Exhibit 10.4
FORM OF PROSPECTIVE INVESTOR REFERRAL AGREEMENT
ADVISORS REIT I, INC.
a Maryland corporation,
Xxxxx 000, 0000 X. 00xx Xxxxx
Xxxxxxx, Xxxxxx 00000
__________________, 2005
Ladies and Gentlemen:
This Prospective Investor Referral Agreement (the "Agreement") is by and
between _______________________________ (the "RIA"), and Advisors REIT I, Inc.,
a Maryland corporation (the "Company"). The Company is directly offering for
sale up to 2,500,000 shares of common stock of the Company (the "Shares") and
has entered into this Agreement to define the relationship between the Company
and the RIA with regards to the Company's potential offer and sale of the Shares
to Prospective Investors (as hereafter defined) who are also currently clients
of the RIA.
The terms of the offering (the "Offering") are set forth in the Company's
Prospectus dated ____________, 2005 (with all exhibits, appendices, addenda and
supplements thereto, collectively referred to as the "Prospectus") included in
that certain Form S-11 Registration Statement as amended and filed by the
Company with, and declared effective by, the Securities and Exchange Commission
(the "Registration Statement").
The Offering may be made available to the RIA's clients (the "Prospective
Investors") subject to the Prospective Investor's satisfaction of all of the
terms and conditions of the Offering and provided also that (i) the RIA does not
charge any Prospective Investors a commission or receive any other form of
compensation solely because their Prospective Investors purchase the Shares
("Commission"), it being understood that such prohibition shall not apply to any
investment advisory fee that the RIA would be lawfully entitled to receive in
the ordinary course of providing investment advisory or management services for
the Prospective Investors; (ii) the Prospective Investor satisfies the
"Suitability Standards" set forth in the Prospectus; (iii) the Company may
lawfully offer the Shares in the state where the Prospective Investor resides;
and (iv) the Offering has not been fully subscribed or otherwise terminated.
It is understood that a minimum investment of 1,000 shares ($10,000) is
required and that additional shares may be purchased in 25 share increments. It
is also acknowledged that the Shares are being offered to the public on a "best
efforts" basis (which means that no one is guarantying that any minimum amount
will be sold) exclusively by the Company, and not through any underwriter or
participating broker-dealers.
No shares will be sold until subscriptions totaling at least 1,000,000
shares ($10 million) have been obtained no later than December 31, 2005 (the
"Offering Termination Date") unless extended by the Company. If the minimum is
sold, the Company may, in its sole discretion, and without prior notice to the
RIA or its Prospective Investors, elect to extend the Offering to a date no
later than March 31, 2006 in states that permit extension. If the minimum amount
has not been received and accepted by December 31, 2005, no Shares will be sold
and the Offering will be terminated in accordance with the term of the
Prospectus.
1. The RIA hereby agrees, represents and/or warrants:
(a) That the RIA (i) is qualified and duly registered to act as a
registered investment advisor within all states where the Company may offer or
sell the Shares to the RIA's clients who are also Prospective Investors, and
(ii) will maintain all such registrations and qualifications in good standing
for the duration of the Offering.
(b) That the RIA shall not directly or indirectly charge or seek any
commission or other compensation to/from any Prospective Investor or his/her
account by reason of the Prospective Investor's purchase of the Shares nor will
the RIA pay or accept any compensation, including any commission or referral fee
to or by anyone by virtue of such investment by any Prospective Investor.
(c) That the RIA acknowledges that the Shares are available only to
persons who are account holders with National Financial Services, LLC or
Fidelity Brokerage Services, LLC.
(d) That with regard to the Offering, the RIA will act only as an
investment advisor to Prospective Investors, and not as an agent or employee of
the Company (or its affiliates).
(e) The RIA hereby agrees to diligently make inquiries as required by
this Agreement, as set forth in the Prospectus, and as required by all
applicable laws regarding all Prospective Investors in order to ascertain
whether a purchase of the Shares is suitable for each such Prospective Investor.
Further, because the Offering does not contemplate any funds being received by
the RIA, if in fact any funds are received by the RIA with respect to any
Subscription Agreement, such funds shall either be immediately returned to the
Prospective Investor or (ii) at the express instruction of the Prospective
Investor will be transmitted to National Financial Services, LLC by no later
than 12:00 p.m. (noon) on the next
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business day following receipt thereof. No Subscription Agreement shall be
effective unless and until accepted by the Company in its sole discretion.
(f) Not to instruct Fidelity or any other broker/dealer to execute any
purchase of the Shares in an account over which the RIA has discretionary
authority to make investments without obtaining prior written approval of the
transaction by the owner of the account as evidenced by the Prospective
Investor's execution of the Subscription Agreement.
(g) To retain in the RIA's records and make available to the Company for
a period of at least five (5) years following the Offering's termination date,
information establishing that each Prospective Investor who purchases the Shares
pursuant to a Subscription Agreement is within the permitted class of
Prospective Investors under the requirements of the jurisdiction in which such
purchaser is a resident and the suitability standards set forth in the
Prospectus and the Subscription Agreement.
(h) That all persons who are referred to the Company by the RIA will be
strictly subject to confirmation and acceptance thereof by the Company exercised
in its sole discretion. The Company reserves the right in its sole and absolute
discretion to reject any such subscription and to accept or reject subscriptions
in the order of their receipt by the Company or otherwise.
(i) That in recommending to a Prospective Investor the purchase of
the Shares, the RIA will:
(i) Have reasonable grounds to believe, on the basis of
information obtained from the Prospective Investor concerning his/her investment
objectives, other investments, financial situation and needs, and any other
information known by the RIA, that:
(a) The Prospective Investor meets the investor
suitability standards set forth in the Prospectus;
(b) The Prospective Investor is or will be in a
financial position appropriate to enable him to realize to a significant extent
the benefits described in the Prospectus;
(c) The Prospective Investor has a fair market net
worth sufficient to sustain the risks inherent in the investment, including loss
of investment and lack of liquidity;
(d) The investment is otherwise appropriate for the
Prospective Investor in light of his or her investment objectives and
circumstances, and
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(ii) Maintain in its files for not less than five (5) years
following the Offering Termination Date, information describing the basis upon
which such determination was reached as to each Prospective Investor.; and
(iii) It is understood that the scope of the RIA's inquiry may be
limited to those practices and procedures customarily applied by the RIA in the
ordinary course of its business and relying upon the accuracy and veracity of
the representations made by a Prospective Investor in their Subscription
Agreement.
(j) Except as expressly provided herein, the RIA shall limit it
activities hereunder to:
(a) Providing the requisite mailing information to the Company so
that the Prospectus may be delivered to RIA's clientele; and
(b) At the RIA's prerogative and discretion, following up with
their clientele and assisting them in completing the Subscription Agreement
and/or providing any other paperwork to Fidelity in order for their client to
establish a customer account.
(k) In the event that moneys are mistakenly delivered to the RIA by any
client, the RIA shall immediately return the funds to their client or, at the
client's insistence, promptly turn such funds over to Fidelity within such
deadlines and by means of remittance as may be required under applicable laws.
(l) To hereby undertake and agree to comply with all obligations
applicable to the RIA under all applicable laws, rules and regulations.
2. That the Company shall have full authority to take such action as it may
deem advisable with respect to all matters pertaining to the Offering. The
Company shall be under no liability to the RIA except for lack of good faith and
for obligations expressly assumed by it in this Agreement. Nothing contained in
this Section is intended to operate as, and the provisions of this Section shall
not constitute, a waiver by the RIA of compliance with any provision of the
Investment Advisers Act of 1940 (the "Investment Advisers Act), the Securities
Act of 1933, as amended (the "Securities Act"), the Exchange Act, other
applicable federal securities laws, applicable state securities laws, the rules
and regulations promulgated thereunder and the rules of the NASD.
3. This Agreement may be terminated by the Company at any time upon written
notice to the RIA.
4. In counseling Prospective Investors regarding the possible acquisition of
the Shares, the RIA agrees to comply with any applicable requirements of the
Investment Advisers Act, the Securities Act, the Exchange Act, other applicable
federal securities laws, applicable state securities laws, the rules and
regulations
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promulgated thereunder and the rules of the NASD and, in particular, the RIA
agrees that the RIA will not give any information or make any representations
other than those contained in the Prospectus and in any supplemental sales
literature furnished to the RIA by the Company.
5. It is understood and agreed that under no circumstances will the RIA
engage in any activities hereunder in any state other than those for which the
RIA is duly licensed and for which permission has been granted by the Company to
the RIA, as evidenced by written acknowledgment by the Company that such state
has been cleared for offer and sale activity by the Company.
6. The Company shall indemnify the RIA, its officers, directors, employees,
independent contractors and agents to the extent and the RIA, its officers,
directors, employees, independent contractors and/or agents, or any of them,
incur any loss, costs, expense, liability, fine or other economic damage, joint
or several, to which they may become subject under the Securities Act or any
other statute or at common law and to reimburse the persons indemnified as above
for any legal and other expenses (including the cost of any investigation and
preparation) incurred by them in connection with any litigation, whether or not
resulting in any liability, but only in so far as such losses, claims, damages,
liabilities and litigation arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereto or any application or other document filed in
order to qualify the Shares under the Blue Sky or securities laws of the states
where filings were made, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, all as of the date when the Registration Statement or
such amendment, as the case may be, becomes effective, or any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus (as
amended or supplemented if the Company shall have filed with the Commission any
amendments thereof or supplements thereto), or the omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the indemnity agreement contained in this
paragraph shall not apply to the RIA or any person controlling RIA in respect of
any such losses, claims, damages, liabilities or actions arising out of or based
upon any such omission or alleged omission, if such statement or omission was
made in reliance upon information peculiarly within the knowledge of the RIA and
furnished in writing to the Company by the RIA specifically for use in
connection with the preparation of the Registration Statement and Prospectus or
any such amendment or supplement thereto.
7. All representations, warranties, covenants and agreements of the RIA
contained herein shall survive the closing of the Offering.
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8. This Agreement will be governed by, subject to and construed in accordance
with the laws of the State of Kansas. This Agreement constitutes the entire
understanding between the parties hereto and supersedes any prior understandings
or written or oral agreements between them respecting the subject matter hereof.
9. Any notice from the Company to the RIA shall be deemed to have been fully
given if mailed or sent to the RIA by facsimile at the address set forth below:
Address: _____________________________
_____________________________
_____________________________
Phone: _____________________________
Facsimile: _____________________________
10. Except as otherwise provided herein, all expenses incurred by the RIA in
the performance of its obligations hereunder, including, but not limited to, any
attorneys' fees, shall be at the RIA's sole cost and expense, and the foregoing
shall apply notwithstanding the fact that the Offering is not consummated for
any reason.
Please accept and agree to this Prospective Investor Referral Agreement on
the foregoing terms and conditions by signing below and returning a copy of this
Agreement to us.
Very truly yours,
ADVISORS REIT I, Inc.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
ADVISORS REIT I, Inc.
Xxxxx 000, 0000 X. 00xx Xxxxx
Xxxxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
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Re: ADVISORS REIT I, Inc.
Offering of Shares of Common Stock
Gentlemen:
The undersigned agrees to be bound by and subject to, all of the terms and
conditions of this Agreement. The undersigned confirms that it is duly licensed
as a Registered Investment Advisor and that it is so qualified under federal law
and the laws of the states where the undersigned will be providing investment
advice and where any recommendations may be made by the undersigned to its
clientele regarding the Offering.
Dated: ________________, 2005
_________________________________________
(Print Name of Firm)
By:
-------------------------------------
(Authorized Representative)
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