Registration Statement,
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Prospectus or Statement of Additional Information 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 our
Registration Statement, Prospectus or Statement of Additional Information or
the initiation of any proceedings for that purpose,
(c) of the happening of any material event which makes untrue any
statement made in our Registration Statement, Prospectus or Statement of
Additional Information or which requires the making of a change in any
thereof in order to make the statements therein not misleading, and
(d) of all action of any Securities and Exchange Commission with respect
to any amendments to our Registration Statement, Prospectus or Statement of
Additional Information which may from time to time be filed with the
Securities and Exchange Commission under the Act.
10. This Agreement shall become effective on the date hereof and shall
remain in effect until December 31, 1993, and thereafter automatically for
successive twelve-month periods (computed from each January 1) provided that
such continuance is specifically approved at least annually by a vote of a
majority of our outstanding voting securities, as defined in the Investment
Company Act of 1940, as amended, or by our Board of Directors, and in either
case by a majority of our directors who
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are not parties to this agreement or interested persons, as defined in the
Investment Company Act of 1940, of any such party. This agreement may be
terminated at any time, without the payment of any penalty, by vote of a
majority of our outstanding voting securities (as so defined), or by a vote of a
majority of our Directors who are not parties to this agreement or interested
persons (as defined in the Investment Company Act of 1940, as amended) of any
party to this agreement, on sixty days' written notice to you, or by you on
sixty days' written notice to us.
11. This agreement may not be transferred, assigned, sold or in any manner
hypothecated or pledged by you and this agreement shall terminate automatically
in the event of any such transfer, assignment, sale, hypothecation or pledge.
The terms 'transfer', 'assignment', and 'sale' as used in this paragraph shall
have the meanings ascribed thereto by governing law and any interpretation
thereof contained in rules or regulations promulgated by the Securities and
Exchange Commission thereunder.
12. Except to the extent necessary to perform your obligations hereunder,
nothing herein shall be deemed to limit or restrict your right, or the right of
any of your officers, directors or employees who may also be a director, officer
of employee of ours, to engage in any other business or to devote time and
attention to the management or other aspects of any other business, whether of a
similar or dissimilar nature, or to
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render services of any kind to any other corporation, firm, individual or
association.
If the foregoing is in accordance with your understanding, will you kindly
so indicate by signing and returning to us the enclosed copy hereof.
Very truly yours,
▇▇▇▇▇ & Steers Realty Shares, Inc.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇
President
Accepted:
▇▇▇▇▇ & Steers Securities, Inc.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman
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