Exhibit (e)(ii)
XXXXX & STEERS REALTY FOCUS FUND, INC.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
September __, 2004
Xxxxx & Steers Securities, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Distribution Agreement (Class I Shares Only)
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
Class I 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 (hereinafter 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 balance of
Class I shares of our common stock as shall then be effectively registered under
the Act. All subscriptions for Class I 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 Class I 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 Class I 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 Class I 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 Class I shares of
our common stock upon the terms and conditions contained herein and in the then
current Prospectus and Statement of Additional Information relating to the Class
I shares 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 Class I share or net asset value per Class I 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 Class I shares
of our common stock, such other information with respect to us and Class I
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 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 or Additional Information, as
then in effect, filed under the Act covering Class I 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 Class I 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 Class I 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 Class I 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
March 12, 1997, with Xxxxx & Steers Capital Management, Inc., we will pay all
fees and expenses of registering Class I shares of our common stock under the
Act and of qualification of Class I 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 effect 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 Class I 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 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 Class I 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,
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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 be stated
therein or necessary to make the statements therein not misleading to a
purchaser of our Class I 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 notification to be given by letter or by
telegram 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
may 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 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 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
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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 Class I shares of our common 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 the commencement of any litigation or proceeding
against us in connection with the issue and sale of any Class I 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 common 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 out 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 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 your own choosing,
satisfactory to us, if such action is based solely upon such alleged
misstatement or omission on your part, and in any 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, 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
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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, 2005 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 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
or 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 render services of any kind to any other
corporation, firm, individual or association.
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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,
Xxxxx & Steers Realty Focus Fund, Inc.
By
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Accepted:
Xxxxx & Steers Securities, LLC
By
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