STREETSHARES NOTE INVESTOR MEMBER AGREEMENT
In consideration of the covenants, agreements, representations, and warranties hereinafter set forth, and for other good and valuable consideration, receipt of which is hereby acknowledged, it is agreed as follows:
1. Purchase of StreetShares Notes. Subject to the terms and conditions of this Agreement, we will provide you, following successful application for membership, with the opportunity to purchase Notes with minimum denominations of $25 through the Site: At the time you commit to purchase a Note, you must have sufficient funds in your account with StreetShares to complete the purchase, and you will not have access to those funds after you make a purchase commitment.
At the time you commit to purchase a Note, you must have sufficient funds in your account with StreetShares to complete the purchase, and you will not have access to those funds after you make a purchase commitment.
2. Issuance. Each time you purchase a Note, it will be issued immediately. Upon our receipt of your payment of the purchase price, your Note will begin bearing interest on the average daily balance at the interest rate stated on the Note.
3. Terms of the Notes. EACH NOTE SHALL HAVE THE TERMS AND CONDITIONS DESCRIBED IN THE NOTE ISSUED BY STREETSHARES, INC., WHICH IS AVAILABLE FOR YOU TO REVIEW ON THE SITE.
The Notes shall be issued by and fully recourse to StreetShares, Inc. Notwithstanding any opportunity made available to StreetShares Investor Members to view information relating to StreetShares’ small business customers (“StreetShares Customers” or “StreetShares Borrowers”) and loan requests made by those StreetShares Borrowers, you understand that you are NOT investing in, nor taking on direct financial risk of, any particular StreetShares Borrower(s). The payments made by StreetShares, Inc. on your Notes will be made to you regardless of whether any particular StreetShares Borrower(s) makes timely or consistent loan payments.
Generally, no sale of Notes may be made to you if the aggregate purchase price you pay is more than 10% of the greater of your annual income or net worth. Different rules apply to accredited investors and non-natural persons. Before making any representation that your investment does not exceed applicable thresholds, you should review the specific requirements contained in Rule 251(d)(2)(i)(C) of Regulation A promulgated under the Securities Act of 1933.
4. Investor Acknowledgements.
YOU UNDERSTAND AND ACKNOWLEDGE THE FOLLOWING:
(a) The Notes have not been registered under the United States Securities Act of 1933, or under the securities act of any other jurisdiction, nor is any such registration contemplated. The Notes will be offered and sold under the exemption provided by section 3(b)(2) of the Securities Act of 1933 and Regulation A promulgated thereunder pursuant to a Form 1-A (the “Offering Circular”) filed with the U.S. Securities and Exchange Commission (“SEC”), available on the SEC’s EDGAR filing database at https://www.sec.gov, and other exemptions of similar import in the laws of the states and other jurisdictions where the offering will be made. Neither the SEC nor any state securities commission has passed upon the merits of or given its approval of any securities offered or the terms of the offering nor passed upon the accuracy or completeness of any offering circular or other selling literature. Any representation to the contrary is a criminal offense. The Notes are being offered pursuant to an exemption from registration with the SEC; however, the SEC has not made an independent determination that the securities offered thereunder are exempt from registration.
(b) INVESTMENT IN THE NOTES IS HIGHLY RISKY AND YOU MAY LOSE ALL OF YOUR INVESTMENT. THESE ARE SPECULATIVE SECURITIES. YOU SHOULD PURCHASE THESE SECURITIES ONLY IF YOU CAN AFFORD A COMPLETE LOSS OF YOUR INVESTMENT. BEFORE PURCHASING A NOTE, YOU SHOULD REVIEW THE RISK DISCLOSURES AND OTHER TERMS OF THE SECURITIES OFFERING AVAILABLE IN THE STREETSHARES FORM 1-A OFFERING STATEMENT ON THE SEC’S EDGAR FILINGS DATABASE AT HTTP://WWW.SEC.GOV.
(c) THE NOTES DO NOT REPRESENT AN OWNERSHIP INTEREST IN THE CORRESPONDING MEMBER LOANS, THEIR PROCEEDS, OR THEIR ASSETS. YOU UNDERSTAND THAT THE NOTES ARE OBLIGATIONS OF STREETSHARES ONLY AND NOT THE BORROWER MEMBERS.
(d) YOU HAVE NO RIGHT, AND SHALL NOT, MAKE ANY ATTEMPT, DIRECTLY OR THROUGH ANY THIRD-PARTY, TO COLLECT FROM BORROWERS. ALL AGREEMENTS AND OBLIGATIONS RELATING TO YOUR NOTES ARE BETWEEN YOU AND STREETSHARES AND NOT WITH STREETSHARES' THIRD-PARTY CUSTOMERS. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS BOTH WITHIN THE SITE AND OUTSIDE OF THIS SITE. IT IS PROHIBITED FOR USERS TO CONTACT EACH OTHER OUTSIDE OF THE SITE FOR PURPOSE RELATED TO ACTIVITIES ON THE SITE. CONSISTENT WITH THIS PROHIBITION, STREETSHARES EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR INTERACTIONS BETWEEN STREETSHARES MEMBERS OUTSIDE OF THE SITE.
(e) YOU UNDERSTAND THAT STREETSHARES HAS A LIMITED OPERATING HISTORY, AND, AS AN ONLINE COMPANY IN THE EARLY STAGES OF DEVELOPMENT, WE FACE INCREASED RISKS, UNCERTAINTIES, EXPENSES, AND DIFFICULTIES, WHICH COULD IMPACT YOUR INVESTMENT.
(f) PLEASE SEE THE STREETSHARES FORM 1-A OFFERING STATEMENT (AVAILABLE AT: https://www.sec.gov/Archives/edgar/data/1607838/000157104916011678/t1600386-1aa.htm) FOR A COMPLETE LIST OF RISK DISCLOSURES OF YOUR INVESTMENT.
(g) THE NOTES WILL NOT BE LISTED ON ANY SECURITIES EXCHANGE, NOR DO WE HAVE PLANS TO ESTABLISH ANY KIND OF TRADING PLATFORM TO ASSIST INVESTORS WHO WISH TO SELL THEIR NOTES. THERE IS NO PUBLIC MARKET FOR THE NOTES, AND NONE IS EXPECTED TO DEVELOP. NOTES MAY BE SUBJECT TO TRANSFER RESTRICTIONS. NO LIQUID MARKET FOR THE NOTES IS EXPECTED TO DEVELOP.
(h) THE NOTES WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF VIRGINIA.
(i) STREETSHARES CHARGES INVESTORS A SERVICING FEE ON ALL PAYMENTS MADE TO INVESTORS. CURRENTLY, THE SERVICING FEE EQUAL TO 1.0% OF EACH PAYMENT AMOUNT. THE SERVICING FEE IS SUBJECT TO CHANGE. STREETSHARES MAY WAIVE THIS FEE AT ITS SOLE DISCRETION.
(j) WE WILL ISSUE THE NOTES ONLY IN ELECTRONIC FORM. INVESTORS WILL BE REQUIRED TO HOLD THEIR NOTES THROUGH STREETSHARES' ELECTRONIC NOTE REGISTER.
(k) YOU WILL NOT RECEIVE ANY PAYMENTS WE MAY RECEIVE AFTER THE MATURITY DATE OF YOUR NOTE. EACH NOTE WILL MATURE ON THE MATURITY DATE, UNLESS STREETSHARES EXERCISES ITS OPTION TO CALL THE NOTE PRIOR TO ITS MATURITY DATE.
(l) STREETSHARES HAS INCURRED NET LOSSES IN THE PAST AND EXPECTS TO INCUR NET LOSSES IN THE FUTURE.
(m) IF THE SECURITY OF OUR INVESTORS' CONFIDENTIAL INFORMATION STORAGE SYSTEMS IS BREACHED OR OTHERWISE SUBJECTED TO UNAUTHORIZED ACCESS, YOUR SECURE INFORMATION MAY BE STOLEN.
(n) THE NOTES WILL NOT RESTRICT OUR ABILITY TO INCUR ADDITIONAL INDEBTEDNESS.
You and StreetShares agree that the Notes are intended to be indebtedness of StreetShares for U.S. federal income tax purposes. You agree that you will not take any position inconsistent with such treatment of the Notes for tax, accounting, or other purposes, unless required by law. You further acknowledge that the Notes will be subject to the original issue discount rules of the Internal Revenue Code of 1986, as amended. You acknowledge that you are prepared to bear the risk of loss of your entire purchase price for any Notes you purchase.
5. Your Representations, Warranties, and Covenants.
(a) You represent and warrant (i) you will not invest more than 10% of your annual income or net worth (whichever is greater) as those terms are defined in Rule 251(d)(2)(i)(C) of Regulation A, (ii) that you satisfy any additional minimum financial suitability standards applicable to the state in which you reside, and (iii) that you covenant that you will abide by the maximum investment limits, as set forth below or as may be set forth on the Site. You agree to provide any additional documentation reasonably requested by us, as may be required by the securities administrators or regulators of the federal government or of any state, to confirm that you meet such minimum financial suitability standards and have satisfied any maximum investment limits. You understand that the Notes will not be listed on any securities exchange, that there may be no, or only a limited, trading platform for the Notes, that any trading of Notes must be conducted in accordance with federal and applicable state securities laws, and that Note purchasers should be prepared to hold the Notes they purchase until the Notes mature;
(b) You further represent and warrant to StreetShares, as of the date of this Agreement and as of any date that you commit to purchase Notes, that: (i) you have the power to enter into and perform your obligations under this Agreement; (ii) this Agreement has been duly authorized, executed, and delivered by you; (iii) in connection with this Agreement, you have complied in all respects with applicable federal, state, and local laws; and (iv) that you will not and have not made any oral or written statement to Business Borrowers or their representatives that would discourage on a prohibited basis a reasonable person from making or pursuing a Loan Request on the Site, both in compliance with the Equal Credit Opportunity Act, 15 U.S.C. 1601 et seq., and its implementing Regulation B, 12 C.F.R. 202 et seq., and any other applicable federal, state, or local laws, regulations, rules, or ordinances concerning credit discrimination;
(c) You also represent and warrant that all funds in your account withdrawn prior to the maturity date may be subject to a processing fee. StreetShares reserves the right to waive the processing fee at its discretion from time to time for any reason, e.g. anniversary of the investment, promotional periods for investing with StreetShares, etc.;
(d) You represent and warrant that your investment into Veteran Business Bonds is for bona fide investment purposes and shall not be used for any illegal activity, fraud, or other purposes that would violate the general laws of the United States of America and/or any state or local laws;
(e) You represent and warrant that your exact legal name, physical address, date of birth, and taxpayer identification number are accurately set forth in your account.
6. StreetShares, Inc. Representations and Warranties. StreetShares, Inc. represents and warrants to you, as of the date of this Agreement and as of any date that you commit to purchase Notes, that:
(a) it is duly organized and validly existing as a corporation in good standing under the laws of Delaware and have corporate power to enter into and perform its obligations under this Agreement;
(b) this Agreement has been duly authorized, executed, and delivered;
(c) the Notes have been duly authorized and, following payment of the purchase price by you and electronic execution, authentication, and delivery to you, will constitute valid and binding obligations of StreetShares, Inc., enforceable in accordance with their terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, or other laws;
(d) StreetShares represents and warrants that it may at its sole discretion close any investor account for suspected illegal activity or non-compliance with any federal, state, or local laws;
(e) StreetShares, Inc. has complied in all material respects with applicable federal, state, and local laws in connection with the offer and sale of the Notes; and
(f) it has made commercially reasonable efforts to verify the identity of the Borrowers obligated on the Member Loans that correspond to the Notes.
7. No Advisory Relationship. You acknowledge and agree that the purchase and sale of the Notes pursuant to this Agreement is an arms-length transaction between you and StreetShares. In connection with the purchase and sale of the Notes, StreetShares is not acting as your agent or fiduciary. StreetShares assumes no advisory or fiduciary responsibility in your favor in connection with the purchase and sale of the Notes. StreetShares has not provided you with any legal, accounting, regulatory, or tax advice with respect to the Notes. You have consulted your own legal, accounting, regulatory, and tax advisors to the extent you have deemed appropriate.
8. Limitations on Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE OTHER REGARDING THE EFFECT THAT THIS AGREEMENT MAY HAVE UPON THE FOREIGN, FEDERAL, STATE, OR LOCAL TAX LIABILITY OF THE OTHER.
9. Further Assurances. The parties agree to execute and deliver such further documents and information as may be reasonably required in order to effectuate the purposes of this Agreement.
10. Consent to Electronic Transactions and Disclosures. Because StreetShares operates only on the Internet, it is necessary for you to consent to transact business with us online and electronically. As part of doing business with us, therefore, we also need you to consent to our giving you certain disclosures electronically, either via the Site or to the email address you provide to us. By entering into this Agreement, you consent to receive electronically all documents, communications, notices, contracts, and agreements arising from or relating in any way to your or our rights, obligations, or services under this Agreement (each, a "Disclosure"). The decision to do business with us electronically is yours.
This document informs you of your rights concerning Disclosures.
Electronic Communications. Any Disclosures will be provided to you electronically through StreetShares.com either on our web site or via electronic mail to the verified email address you provided. If you require paper copies of such Disclosures, you may write to us at the mailing address provided below and a paper copy will be sent to you.
Scope of Consent. Your consent to receive Disclosures and transact business electronically, and our agreement to do so, applies to any transactions to which such Disclosures relate.
Consenting to Do Business Electronically. Before you decide to do business electronically with us, you should consider whether you have the required hardware and software capabilities described below.
Hardware and Software Requirements. In order to access and retain Disclosures electronically, you must satisfy the following computer hardware and software requirements: access to the Internet; an email account and related software capable of receiving email through the Internet; a web browser which is SSL-compliant and supports secure sessions, and hardware capable of running this software.
Withdrawing Consent. You may withdraw your consent to receive Disclosures electronically by contacting us at the address below. If you have already purchased one or more loans, all previously agreed-to terms and conditions will remain in effect, and we will send Disclosures to your verified home address provided during registration.
How to Contact Us regarding Electronic Disclosures. You can contact us via email at support@StreetShares.com or in writing to: StreetShares, Inc. Attn: General Counsel 1900 Campus Commons Drive, Suite 200 Reston, VA 20191
You will keep us informed of any change in your email or home mailing address so that you can continue to receive all Disclosures in a timely fashion. If your registered email address changes, you must notify us of the change by sending an email to support@StreetShares.com or calling 1-800-560-1435. You also agree to update your registered residence address and telephone number on the web site if they change.
You will print or retain a copy of this Agreement for your records. You agree and acknowledge that you can access, receive, and retain all Disclosures electronically sent via email or posted on the Site.
11. Notices. All notices, requests, demands, required disclosures, and other communications to you from StreetShares will be transmitted to you only by email to the email address you have registered on the Site or will be posted on the Site, and shall be deemed to have been duly given and effective upon transmission or posting. If your registered email address changes, you must notify StreetShares promptly. You also agree to promptly update your registered residence/mailing address on the Site if you change your residence. You shall send all notices or other communications required to be given hereunder to StreetShares via email at support@StreetShares.com or in writing to StreetShares,Inc., 1900 Campus Commons Drive, Suite 200, Reston, VA 20191. You may call StreetShares at 1-800-560-1435, but calling may not satisfy your obligation to provide notice hereunder or otherwise preserve your rights.
12. Miscellaneous. We reserve the right to make changes to this Agreement from time to time, and we will send or post electronic notice of such changes by email or via the StreetShares platform. You understand and agree that these terms are subject to change. If you do not agree to the new terms, you may opt out by sending a written notification to StreetShares, Inc., 1900 Campus Commons Drive, Suite 200, Reston, VA 20191 within 30 days of the date on which the new terms are posted or sent. The opt-out notice must be received at the above mailing address within 30 days, in which case your membership will automatically terminate upon the conclusion of any then-active investment or loan period. If you do not opt out, you understand and agree that your membership will continue under the revised terms.
The terms of this Agreement shall survive until the maturity of the Notes purchased by you. The parties stipulate that there are no third-party beneficiaries to this Agreement. You may not assign, transfer, sublicense, or otherwise delegate your rights or responsibilities under this Agreement to any person without prior written consent from StreetShares. Any such assignment, transfer, sublicense, or delegation in violation of this section shall be null and void. This Agreement shall be governed by the laws of the Commonwealth of Virginia without regard to any principle of conflict of laws that would require or permit the application of the laws of any other jurisdiction. Any waiver of a breach of any provision of this Agreement will not be a waiver of any subsequent breach. Failure or delay by StreetShares to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition. If at any time subsequent to the date hereof, any of the provisions of this Agreement shall be held by any court of competent jurisdiction to be illegal, void, or unenforceable, such provision shall be of no force and effect, but the illegality and unenforceability of such provision shall have no effect upon and shall not impair the enforceability of any other provisions of this Agreement. The headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement in any way.
13. Notice of Dispute Resolution by Binding Arbitration and Class Action/Class Arbitration Waiver. To the extent that a claim or dispute arises out of, or in relation to this Agreement, including without limitation, the terms, construction, interpretation, performance, termination, breach, or enforceability of this Agreement, the parties hereby agree that the claim or dispute shall be, at the election of either party, resolved by mandatory binding arbitration in Reston, Virginia within a reasonable time period not to exceed ninety (90) days. The parties agree that the arbitration shall be administered by JAMS and the arbitration shall be conducted in accordance with the Expedited Procedures of the JAMS Comprehensive Arbitration Rules and Procedures except as otherwise agreed in this Agreement. The arbitrator shall be chosen in accordance with the procedures of JAMS, and shall base the award on applicable New York law. The parties agree that the arbitration shall be conducted by a single arbitrator. Judgment on the award may be entered in any court having jurisdiction. The non-prevailing party will be responsible to pay the costs of arbitration of the prevailing party. Each party may pursue arbitration solely in an individual capacity, and not as a representative or class member in any purported class or representative proceeding. The arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. This arbitration section is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16.
14. Funds Investments and Withdrawals.
(a) Investments: All purchases of StreetShares Notes may be held for up to five (5) business days before being credited into Investor’s account. Notwithstanding the foregoing, StreetShares reserves the right to delay crediting an Investor’s account at its sole discretion for any reason as necessary to ensure that funds have properly been deposited with StreetShares including, but not limited to, issues with ACH transfer delays, bank settlement timing, etc.;
(b) All Investor withdrawals may take thirty (30) days from the date of receipt of the funds to be remitted back to Investor. Notwithstanding the foregoing, StreetShares reserves the right to shorten or delay the time frame for remitting funds back to Investor for any reason in its sole discretion, including, but not limited to, ensuring that any investment in Veteran Business Bonds has been correctly processed and cleared;
(c) Investor acknowledges that this product is not a deposit product, that StreetShares is not a bank, and that certain funds availability expectations do not apply to this investment. Veteran Business Bonds are not governed by banking deposit rules, including Regulation CC, and Investor has no expectation that funds will be available on demand; and
(d) Larger withdraws may be also be subject to additional conditions at the sole discretion of StreetShares. Investor acknowledges that should Investor withdraw an aggregate amount of funds from their account in an amount greater than $50,000.00 in any thirty day (30) period, StreetShares may take up to thirty (30) days to process the payment and remit the funds back to Investor’s account
15. Entire Agreement. Except as otherwise expressly provided herein, this Agreement represents the entire agreement between you and StreetShares regarding the subject matter hereof and supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between us.
16. Headings. All section headings herein are inserted for convenience only and do not modify or affect the meaning, construction, or interpretation of any of the provisions of this Agreement.
17. StreetShares Reload Reminder Program ("SRRP"). SRRP is a program that may be implemented by StreetShares to allow investors to take advantage of StreetShares’ innovative investment offering by decluttering the administrative burden of purchasing StreetShares Notes through reminding customers to invest at preset intervals. StreetShares will remind customers using SRRP that an investment is ready to be made on the Company’s website, and the Company will provide Investor with the purchase documents, including the Offering Statement, links to all of StreetShares’ public filings on the SEC EDGAR website, and copies of the Note and Note Investment Agreement. Investor will have five (5) business days to accept or reject the purchase. If Investor accepts the purchase, no further action is required. If Investor rejects the purchase, the Investor shall decline the transaction by changing their settings when logging into their account or contacting StreetShares at firstname.lastname@example.org to cancel the transaction. Each purchase under the SRRP is a separate and new transaction, as evidenced by the new Note and Note Investment Agreement provided to the Investor. Investor must agree to review the Note, Note Investment Agreement, and Company Filing documents, including the Form 1-A, Offering Statement, Form 1-SA, and Form 1-K. Investors may opt out of the SRRP service at any time by contacting StreetShares at email@example.com or by updating their preferences via their account page. Investments may be made bi-weekly or monthly, at the option of the Investor and Investor will, at Investor’s option, select the amount Investor wishes to be reminded to invest into StreetShares Notes. Investor consents and agrees that the SRRP is not an automatic investment in StreetShares Notes and Investor is responsible for reviewing all documents associated with the purchase before investing in the Notes.