EXHIBIT 10.3
SELECTED INVESTMENT ADVISOR AGREEMENT
CORPORATE PROPERTY ASSOCIATES INTERNATIONAL INCORPORATED
THIS SELECTED INVESTMENT ADVISOR AGREEMENT (the "Agreement") is made
and entered into as of the day indicated on Exhibit A attached hereto and by
this reference incorporated herein, between , CORPORATE PROPERTY ASSOCIATES
INTERNATIONAL INCORPORATED, a Maryland corporation (the "Company"), and the
selected investment advisor (the "SIA") identified in Exhibit A hereto.
WHEREAS, the Company is offering shares of the Company (the "Shares")
to the general public, pursuant to a public offering (the "Offering") of the
Shares pursuant to a Prospectus (as defined below) filed with the Securities and
Exchange Commission (the "SEC"); and
WHEREAS, the SIA is an entity, as designated in Exhibit A hereto,
organized and presently in good standing in the state or states designated in
Exhibit A hereto, presently registered as an investment advisor under the
Investment Advisers Act of 1940, as amended, and presently registered or
licensed as an investment advisor by the appropriate regulatory agency of each
state in which the SIA has clients, or exempt from such registration
requirements; and
WHEREAS, the Company has a currently effective registration statement
on Form S-11 (File No. 333-xxxxx), including a final prospectus, for the
registration of the Shares under the Securities Act of 1933, as amended (such
registration statement, as it may be amended, and the prospectus and exhibits on
file with the SEC, as well as any post-effective amendments or supplements to
such registration statement and any related registration statement filed under
Rule 462(b) of the Securities Act, and any prospectus relating to such
registration statements, being herein respectively referred to as the
"Registration Statement" and the "Prospectus"); and
WHEREAS, the offer and sale of the Shares shall be made pursuant to the
terms and conditions of the Registration Statement and the Prospectus and,
further, pursuant to the terms and conditions of all applicable federal
securities laws and the applicable securities laws of all states in which the
Shares are offered and sold; and
WHEREAS, the Company desires to give the clients of the SIA the
opportunity to purchase the Shares, and the SIA is willing and desires to
provide its clients with information concerning the Shares and the procedures
for subscribing for the Shares upon the following terms and conditions;
NOW, THEREFORE, in consideration of the premises and terms and
conditions thereof, it is agreed between the Company and the SIA as follows.
1. Purchase of Shares.
(a) Subject to the terms and conditions herein set forth, the
Company hereby makes available for purchase by the clients of the SIA a portion
of the Shares described in the Registration Statement. The SIA hereby covenants,
warrants and agrees that, in regard to any purchase of the Shares by its
clients, it will comply with all of the terms and conditions of the Registration
Statement and the Prospectus, all applicable state and federal laws, including
the
Securities Act of 1933, as amended, the Investment Advisers Act of 1940, as
amended, and any and all regulations and rules pertaining thereto, heretofore or
hereafter issued by the SEC. Neither the SIA nor any other person shall have any
authority to give any information or make any representations in connection with
the Shares other than as contained in the Registration Statement and Prospectus,
as amended and supplemented, and as is otherwise expressly authorized in writing
by the Company.
(b) Clients of the SIA may, following receipt of written notice by
the SIA from the Company of the effective date of the Registration Statement,
purchase the Shares according to all such terms as are contained in the
Registration Statement and the Prospectus. The SIA shall comply with all
requirements set forth in the Registration Statement and the Prospectus. The SIA
shall use and distribute, in connection with the Shares, only the Prospectus
and, if necessary, any separate prospectus relating solely to the Company's
Distribution Reinvestment and Stock Purchase Plan ("DRIP"), and such sales
literature and advertising materials which shall conform in all respects to any
restrictions of local law and the applicable requirements of the Securities Act
of 1933, as amended, and which has been approved in writing by the Company. The
Company reserves the right to establish such additional procedures as it may
deem necessary to ensure compliance with the requirements of the Registration
Statement, and the SIA shall comply with all such additional procedures to the
extent that it has received written notice thereof.
(c) All monies received for purchase of any of the Shares shall be
forwarded by the SIA to the Company for delivery to The Bank of New York (the
"Escrow Agent"), where such monies will be deposited in an escrow account
established by the Company solely for such subscriptions, except that, until
such time (if any) that such monies are deliverable to the Company pursuant to
the Escrow Agreement between the Company and the Escrow Agent, the SIA shall
return any check not made payable "The Bank of New York, Escrow Agent" directly
to the subscriber who submitted the check. Subscriptions will be executed as
described in the Registration Statement or as directed by the Company. Each SIA
receiving a subscriber's check will deliver such check to the Escrow Agent no
later than the close of business of the first business day after receipt of the
subscription documents by the SIA.
(d) During the full term of this Agreement the Company shall have
full authority to take such action as it may deem advisable in respect to all
matters pertaining to the performance of the SIA under this Agreement.
(e) The Shares may be purchased by clients of the SIA only where
the Shares may be legally offered and sold, only by such persons in such states
who shall be legally qualified to purchase the Shares, and only by such persons
in such states in which the SIA is registered as an investment advisor or exempt
from any applicable registration requirements.
(f) The SIA shall have no obligation under this Agreement to
advise its clients to purchase any of the Shares.
(g) The SIA will use every reasonable effort to assure that Shares
are purchased only by investors who:
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(1) meet the investor suitability standards, including
the minimum income and net worth standards established by the Company
and set forth in the Prospectus, and minimum purchase requirements set
forth in the Registration Statement;
(2) can reasonably benefit from an investment in the
Company based on each prospective investor's overall investment
objectives and portfolio structure;
(3) are able to bear the economic risk of the investment
based on each prospective investor's overall financial situation; and
(4) have apparent understanding of: (a) the fundamental
risks of the investment; (b) the risk that the prospective investor may
lose the entire investment; (c) the lack of liquidity of the Shares;
(d) the restrictions on transferability of the Shares; (e) the
background and qualifications of the employees and agents of W. P.
Xxxxx International LLC, the advisor to the Company; and (f) the tax
consequences of an investment in the Shares.
(5) The SIA will make the determinations required to be
made by it pursuant to subparagraph (g) based on information it has
obtained from each prospective investor, including, at a minimum, but
not limited to, the prospective investor's age, investment objectives,
investment experience, income, net worth, financial situation, other
investments of the prospective investor, as well as any other pertinent
factors deemed by the SIA to be relevant.
(h) In addition to complying with the provisions of subparagraph
(g) above, and not in limitation of any other obligations of the SIA to
determine suitability imposed by state or federal law, the SIA agrees that it
will comply fully with the following provisions:
(1) The SIA shall have reasonable grounds to believe,
based upon information provided by the investor concerning his
investment objectives, other investments, financial situation and
needs, and upon any other information known by the SIA, that (A) each
client of the SIA that purchases Shares is or will be in a financial
position appropriate to enable him to realize to a significant extent
the benefits (including tax benefits) of an investment in the Shares,
(B) each client of the SIA that purchases Shares has a fair market net
worth sufficient to sustain the risks inherent in an investment in the
Shares (including potential loss and lack of liquidity), and (C) the
Shares otherwise are or will be a suitable investment for each client
of the SIA that purchases Shares, and the SIA shall maintain files
disclosing, the basis upon which the determination of suitability was
made;
(2) The SIA shall not execute any transaction involving
the purchase of Shares in a discretionary account without prior written
approval of the transactions by the investor;
(3) The SIA shall have reasonable grounds to believe,
based upon the information made available to it, that all material
facts are adequately and accurately disclosed in the Registration
Statement and provide a basis for evaluating the Shares;
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(4) In making the determination set forth in subparagraph
(3) above, the SIA shall evaluate items of compensation, physical
properties, tax aspects, financial stability and experience of the
sponsor, conflicts of interest and risk factors, appraisals, as well as
any other information deemed pertinent by it;
(5) The SIA shall inform each prospective investor of all
pertinent facts relating to the liquidity and marketability of the
Shares.
(i) The SIA agrees to retain in its files, for a period of at
least six years, information which will establish that each purchaser of Shares
falls within the permitted class of investors.
(j) The SIA either (i) shall not purchase shares for its own
account or (ii) shall hold for investment any Shares purchased for its own
account.
(k) The SIA hereby confirms that it is familiar with Securities
Act Release No. 4968 and Rule 15c2-8 under the Securities Exchange Act of 1934,
as amended, relating to the distribution of preliminary and final prospectuses,
and confirms that it has complied and will comply therewith.
(1) The SIA shall deliver a copy of Section 260.141.11 of the
California Corporate Securities Law of 1968 to each client of the SIA that
purchases Shares and resides in California.
(m) A sale of Shares shall be deemed to be completed only after
the Company receives a properly completed subscription agreement for Shares from
the SIA evidencing the fact that the investor had received a final Prospectus
for a period of not less than five full business days, together with payment of
the full purchase price of each purchased Share from a buyer who satisfies each
of the terms and conditions of the Registration Statement and Prospectus, and
only after such subscription agreement has been accepted in writing by the
Company.
(n) Clients of an SIA who have been advised by such SIA on an
ongoing basis regarding investments other than in the Company, and who are not
being charged by such SIA, through the payment of commissions or otherwise,
direct transaction based fees in connection with the purchase of the Shares,
shall purchase the Shares net of 6.5% commissions, at a per Share purchase price
of $9.35.
2. Compensation to SIA.
The Company shall pay no fees, commissions, or other compensation to
the SIA.
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3. Association of the Company with Other Advisors and Dealers.
It is expressly understood between the Company and the SIA that the
Company may cooperate with broker-dealers who are registered as broker-dealers
with the National Association of Securities Dealers, Inc. (the "NASD") or with
other investment advisors registered under the Investment Advisers Act of 1940,
as amended. Such broker-dealers and investment advisors may enter into
agreements with the Company on terms and conditions identical or similar to this
Agreement and shall receive such rates of commission or other fees as are agreed
to between the Company and the respective broker-dealers and investment advisors
and as are in accordance with the terms of the Registration Statement.
4. Conditions of the SIA's Obligations.
The SIA's obligations hereunder are subject, during the full term of
this Agreement and the Offering, to (a) the performance by the Company of its
obligations hereunder and compliance by the Company with the covenants set forth
in Section 7 hereof; and (b) the conditions that: (i) the Registration Statement
shall become and remain effective; and (ii) no stop order shall have been issued
suspending the effectiveness of the Offering.
5. Conditions to the Company's Obligations.
The obligations of the Company hereunder are subject, during the full
term of this Agreement and the Offering, to the conditions that: (a) at the
effective date of the Registration Statement and thereafter during the term of
this Agreement while any Shares remain unsold, the Registration Statement shall
remain in full force and effect authorizing the offer and sale of the Shares;
(b) no stop order suspending the effectiveness of the Offering or other order
restraining the offer or sale of the Shares shall have been issued nor
proceedings therefor initiated or threatened by any state regulatory agency or
the SEC; and (c) the SIA shall have satisfactorily performed all of its
obligations hereunder and complied with the covenants set forth in Section 6
hereof.
6. Covenants of the SIA.
The SIA covenants, warrants and represents, during the full term of
this Agreement, that:
(a) The SIA is registered as an investment advisor under the
Investment Advisers Act of 1940, as amended, and registered or licensed as an
investment advisor by the appropriate regulatory agency of each state in which
the advisor has clients, or exempt from such registration requirements.
(b) Neither the SIA nor any person associated with the SIA is
registered as a broker-dealer or registered representative with the NASD.
(c) The SIA shall comply with all applicable federal and state
securities laws, including, without limitation, the disclosure requirements of
the Investment Advisers Act of 1940, as amended, and the provisions thereof
requiring disclosure of the existence of this Agreement and the compensation to
be paid to the SIA hereunder.
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(d) The SIA shall maintain the records required by Section 204 of
the Investment Advisers Act of 1940, as amended, and Rule 204-2 thereunder in
the form and for the periods required thereby.
7. Covenants of the Company.
The Company covenants, warrants and represents, during the full term of
this Agreement, that:
(a) It shall use its best efforts to maintain the effectiveness of
the Registration Statement and to file such applications or amendments to the
Registration Statement as may be reasonably necessary for that purpose.
(b) It shall inform the SIA whenever and as soon as it receives or
learns of any order issued by the SEC, any state regulatory agency or any other
regulatory agency which suspends the effectiveness of the Registration Statement
or prevents the use of the Prospectus or which otherwise prevents or suspends
the offering or sale of the Shares, or receives notice of any proceedings
regarding any such order.
(c) It shall use its best efforts to prevent the issuance of any
order described herein at subparagraph (b) hereof and to obtain the lifting of
any such order if issued.
(d) It shall give the SIA written notice when the Registration
Statement becomes effective and shall deliver to the SIA such number of copies
of the Prospectus, and any supplements and amendments thereto, which are finally
approved by the SEC, as the SIA may reasonably request for sale of the Shares.
(e) It shall promptly notify the SIA of any post-effective
amendments or supplements to the Registration Statement or Prospectus, and shall
furnish the SIA with copies of any revised Prospectus and/or supplements and
amendments to the Prospectus and/or any prospectus relating solely to the DRIP.
(f) It shall keep the SIA fully informed of any material
development to which the Company is a party or which concerns the business and
condition of the Company.
(g) It shall use its best efforts to cause, at or prior to the
time the Registration Statement becomes effective, the qualification of the
Shares for offering and sale under the securities laws of such states as the
Company shall elect.
(h) The SIA and any person associated with the SIA has complied,
in all material respects, with the identification, verification, and
documentation sections of the Patriot Act.
8. Payment of Costs and Expenses.
The SIA shall pay all costs and expenses incident to the performance of
its obligations under this Agreement.
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9. Indemnification.
(a) The SIA agrees to indemnify, defend and hold harmless the
Company, its affiliates and their or its officers, directors, trustees,
employees and agents, against all losses, claims, demands, liabilities and
expenses, joint or several, including reasonable legal and other expenses
incurred in defending such claims or liabilities, whether or not resulting in
any liability to the Company, its affiliates and their or its officers,
directors, trustees, employees or agents, which they or any of them may incur
arising out of (i) the offer or sale (as such term is defined in the Securities
Act of 1933, as amended) by the SIA, or any person acting on its behalf, of any
Shares pursuant to this Agreement, if such loss, claim, demand, liability, or
expense arises out of or is based upon an untrue statement or alleged untrue
statement of a material fact, or any omission or alleged omission of a material
fact, other than a statement, omission, or alleged omission by the SIA which is
also, as the case may be, contained in or omitted from the Prospectus or the
Registration Statement and which statement or omission was not based on
information supplied to the Company by such SIA; (ii) the breach by the SIA, or
any person acting on its behalf, of any of the terms and conditions of this
Agreement; or (iii) the negligence, malpractice or malfeasance of the SIA. This
indemnity provision shall survive the termination of this Agreement.
(b) The Company agrees to indemnify, defend and hold harmless the
SIA, its officers, directors, employees and agents, against all losses, claims,
demands, liabilities and expenses, including reasonable legal and other expenses
incurred in defending such claims or liabilities, which they or any of them may
incur, including, but not limited to, alleged violations of the Securities Act
of 1933, as amended, but only to the extent that such losses, claims, demands,
liabilities and expenses shall arise out of or be based upon (i) any untrue
statement of a material fact contained in the Prospectus or the Registration
Statement, as filed and in effect with the SEC, or in any amendment or
supplement thereto, or in any application prepared or approved in writing by
counsel to the Company and filed with any state regulatory agency in order to
register or qualify the Shares under the securities laws thereof (the "Blue Sky
applications"), or (ii) any omission or alleged omission to state therein a
material fact required to be stated in the Prospectus or the Registration
Statement or the Blue Sky applications, or necessary to make such statements,
and any part thereof, not misleading; provided, further, that any such untrue
statement, omission or alleged omission is not based on information included in
any such document which was supplied to the Company, or any officer of the
Company by such SIA; provided in each case that such claims or liabilities did
not arise from SIA's own negligence, malpractice or malfeasance. This indemnity
provision shall survive the termination of this Agreement.
(c) No indemnifying party shall be liable under the indemnity
agreements contained in subparagraphs (a) and (b) above unless the party to be
indemnified shall have notified such indemnifying party in writing promptly
after the summons or other first legal process giving information of the nature
of the claim served upon the party to be indemnified, but failure to notify an
indemnifying party of any such claim shall not relieve it from any liabilities
which it may have to the indemnified party against whom action is brought other
than on account of its indemnity agreement contained in subparagraphs (a) and
(b) above. In the case of any such claim, if the party to be indemnified
notified the indemnifying party of the commencement
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thereof as aforesaid, the indemnifying party shall be entitled to participate at
its own expense in the defense of such claim. If it so elects, in accordance
with arrangements satisfactory to any other indemnifying party or parties
similarly notified, the indemnifying party has the option to assume the entire
defense of the claim, with counsel who shall be satisfactory to such indemnified
party and all other indemnified parties who are defendants in such action; and
after notice from the indemnifying party of its election so to assume the
defense thereof and the retaining of such counsel by the indemnifying party, the
indemnifying party shall not be liable to such indemnified party under
subparagraphs (a) and (b) above for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof, other
than for the reasonable costs of investigation.
10. Term of Agreement.
This Agreement shall become effective on the date on which this
Agreement is executed by the Company and the SIA. The SIA and the Company may
each prevent this Agreement from becoming effective, without liability to the
other, by written notice before the time this Agreement otherwise would become
effective. After this Agreement becomes effective, either party may terminate it
at any time for any reason by giving thirty (30) days' written notice to the
other party; provided, however, that this Agreement shall in any event
automatically terminate at the first occurrence of any of the following events:
(a) the Registration Statement for offer and sale of the Shares shall cease to
be effective; (b) the Offering shall be terminated; or (c) the SIA's license or
registration to act as an investment advisor shall be revoked or suspended by
any federal, self-regulatory or state agency and such revocation or suspension
is not cured within ten (10) days from the date of such occurrence. In any
event, this Agreement shall be deemed suspended during any period for which such
license is revoked or suspended.
11. Notices.
All notices and communications hereunder shall be in writing and shall
be deemed to have been given and delivered when deposited in the United States
mail, postage prepaid, registered or certified mail, to the applicable address
set forth below.
If sent to the Company:
CORPORATE PROPERTY ASSOCIATES INTERNATIONAL
INCORPORATED
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
If sent to the SIA: to the person whose name and address are identified
in Exhibit A hereto.
12. Successors.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and shall not be assigned or transferred by the SIA by operation
of law or otherwise.
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13. Miscellaneous.
(a) This Agreement shall be construed in accordance with the
applicable laws of the State of New York.
(b) Nothing in this Agreement shall constitute the SIA as in
association with or in partnership with the Company.
(c) The terms of this Agreement may be extended to cover
additional offerings of shares of the Company by the execution by the parties
hereto of an addendum identifying the shares and registration statement relating
to such additional offering. Upon execution of such addendum, the terms
"Shares", "Offering", "Registration Statement" and "Prospectus" set forth herein
shall be deemed to be amended as set forth in such addendum.
(d) This Agreement, including Exhibit A hereto, embodies the
entire understanding, between the parties to the Agreement, and no variation,
modification or amendment to this Agreement shall be deemed valid or effective
unless it is in writing and signed by both parties hereto.
(e) If any provision of this Agreement shall be deemed void,
invalid or ineffective for any reason, the remainder of the Agreement shall
remain in full force and effect.
(f) This Agreement may be executed in counterpart copies, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument comprising this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year indicated on Exhibit A hereto.
SELECTED INVESTMENT ADVISOR COMPANY
___________________________________ CORPORATE PROPERTY ASSOCIATES
(Name of SIA) INTERNATIONAL INCORPORATED
By:________________________________ By:__________________________
Print Name:_____________________ Print Name:_______________
Title:__________________________ Title:____________________
Witness:___________________________ Witness:_____________________
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EXHIBIT A
TO
SELECTED INVESTMENT ADVISOR AGREEMENT
OF
CORPORATE PROPERTY ASSOCIATES INTERNATIONAL INCORPORATED
This Exhibit A is attached to and made a part of that certain Selected
Investment Advisor Agreement, dated as of the ______ day of _______,_____, by
and between Corporate Property Associates International Incorporated, as
Company, and ____________________________, as Advisor.
1. Date of Agreement:_____________________________________________________
2. Identity of Advisor:___________________________________________________
Name:__________________________________________________________________
Type of Entity:
________________________________________________________
(To be completed by the advisor, e.g., corporation,
partnership or sole proprietorship.)
State Organized in:
____________________________________________________
(To be completed by Advisor.)
Qualified To Do Business and in Good Standing in the Following Jurisdictions
(including your state of organization). (Note: Qualification to do business in
any jurisdiction is generally a requirement imposed by the secretary of state or
other authority of jurisdictions in which you do business, and is not related to
your holding a license as an investment advisor in such jurisdictions. Questions
concerning this matter should be directed to you your legal counsel)
________________________________________________________________________________
________________________________________________________________________________
(To be completed by the advisor)
Registered as an Investment Advisor in The Following States:
________________________________________________________________________________
________________________________________________________________________________
(To be completed by the advisor)
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3. Name and Address for Notice Purposes (see Paragraph 11 of Agreement):
Name:__________________________________________________________________
Title:_________________________________________________________________
Company:_______________________________________________________________
Address:_______________________________________________________________
City, State and Zip Code:______________________________________________
Telephone Number (including area code):________________________________
4. Please complete the following for our records:
(a) How many registered investment advisors are with your firm?
____________________ PLEASE ENCLOSE A CURRENT LIST. ALL
INFORMATION WILL BE HELD IN CONFIDENCE.
(b) Does your firm publish a newsletter? Yes____ No_____
What is/are the frequency of the publication(s)?
___Weekly ___Monthly __Quarterly
___Bi-weekly ___Bi-monthly __Other (please specify)
PLEASE PLACE CPA(R):I ON YOUR MAILING LIST AND PROVIDE A
SAMPLE OF THE PUBLICATION IF AVAILABLE.
(c) Does your firm have regular internal mailings, or bulk package
mailings to its registered investment advisors?
Yes___ No____
PLEASE PLACE CPA(R):I ON YOUR MAILING LIST AND PROVIDE A
SAMPLE OF THE PUBLICATION IF AVAILABLE.
(d) Does your firm have a computerized electronic mail (E-Mail)
system for your registered investment advisors?
Yes___ No___
If so, please provide e-mail address:_________________________
(e) Website address:______________________________________________
Person responsible:___________________________________________
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