Investors During the Escrow Period, Investors will be instructed by the Dealer Manager or any Soliciting Dealers to remit the purchase price in the form of checks payable to the order of, or funds wired in favor of, “UMB Bank, N.A., as escrow agent for Resource Apartment REIT III, Inc.” Notwithstanding the foregoing, however, Pennsylvania Investors, Washington Investors and New York Investors shall continue to make checks payable to the order of “UMB Bank, N.A., as escrow agent for Resource Apartment REIT III, Inc.” until, respectively, the Pennsylvania Minimum Offering, the Washington Minimum Offering or the New York Minimum Offering is raised. Any checks made payable to a party other than the Escrow Agent shall be returned to the Dealer Manager or Soliciting Dealer that submitted the check. By 12:00 p.m. (EST) of the next business day following the receipt of instruments of payment from the Offering, the Company or the Dealer Manager, as applicable, shall furnish the Escrow Agent with a list of the Investors who have paid for the Securities showing the name, address, tax identification number, the amount of Securities subscribed for purchase, the amount paid and whether such Investors are Pennsylvania Investors, Washington Investors or New York Investors. The information comprising the identity of Investors shall be provided to the Escrow Agent in substantially the format set forth in the list of Investors attached hereto as Exhibit A (the “List of Investors”). The Escrow Agent shall be entitled to conclusively rely upon the List of Investors in determining whether Investors are Pennsylvania Investors, Washington Investors or New York Investors and shall have no duty to independently determine or verify the same. When a Soliciting Dealer’s internal supervisory procedures are conducted at the site at which the subscription agreement and the check for the purchase of Securities were initially received by Soliciting Dealer from the subscriber, such Soliciting Dealer shall transmit the subscription agreement and such check to the Escrow Agent by the end of the next business day following receipt of the check for the purchase of Securities and subscription agreement. When, pursuant to such Soliciting Dealer’s internal supervisory procedures, such Soliciting Dealer’s final internal supervisory procedures are conducted at a different location (the “Final Review Office”), such Soliciting Dealer shall transmit the check for the purchase of Securities and subscription agreement to the Final Review Office by the end of the next business day following Soliciting Dealer’s receipt of the subscription agreement and the check for the purchase of Securities. The Final Review Office will, by the end of the next business day following its receipt of the subscription agreement and the check for the purchase of Securities, forward both the subscription agreement and such check to the Escrow Agent. If any subscription agreement solicited by a Soliciting Dealer is rejected by the Dealer Manager or the Company, then the subscription agreement and check for the purchase of Securities will be returned to the rejected subscriber within ten (10) business days from the date of rejection. All Investor Funds deposited in the Escrow Account shall not be subject to any liens or charges by the Company or the Escrow Agent, or judgments or creditors’ claims against the Company, until and unless released to the Company as hereinafter provided. The Company understands and agrees that the Company shall not be entitled to any Investor Funds on deposit in the Escrow Account and no such funds shall become the property of the Company, or any other entity except as released to the Company pursuant to Sections 3, 4, 5 or 6 hereto. The Escrow Agent will not use the information provided to it by the Company for any purpose other than to fulfill its obligations as Escrow Agent hereunder. The Company and the Escrow Agent will treat all Investor information as confidential. The Escrow Agent shall not be required to accept any Investor Funds which are not accompanied by the information on the List of Investors.
Other Investors As part of the Offering, the Company proposes to enter into Securities Purchase Agreements in the same form as this Agreement with certain other investors (the “Other Investors”), and the Company expects to complete sales of Shares to them. The Investor and the Other Investors are sometimes collectively referred to herein as the “Investors,” and this Agreement, the Registration Rights Agreement and the Securities Purchase Agreements executed by the Other Investors are sometimes collectively referred to herein as the “Agreements.” The Company may accept executed Agreements from Investors for the purchase of Shares commencing upon the date on which the Company provides the Investors with the proposed purchase price per Share and concluding upon the date (the “Subscription Date”) on which the Company has notified Canaccord Xxxxx, Inc. (in its capacity as placement agent for the Shares, the “Placement Agent”) in writing that it will no longer accept Agreements for the purchase of Shares in the Offering, but in no event shall the Subscription Date be later than July 7, 2006. Each Investor must execute and deliver a Securities Purchase Agreement and a Registration Rights Agreement and must complete a Stock Certificate Questionnaire (in the form attached as Exhibit “A” hereto) and an Investor Questionnaire (in the form attached as Exhibit “B” hereto) in order to purchase Shares in the Offering.
Investor 2.1 The Investor, by following a Strategy of a Strategy Provider, hereby agrees to the following:
A. To authorize and instruct the Strategy Provider to act on his/her behalf in accordance with the specific Strategy in connection to the Investment Account;
B. To authorize and instruct the Company to take any necessary action to follow the Strategy of the Strategy Provider selected by the Investor;
C. Any Strategy selected to be followed by the Investor should be followed in the proportion of the funds of the Investor in the Investment Account;
D. To authorize and instruct the Company to transfer the Strategy Provider’s commission from the Investment Account to the account allocated by the Strategy Provider for this purpose at the end of each Social Trading Period.
2.2 Details and/or information in relation to the Investor‘s trading activities while using the Social Trading service shall be available on the Social Trading website and/or Social Trading mobile application.
2.3 The Investor may start copying a Strategy, deposit and transfer funds and/or withdraw any available funds to and from his/her Investment Account in accordance with the procedures and restrictions available from time to time on the Social Trading mobile applications and/or Website and/or any other website maintained by the Company for Social Trading and subject to the Agreement.
2.4 The Investor can transfer the funds allocated for following a specific Strategy from his/her Investment Account after he/she stops following a Strategy.
2.5 The Investor may stop following Strategy at any time during the time the market is open and the relevant Open Position(s) shall be closed at market price.
2.6 The Company reserves the right at its absolute discretion to close any or all Open Position(s) of a Strategy Provider at any time and the Investor’s Account shall be adjusted accordingly.
2.7 The Social Trading system may close any or all Open Position(s) of an Investor at any time.
2.8 The Investor may deposit via the payment systems/methods available by the Company for the Social Trading service from time to time.
2.9 The Investor acknowledges and accepts that by following a Strategy of a specific Strategy Provider he/she accepts the commission and Leverage set by the respective Strategy Provider.
2.10 The Investor acknowledges and understands that he/she should always maintain the required Balance reflected in his/her Investment Account in order to follow the specific Strategy selected.
2.11 The Investor acknowledges and agrees that once he/she selects to start following and copying a specific Strategy, all the existing Open Positions under that particular Strategy will automatically be followed and copied by the Investor together with any further new trading orders performed by the Strategy Provider under the specific Strategy.
2.12 The Investor acknowledges and accepts that variations in the pricing may occur from the moment that the Investor selects to copy a specific Strategy to the actual moment that the Investor starts copying such a Strategy.
2.13 In addition to clause 11.1 of Part A of the current Agreement, each of the following constitutes an “Event of Default” for the Investor:
A. Which can be characterized as excessive, without legitimate intent, to profit from market movements;
B. While relying on price latency or arbitrage opportunities;
C. Which can be considered as market abuse;
D. During abnormal market/trading conditions.
2.14 If an Event of Default occurs the Company may, at its absolute discretion, at any time and without prior Written Notice, take one or more of the following actions in addition to Clause 11.2 of Part A:
Convertible Notes The Convertible Notes are subject to different conversion calculations depending on the event triggering conversion as described in the Notes (e.g., an IPO or other liquidity event). For illustration purposes, assuming the optional conversion right is exercised today, based on the current capitalization and the $50,000,000 assumed valuation specified for an optional conversion in the Notes, there would be 4,705,224 additional shares issued; provided however, that each holder of Notes is subject to a maximum 9.99% ownership of the shares of capital stock of the Company at any one time. This illustration calculation does not account for the 6% interest component.
Defaulting Initial Purchasers If, on the Closing Date, any Initial Purchaser defaults in the performance of its obligations under this Agreement, the non-defaulting Initial Purchasers shall be obligated to purchase the Notes that such defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase on the Closing Date (the “Remaining Notes”) in the respective proportions that the principal amount of the Notes set opposite the name of each non-defaulting Initial Purchaser in Schedule I hereto bears to the total number of the Notes set opposite the names of all the non-defaulting Initial Purchasers in Schedule I hereto; provided, however, that the non-defaulting Initial Purchasers shall not be obligated to purchase any of the Notes on the Closing Date if the total amount of Notes which the defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase on such date exceeds 10% of the total amount of Notes to be purchased on the Closing Date, and no non-defaulting Initial Purchaser shall be obligated to purchase more than 110% of the amount of Notes that it agreed to purchase on the Closing Date pursuant to this Agreement. If the foregoing maximums are exceeded, the non-defaulting Initial Purchasers, or those other purchasers satisfactory to the Initial Purchasers and the Company who so agree, shall have the right, but not the obligation, to purchase, in such proportion as may be agreed upon among them, all the Remaining Notes. If the non-defaulting Initial Purchasers or other Initial Purchasers satisfactory to the Initial Purchasers do not elect to purchase the Remaining Notes, this Agreement shall terminate without liability on the part of any non-defaulting Initial Purchaser or the Company, except that the Company will continue to be liable for the payment of expenses to the extent set forth herein. Nothing contained in this Agreement shall relieve a defaulting Initial Purchaser of any liability it may have to the Company for damages caused by its default. If other purchasers are obligated or agree to purchase the Notes of a defaulting or withdrawing Initial Purchaser, the Company or the Representative may postpone the Closing Date for up to five full business days in order to effect any changes in the Transaction Documents or in any other document or arrangement that, in the opinion of counsel for the Company or Counsel for the Initial Purchasers, may be necessary.
Additional Investors Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of the Company’s Preferred Stock after the date hereof, any purchaser of such shares of Preferred Stock may become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement, and thereafter shall be deemed an “Investor” for all purposes hereunder. No action or consent by the Investors shall be required for such joinder to this Agreement by such additional Investor, so long as such additional Investor has agreed in writing to be bound by all of the obligations as an “Investor” hereunder.
Additional Stockholders In connection with the issuance of any additional equity securities of the Company to any Person, the Company may permit such Person to become a party to this Agreement and succeed to all of the rights and obligations of a "Stockholder" under this Agreement by obtaining the consent of the holders of a majority of the Common Stockholder Shares and an executed counterpart signature page to this Agreement, and, upon such execution, such Person shall for all purposes be a "Stockholder" party to this Agreement.
Bridge Financing The Company shall use its reasonable best efforts to take, or cause to be taken, all actions and do or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to obtain no later than October 30, 2004 a commitment letter (the “Bridge Financing Commitment Letter”) expiring no earlier than January 30, 2005, from a reputable financial institution in substantially the same form and substance as Exhibit F attached hereto, to provide financing on terms and conditions no less favorable than those described on Exhibit F attached hereto.
Exculpation Among Investors Each Investor acknowledges that it is not relying upon any person, firm or corporation, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Each Investor agrees that no Investor nor the respective controlling persons, officers, directors, partners, agents, or employees of any Investor shall be liable to any other Investor for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Securities.
Defaulting Initial Purchaser (a) If, on the Closing Date, any Initial Purchaser defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Initial Purchasers may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Initial Purchasers to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Initial Purchaser, either the non-defaulting Initial Purchasers or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Initial Purchasers may be necessary in the Time of Sale Information, the Offering Memorandum or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Time of Sale Information or the Offering Memorandum that effects any such changes. As used in this Agreement, the term “Initial Purchaser” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 9, purchases Securities that a defaulting Initial Purchaser agreed but failed to purchase.
