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 potential offer and purchase of the Shares by
Prospective Investors (as hereafter defined) who are 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 filed by the Company with 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 August 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 in which the Company will be
requested to offer or sell the Shares to the RIA's 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 any compensation, including any commission or referral fee to 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) That the RIA acknowledges that Prospective Investors may only purchase
the Shares pursuant to the subscription agreement in the form attached to the
Prospectus (the "Subscription Agreement") and in accordance with the terms of
the Prospectus. 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, while 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 be transmitted to National Financial
Services, LLC by no later than 12:00 p.m. (noon) on the next business day
following receipt
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thereof. No Subscription Agreement shall be effective unless and until accepted
by the Company in its sole discretion.
(f) That the RIA acknowledges that no telephonic subscriptions will be
allowed.
(g) That no Subscription Agreement will be honored unless the Prospective
Investor has executed our Subscription Agreement and either already has open or
must first open and fund an account with National Financial Services, LLC, an
affiliate of Fidelity Brokerage Services, LLC, with funds sufficient to pay the
full subscription price for the Shares subscribed for. The RIA acknowledges that
we will be relying on the information provided by each Prospective Investor,
including information regarding that Prospective Investor's net worth and other
pertinent information. The RIA acknowledges that any subscription may be
rejected by us in whole or in part, regardless of whether the subscriber meets
the minimum suitability standards. In addition to the Subscription Agreement and
Fidelity's standard customer account documents, the RIA acknowledges that each
Prospective Investor will also need to execute Fidelity's Alternative Investment
Addendum and Custody Agreement as well as pay $250.00 to cover a one time
alternative investment set up charge. The RIA acknowledges that if the shares
will be held in an XXX, then the Prospective Investor will also be required to
execute Fidelity's Request for Alternative Investment Subscription Agreement.
The Company will accept or reject each subscription by no later than August 31,
2005 unless we achieve the minimum offering prior to that date.
(h) Not to execute any sale 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.
(i) To retain in the RIA's records and make available to the Company for a
period of at least six (6) 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.
(j) 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.
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(k) That the RIA acknowledges that neither the RIA nor any other person is
authorized to give any information or make any representation other than those
contained in the Prospectus or in any supplemental sales literature furnished by
the Company for use in advising Prospective Investors regarding the advisability
of purchasing the Shares.
(l) That the RIA will reasonably assist its Prospective Investors and the
Company in correctly filling out all investment documents, including the
Subscription Agreement and Fidelity's standard customer account documents, all
of which the RIA acknowledges, must be completed in full in order for the
Subscription Agreement to be processed. At a minimum, this duty of the RIA shall
include providing Prospective Investor information in an electronic format
acceptable to the Company, National Financial Services, LLC and American Stock
Transfer & Trust Company, Inc. The RIA acknowledges and agrees that no Shares
will be sold to any Prospective Investor unless and until the RIA has executed
Section 5 of the Subscription Agreement. Each subscription will be accepted or
rejected by the Company by no later than August 31, 2005, and thereafter
assuming the Minimum offering has been raised, within 30 days after its receipt,
and no sale of shares will be completed until at least five business days after
the date on which the subscriber receives a copy of the Prospectus. The RIA
acknowledges that all Subscribers are encouraged to read the Prospectus in its
entirety.
(m) 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; and
(d) The investment is otherwise suitable for the Prospective
Investor, and
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(ii) Maintain in its files for not less than six (6) years following
the Offering Termination Date, information describing the basis upon which the
determination of suitability was reached as to each Prospective Investor.
(n) That, prior to recommending a subscription for the Shares, the RIA
will inform the Prospective Investor of all pertinent facts relating to the
illiquidity and lack of marketability of the Shares, as appropriate, during the
term of the investment.
(o) To hereby undertake and agree to comply with all obligations
applicable to the RIA under all applicable laws, rules and regulations,
including those set forth by the NASD.
3. 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
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.
4. The Company will provide the RIA with such number of copies of the
Prospectus, and such number of copies of amendments and supplements thereto as
the RIA may reasonably request. The Company may provide the RIA with certain
supplemental sales material to be used by the RIA in connection with the
solicitation of purchasers of the Shares. Only approved sales material may be
used. As of the date of this Agreement, the Company anticipates that the
following sales material will be authorized for use in connection with this
Offering: (i) a brochure titled "ADVISORS REIT I, Inc. a Pillar of Strength in
your Investment Portfolio"; (ii) a cover letter transmitting the prospectus; and
(iii) a PowerPoint(R) presentation describing real estate investment in general,
and the Company, specifically. In the event the RIA elects to use such
supplemental sales material, the RIA agree that such material shall not be used
only if accompanied or preceded by the Prospectus, as it may be amended or
supplemented in the future.
5. This Agreement may be terminated by the Company at any time upon written
notice to the RIA.
6. In counseling Prospective Investors regarding the possible acquisition of
the Shares, the RIA agrees to comply with any applicable requirements of 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 and, in particular, the RIA agrees that the
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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.
7. 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.
8. The Company shall not be under any liability for, or in respect of the
value or validity of the Subscription Agreements, the Shares, or the performance
by any one of any agreement on its part, or for, or in respect of any matter
connected with, this Agreement, except for lack of good faith by the Company,
and for obligations expressly assumed by the Company herein.
9. The RIA agrees to indemnify the Company, its officers, directors,
employees, independent contractors and agents to the extent the Company, 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, by reason of the breach of any term, condition,
representation, warranty or agreement by the RIA or any of its officers,
directors, agents or employees.
10. 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
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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.
11. All representations, warranties, covenants and agreements of the RIA
contained herein shall survive the delivery, execution and closing of the
Offering.
12. 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.
13. 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: _____________________________
14. The undersigned confirm by their signatures that they (i) have not and will
not charge any Commission as such term is defined herein by virtue of any
Prospective Investor's purchase of the Shares; (ii) shall only recommend the
purchase of Shares to Prospective Investors that the RIA has reasonable grounds
to believe are in compliance in the terms and requirements of this Agreement and
the Prospectus (iii) if and as requested, agree to discuss the Prospective
Investor's prospective purchase of Shares with the Prospective Investor; (iv)
will advise the Prospective Investor of all pertinent facts with regard to the
lack of liquidity and marketability of the Shares; (v) will deliver, or cause to
be delivered, a current Prospectus and related supplements, if any, to each
Prospective Investor; and (vi) have reasonable grounds to believe that the
purchase of Shares is a suitable investment for each Prospective Investor, that
each Prospective Investor meets the suitability standards applicable to that
Prospective Investor set forth in the Prospectus and related supplements, if
any, and to ensure that the Prospective Investor is in a financial position to
enable the Prospective Investor to realize the benefits of the proposed
investment and to suffer any loss that may also occur from their investment.
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15. Except as otherwise provided herein, all expenses incurred by the RIA in
the performance of its obligations hereunder, including, but not limited to,
expenses related to the Offering and 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
Re: ADVISORS REIT I, Inc.
Offering of Shares of Common Stock
Gentlemen:
The undersigned agrees to the terms and conditions of this Agreement. The
undersigned confirms that it is duly licensed as a Registered Investment Advisor
and that it is qualified under federal law and the laws of the states in which
referrals are to be made by the undersigned.
Dated:________________, 2005
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(Print Name of Firm)
By:
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(Authorized Representative)
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