424B3 1 mvpreitsuppno3.htm MVP REIT, INC SUPPLEMENT NO. 3 mvpreitsuppno3.htm



MVP REIT, INC.
SUPPLEMENT NO. 3 DATED OCTOBER 17, 2014
TO THE PROSPECTUS DATED APRIL 21, 2014

This Supplement No. 3 supplements, and should be read in conjunction with, our prospectus dated  April 21, 2014, as supplemented by Supplement No. 1 dated May 19, 2014 and Supplement No. 2 dated August 22, 2014, relating to our offering of up to $550,000,000 in shares of our common stock. Terms not otherwise defined herein have the same meanings as set forth in our prospectus. References to “we,” “our,” or “us” in this supplement refer to MVP REIT, Inc. and its subsidiaries, unless the context requires otherwise.
 
The purpose of this supplement is to disclose:

 
·
updates to the suitability standards in our prospectus and the subscription agreement to include specific requirements for Massachusetts investors; and

 
·
updated risk factors and disclosures regarding our distributions.
 
Updates to Suitability Standards and Subscription Agreement
 
 The following suitability requirements for Massachusetts investors are hereby added to the section of our prospectus entitled “Suitability Standards” beginning on page i of our prospectus:

Massachusetts: A Massachusetts investor’s total investment in this offering and similar direct participation investments shall not exceed 10% of his or her liquid net worth. “Liquid net worth” is defined as that portion of net worth (total assets exclusive of home, home furnishings, and automobiles minus total liabilities) that is comprised of cash, cash equivalents, and readily marketable securities.  In addition, shares will be sold in Massachusetts to accredited investors only (as defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended).”
 
In addition, attached hereto as Appendix A is an updated subscription agreement for Massachusetts investors, which includes certification on accredited investor status to be made by each Massachusetts investor.
 
 Updated Risk Factors and Disclosures Regarding Distributions
 
The following risk factor appearing on the cover page, in the summary and in the risk factor section of the prospectus is hereby amended and restated in its entirety to add the following disclosure (in bold and underlined text).
 
As of the date of this prospectus supplement, we have paid distributions from offering proceeds only. We may not be able to make distributions on a monthly basis and may pay distributions from sources other than cash flow from operations, including the sale of assets, borrowings or offering proceeds. We have no limits on the amounts we may pay from such sources. If we pay distributions from sources other than our cash flow from operations, the funds available to us for investments would be reduced and your share value may be diluted.

 The “Estimated Use of Proceeds” disclosures in the summary and body of the prospectus are hereby supplemented to add the following:
 
In addition, as of the date of this prospectus supplement, we have paid distributions from offering proceeds only. We may not be able to make distributions on a monthly basis and may pay distributions from sources other than cash flow from operations, including the sale of assets, borrowings or offering proceeds. We have no limits on the amounts we may pay from such sources. If we pay distributions from sources other than our cash flow from operations, the funds available to us for investments would be reduced and your share value may be diluted.
The “Distributions” disclosures in the summary and in the body of the prospectus are hereby amended to move the following paragraph to appear immediately after the heading “Distributions”:

To date, we have paid all of our distributions from proceeds from issuance of our common stock in the offering or under our distribution reinvestment plan. Although our distribution policy is not to use the proceeds of this offering to make distributions, our organizational documents permit us to pay distributions from any source, including offering proceeds, borrowings, or sales of assets. Our organization documents permit us to pay distributions from any source, including offering proceeds, borrowings, or sales of assets. We have not placed a cap on the use of offering or other proceeds to fund distributions. Our distribution policy is to fund the payment of regular distributions to our stockholders from cash flow from our operations. Until the proceeds from this offering are fully invested and from time to time during the operational stage, however, we may not generate sufficient cash flow from operations to fund distributions. We can give no assurance that we will be able to continue to pay distributions, or to pay distributions solely from our funds from operations in the future. All of our distributions to date have constituted a return of capital, rather than a return on capital. To the extent that portions of the distributions that we make may represent a return of capital to you, it will lower your tax basis in our shares. If we continue to pay distributions from sources other than our cash flow from operations, we will have less funds available for investments and your overall return may be reduced. At the end of each calendar quarter, we will provide notice to our stockholders identifying the source or sources of the distribution payments made in the quarter then ended.
 
 
 

 

Appendix A

 Updated Subscription Agreement –
Includes Massachusetts Accredited Investor Certification

Company Logo
             MVP REIT, Inc.
             Subscription Agreement
 


INSTRUCTIONS TO INVESTORS
 

Subscription of shares may not be accepted until at least five business days after the subscriber receives the final prospectus. You will receive a confirmation of your purchase.
 
SECTION 1:       Indicate investment amount
SECTION 2: Choose type of ownership
SECTION 3:      All names, addresses, Social Security or Tax ID numbers of all investors or Trustees
SECTION 4: Distribution allocation
SECTION 5:      Signatures and initials of all investors
SECTION 6:      Registered Representative/Financial Advisors to complete and sign
SECTION 7:Additional instructions to investors
SECTION 8:      Substitute W-9 Form for investors
 
NON CUSTODIAL AND CUSTODIAL OWNERSHIP
 
Please mail completed and executed ORIGINAL documents, along with your check made payable to “MVP REIT, Inc.” to the following address:
 
Regular Mail:                                MVP REIT, Inc.
Payment by Wire:
DST as agent for MVP REIT, Inc.
P.O Box 219390
 
DDA: 987-2013-247
Kansas City, MO 64121-9390
 
 
 
 
 
 
 
UMB: 1010-0069-5
 
     
   Overnight Mail:  MVP REIT, Inc.
   
                               430 W. 7th Street
   
                               Kansas City, MO 64105
   
 
 
 
·
Accounts with more than one owner must have all parties sign where indicated on Section 5.
 
·
Attach copies of all plan documents for Trust, Corporations, Partnerships and Pension Plans.
 
·
If you have any questions, please call MVP Investor Services at 877-684-6871.
 

CUSTODIAL OWNERSHIP
 

Please complete the subscription agreement along with any forms/applications provided by your custodian and SEND ALL CUSTODIAN DOCUMENTS ALONG WITH THIS ORIGINAL SUBSCRIPTION AGREEMENT DIRECTLY TO YOUR CUSTODIAN.  CUSTODIAN:  SEND ALL PAPERWORK TO THE ABOVE ADDRESS ONLY
 
 
·
If you have any questions, please call MVP Investor Services at 877-684-6871.

 
 

 


 
 
1.
OWNERSHIP
 

Purchase of MVP REIT, Inc. shares at $9.00 per share.                                                                                             Method of Payment:
 
Minimum investment is $4,500.00 for Non-Custodial                                                                                           q Check Enclosed
Accounts and $1,350.00 for Custodial Accounts                                                                                           q Funds Wired**
 
q
Check sent separately
 
Total Invested: $                                                 **Payment by Wire: Number of Shares:
DST as agent for MVP REIT, Inc DDA: 987-2013-247
UMB: 1010-0069-5
 
This is an:                                                        q Initial Investment                                                                         q Additional Investment to Account # 
 

 
 
2.
OWNERSHIP – Non Custodial Ownership
 
qIndividual Ownership
qTOD**
 
qCommunity Property WROS*
 
qUTMA/UGMA
State of                                          
qJoint Tenants with Rights of Survivorship
qTOD**
qCorporate Ownership
Include Corporate Resolution
q“C Corp”q ”S Corp”
qPension/Profit Sharing Plan***
Include Plan Documents
qTenants in Common*
qLLC Ownership
Include LLC Agreement
qNon-Profit
Include Plan Document
qTenants by the Entirety*
qPartnership Ownership
Include Partnership Agreement
qOther (Specify)
qCommunity Property*
qTrust-
Include Trust Certification
 
 

*All parties must sign.   **Please complete separate Transfer on Death (TOD) form.
*** See “ERISA Consideration” in the Company’s prospectus for a discussion of risks related to an investment in shares by certain tax-exempt of tax-deferred plans.
I/we have made the above designation taking into consideration what is in our best interest.
 
Initial:                            
 

 
2a. OWNERSHIP - Custodial Ownership
 
qTraditional IRA*
 
qROTH IRA*
 
q        Simplified Employee Pension/Trust (S.E.P)*
 
q        Pension or Profit Sharing Plan**
Name of Custodian or Institution                                                                                                            
Mailing Address                                                                                                            
City                                                  
State                   
Zip                     
Custodian Tax ID #                                                  
Custodian Telephone                                                                                 
Custodian Account #                                                 
*CUSTODIAL SIGNATURE REQUIRED                                                                                                                                        

 
 

 

3. INVESTOR INFORMATION
 
 
INVESTOR/BENEFICIAL OWNER
Circle One:
 
Mr.    q
 
Mrs.    q
 
Ms.    q
Investor/Trustee/Administrator/UTMA/UGMA*
     
*if UTMA/UGMA please provide minor’s name
     
 


First_                                           _       Middle Int.

Last                                                      

 


Date of Birth MM/DD/YYYY

Social Security # or Tax ID #                                                           

 

Citizen Status (Required) q                                                        U.S. Citizen                           q Resident Alien                                 qNon-Resident Alien*

 
*If non-resident agent, investor must submit an original of the appropriate W-8 Form (W-8ECN, W-8ECI, W-8EXP or W-8IMY) in order to make an investment.

 

CO-INVESTOR/BENEFICIAL OWNER
Mr.    q
Mrs.         q
Ms.    q
Circle One:
Co-Investor/Co-Trustee/Administrator/UTMA/UGMA*
*if UTMA/UGMA please provide custodian’s name
     
 


 
 

 


First_                                           

Middle Int.                      

Last

 


 
 

 


Date of Birth MM/DD/YYYY                                                            

Social Security # or Tax ID #                                                             

 

Citizen Status (Required) q                                                         U.S. Citizen                          q Resident Alien                                 qNon-Resident Alien*
 




TRUST/PENSION/PSP/LLC/PARTNERSHIPS OR OTHER - Please Complete Title
Entity Name:
 
Tax ID #:
 
Date of Trust/Pension/PSP/Other:

 

INVESTOR ADDRESS
Resident Address (no P.O. boxes required by law)
Street:
City:
State:
Zip:
Alternate Mailing Address (P.O. boxes are acceptable)
Street:
City:
State:
Zip:
Home Telephone:
Business Telephone:

 
 

 


4. DISTRIBUTION OPTIONS
 

NON-CUSTODIAL OWNERSHIP

 

qMail to Address of Record                                                         q Check Box to Change Current Distribution Option
(applicable on additional purchases only)
 
qDistribution Reinvestment Plan: Investor elects to participate in the Distribution Reinvestment Plan described in the prospectus and reinvest the entire distribution.
 
Initial:                             
 
Distribution Sent:
 
 
q

Via Mail-
Complete information below
 
 
q

Via Electronic Deposit (ACH) To authorize ACH as set forth in section 7 please check the box and complete the section below
If ACH, check type of accountqChecking qSavings

 

Name of Bank, Brokerage Firm or Individual                                                                                                                                              
 
Distribution Mailing Address                                                                                                                                              
 

City                                                         State                                 Zip
 

ABA /Routing #                                                         Bank or Brokerage Account #
 

REQUIRED: A VOIDED CHECK/DEPOSIT SLIP MUST BE ENCLOSED FOR DISTRIBUTIONS VIA ACH
 

CUSTODIAL OWNERSHIP
 

 
 
q
Mail to Custodial Account
q Check Box to Change Current Distribution Option
applicable on additional purchases only
 
q      Distribution Reinvestment Plan: Investor elects to participate in the Distribution Reinvestment Plan described in the prospectus and reinvest the entire cash distribution. Investor may change such election at any time by written notice to the Company. Under no event will the Distribution Reinvestment Plan allow, or be amended to allow, automatic enrollment of investors in the Plan without affirmative consent from the investors to enroll.
 
Initial:                             

 
 

 
This space has been intentionally left blank

 
 

 

5. SIGNATURE
The undersigned acknowledges and/or represents (or in the case of fiduciary accounts the person authorized to sign on such subscriber’s behalf) the following: (You must initial each of the representations below)
Owner
Co-Owner
a)(i)(A) I/we have a minimum net worth (not including home, home furnishings and personal automobile) of at least $70,000 and a gross annual income (without regard to any investment in MVP REIT, Inc.)  of at least $70,000; or (B) I/we have a net worth (excluding home, home furnishings and automobiles) of at least $250,000; and
 
(ii)          we have a net worth (excluding home, home furnishings and automobiles) of at least ten times our investment in MVP REIT and similar programs; and
 
(iii)          I/we meet such higher suitability as may be required by certain states and set  forth in Section 7 Additional Instructions to Investors.” (You must initial the additional representation set forth in Section 7, to the extent applicable.)
 
In the case of sales to fiduciary accounts, the suitability standards must be met by the beneficiary, the fiduciary account or by the donor or grantor who directly or indirectly supplies the funds for the purchase of the shares.
Owner
Co-Owner
b)I/We have received the final prospectus of MVP REIT, Inc. (Subscription of shares may not be accepted until at least five business days after the date the subscriber receives the final prospectus)
Owner
Co-Owner
c)I/We are purchasing the shares for my/our own account and I am/we are purchasing shares o behalf of a trust or other entity of which I am/we are trustee(s) or authorized agent(s) I/we have due authority to execute the Subscription Agreement and do hereby legally bind the trust or other entity of which I am/we are trustee(s) or authorized agent(s).
Owner
Co-Owner
d)I/We acknowledge that shares are not liquid, there is not current market for the shares and the investors may not be able to sell the securities.
 






Signature-Investor/Trustee/Administrator/Power    of Attorney (include POA)

Date (MM/DD/YYYY)


 

Print Name-Investor/Trustee/Administrator/Power of Attorney


 

Signature-Co-Investor/Co-Trustee (if Applicable)                                                                                  Date (MM/DD/YYYY)
 



Print Name-Co-Investor/Co-Trustee


 

Signature - Custodian                                                                       Date (MM/DD/YYYY) For custodian Use-Affix Medallion Signature Guarantee
Stamp here by stamping you are attesting to Section 2a

 
 

 


 
 
6.
BROKER DEALER/REGISTERED REPRESENTATIVE
 



BROKER DEALER DATA- completed by selling Registered Representative (Please use Representative address-not home office address)
 
Firm Name                                                                                                                                              
 
Firm Mailing Address                                                                                                                                              
 

City                                                                                          State                     Zip

 

Broker Dealer Rep ID#                                                                       Registered Representative Telephone
 
Registered Representative E-Mail                                                                                                                                                 
 

Registered Representative Name                                                                                                                                              
 

Branch #                                                                                                                                              
 
 Broker Dealer Client Account #                                                                                                                                              
 

RIA-Registered
 
Investment Advisors                                           REGISTERED INVESTMENT ADVISOR (RIA) NO SALES COMMISSIONS ARE PAID
ON THESE ACCOUNTS. Check only if investment is made through the RIA in its capacity as an RIA and not in its capacity as a Registered Representative, if applicable, whose agreement with the investor includes a fixed or “wrap” fee feature for advisory and related brokerage services. If an advisor is a FINRA licensed Registered Representative affiliated with a broker dealer, the transaction should be conducted through the broker dealer, not through the RIA.
 
The undersigned confirm on behalf of the Broker Dealer that they (i) have reasonable grounds to believe that the information and representations concerning the investor identified herein are true, correct and complete in all respects; (ii) have discussed such investor’s prospective purchase of Shares with such investor, (iii) have advised such investor of all pertinent facts with regard to the lack of liquidity and marketability of the Shares; (iv) have delivered a current prospectus and related supplements, if any , to such investor; (v) have reasonable grounds to believe that the investor is purchasing these Shares for his or her own account; and (vi) have reasonable grounds   to believe that the purchase of Shares is a suitable investment for such investor, that such investor is in a financial position to enable such investor to realize the benefits of such an investment and to suffer any loss that may occur with respect thereto.
 
The undersigned Registered Representative/RIA further represents and certifies that, in connection with this subscription for Shares, he/she has complied with and has followed all applicable policies and procedures under the firm’s existing Anti-Money Laundering Program and Customer Identification Program
 





Signature-Registered Representative/RIA (Required)                                                                                            Signature-Broker/Dealer (if Applicable)

 
 

 


 
 
7.
ADDITIONAL INSTRUCTIONS TO INVESTORS
 


 
CERTAIN STATES HAVE IMPOSED SPECIAL FINANCIAL SUITABILITY STANDARDS FOR SUBSCRIBERS WHO PURCHASE SHARES
 
General Standards for all Investors: Investors must have (i) either (a) a net worth (excluding home, home  furnishings and automobiles) of at least $250,000 or (b) a minimum annual gross income of $70,000 and a minimum net worth (excluding home, home furnishings and automobiles) of $70,000; and (ii) a net worth (excluding home, home furnishings and automobiles) of at least ten times their investment in MVP REIT and similar programs.
 
Specific Standards for certain Investors: Investors residing in the following states (if the offering is permitted in such state) must meet additional financial suitability standards as set forth below. In addition to meeting the general standards, the undersigned further acknowledges and/or represents (or in the case of fiduciary accounts the person authorized to sign on such subscriber’s behalf) that the undersigned meets the following suitability standards to the extent applicable (initial below where relevant):
 
 
 
 
 
Owner
Co-Owner
Alabama: In addition to the general suitability standards, this investment will only be sold to Alabama residents that represent that they have a liquid net worth at least 10 times their investment in this program and its affiliates and they meet the $70,000/$70,000/$250,000 suitability requirement.
Owner
Co-Owner
California: Investors must have either (i) a net worth of at least $250,000, or (ii) a gross annual income of at least $75,000 and a net worth of at least $75,000. Please also see Exhibit A attached hereto for restrictions on transfers of the shares under the California Code of Regulations.
Owner
Co-Owner
Iowa: Investors must have (excluding the value of their home, furnishings and automobiles) either (i) a minimum net worth of $100,000 and an annual income of
$70,000, or (ii) a minimum net worth of $350,000. In addition, investors may not invest, in the aggregate, more than 10% of their liquid net worth in us and all of our affiliates. “Liquid net worth” is defined as that portion of net worth that consists of cash, cash equivalents and readily marketable securities.
Owner
Co-Owner
Kansas. The Office of the Securities Commissioner recommends that Kansas investors limit their aggregate investment in the securities of the Issuer and other non-traded business development companies to not more than 10% of their liquid net worth. For these purposes, liquid net worth shall be defined as that portion of total net worth (total assets minus liabilities) that is comprised of cash, cash equivalents and readily marketable securities, as determined in conformity with Generally Acceptable Accounting Principles.
Owner
Co-Owner
Kentucky, Michigan, Oregon and North Dakota: Investors must have a liquid net worth of at least ten (10) times their investment in us.
Owner
Co-Owner
Maine: The Maine Office of Securities recommends that an investor’s aggregate investment in this offering and similar offerings not exceed 10% of the investor’s liquid net worth. For this purpose, “liquid net worth” is defined as that portion of net worth that consists of cash, cash equivalents and readily marketable securities.
Owner
Co-Owner
Massachusetts: A Massachusetts investor’s total investment in this offering and similar direct participation investments shall not exceed 10% of his or her liquid net worth. “Liquid net worth” is defined as that portion of net worth (total assets exclusive of home, home furnishings, and automobiles minus total liabilities) that is comprised of cash, cash equivalents, and readily marketable securities.  In addition, shares will be sold in Massachusetts to accredited investors only (as defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended). Massachusetts investors are required to sign and complete the accredited investor certification attached as Exhibit B hereto.
 
Owner
Co-Owner
Nevada: Investors must have (excluding the value of their home, furnishings and automobiles) either: (i) a minimum net worth of $75,000 and an annual income of
$75,000, or (ii) a minimum net worth of $500,000. In addition, the investment in us must not exceed 10% of the investor’s net worth (exclusive of home, furnishings and automobiles).
Owner
Co-Owner
New Jersey: Investors who reside in the state of New Jersey must have either (i) a liquid net worth of $250,000 and annual gross income of $70,000 or (ii) a minimum liquid net worth of $500,000. Additionally, a New Jersey investor’s total investment in this offering and similar direct participation investments shall not exceed 10% of his or her liquid net worth. “Liquid net worth” is defined as that portion of net worth (total assets exclusive of home, home furnishings, and automobiles minus total liabilities) that is comprised of cash, cash equivalents, and readily marketable securities.
Owner
 
Co-Owner
Ohio: It shall be unsuitable for an Ohio investor’s aggregate investment in shares of the Company, affiliates of the Company and in other non-traded real estate investment programs to exceed ten percent (10%) of his or her liquid net worth.
Owner
Co-Owner
 
 
Pennsylvania: Because the minimum offering of our common stock is less than $50 million, Pennsylvania investors are cautioned to evaluate carefully our ability to accomplish fully our stated objectives and to inquire as to the current dollar volume of our subscription proceeds. Notwithstanding our $3.0 million minimum offering amount in other jurisdictions, we will not sell any shares to Pennsylvania investors unless we raise a minimum of $25 million in gross offering proceeds (including sales made to residents of other jurisdictions). See “Plan of Distribution — Special Notice to Pennsylvania Investors.”
Owner
 
Co-Owner
 
 
Tennessee: We will not offer to sell our common stock in Tennessee unless and until the offer and sale is permitted in such state. In addition, investors must have (excluding the value of their home, home furnishings and automobiles) either (i) a minimum annual gross income of $100,000 and a minimum net worth of $100,000, or (ii) a minimum net worth of $500,000.  Because the minimum offering of our common stock is less than $50 million, Tennessee investors also are cautioned to evaluate carefully our ability to accomplish fully our stated objectives and to inquire as to the current dollar volume of our subscription proceeds. Notwithstanding our $3.0 million minimum offering amount in other jurisdictions, we will not sell any shares to Tennessee investors unless we raise a minimum of $10 million in gross offering proceeds (including sales made to residents of other jurisdictions). See “Plan of Distribution — Special Notice to Tennessee Investors.”
WE INTEND TO ASSERT THE REPRESENTATIONS IN THIS SUBSCRIPTION AGREEMENT AS A DEFENSE IN ANY SUBSEQUENT LITIGATION WHERE SUCH ASSERTION WOULD BE RELEVANT.  WE HAVE THE RIGHT TO ACCEPT OR REJECT THIS SUBSCRIPTION IN WHOLE OR IN PART SO LONG AS SUCH PARTIAL ACCEPTANCE OR REJECTION DOES NOT RESULT IN AN INVESTMENT OF LESS THAN THE MINIMUM AMOUNT SPECIFIED IN THE PROSPECTUS.  AS USED ABOVE, THE SINGULAR INCLUDES THE PLURAL IN ALL RESPECTS IF SHARES ARE BEING ACQUIRED BY MORE THAN ONE PERSON.  THIS SUBSCRIPTION AGREEMENT AND ALL RIGHTS HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS.
 
By executing this Subscription Agreement, the subscriber is not waiving any rights under federal or state law.
 
AUTOMATED CLEARING HOUSE (“ACH”) LANGUAGE- I/we hereby authorize MVP REIT, Inc. (“Company”) to deposit distributions from my/our common stock of the Company into the account listed in Section 4 of the Subscription Agreement. I /we further authorize the Company to debit my account noted in Section 4 of the Subscription Agreement in the event that the Company erroneously deposits additional funds to which I am not entitled, provided that such debit shall not exceed the original amount of the erroneous deposit.  In the event that I withdraw funds erroneously deposited into my account before the Company reverses such deposit, I agree that the Company has the right to retain any future distributions to which I am entitled until the erroneously deposited amounts are recovered by the Company.
This authorization to remain in full force and effect until the Company has received written notice from me of the termination of this authorization in time to allow reasonable opportunity to act on it, or until the Company has sent me written notice of termination of this authorization.  This authorization is not valid to the extent that distributions are reinvested pursuant to the Distribution Reinvestment Plan.
 
 
8.
SUBSTITUTE W-9
 
To prevent backup withholding on any payment made to a stockholder with respect to subscription proceeds held in escrow, the stockholder is generally required to provide current TIN (or the TIN of any other payee) and certain other information by completing the form below, certifying that the TIN provided on Substitute Form W-9 is correct (or that such investor is awaiting a TIN), that the investor is a U.S. person, and that the investor is not subject to backup withholding because (i) the investor is exempt from backup withholding, (ii) the investor has not been notified by the IRS that the investor is subject to backup withholding as a result of failure to report all interest or dividends or (iii) the IRS has notified the investor that the investor is no longer subject to backup withholding. If the box in Part 1-B (Awaiting TIN) is checked and a TIN is not provided by the time any payment is made in connection with the proceeds held in escrow, 28% of all such payments will be withheld until a TIN is provided and if a TIN is not provided within 60 days, such withheld amounts will be paid over to the IRS.
 
SUBSTITUTE FORM W-9: Department of the Treasury Internal Revenue Service Payer’s Request for Taxpayer Identification Number (“TIN”)
 
Part 1 - TAXPAYER IDENTIFICATION NUMBER (“TIN”)
A.
Social Security Number OR Employer Identification Number
 
 
B.
Awaiting TIN
Please sign and date ADDITIONAL CERTIFICATION below.
 
C.
Exempt TIN
 
Part 2 - CERTIFICATION - Under penalties of perjury, I certify that:
(1)          The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me);
 
(2)          I am not subject to backup withholding because (a) I am exempt from withholding or (b) I have not been notified by the Internal Revenue Service (the “IRS”) that I am subject to withholding as a result of failure to report all interest or dividends or (c) the IRS has notified me that I am no longer subject to backup withholding; and
(3)
I am a U.S. person (including a U.S. resident alien)
 
YOU MUST CROSS OUT ITEM (2) IN PART 2 ABOVE IF YOU HAVE BEEN NOTIFIED BY THE IRS THAT YOU ARE SUBJECT TO BACKUP WITHHOLDING BECAUSE OF UNDER-REPORTING INTEREST OR DIVIDENDS ON YOUR TAX RETURNS. HOWEVER, IF AFTER BEING NOTIFIED BY THE IRS STATING THAT YOU WERE SUBJECT TO BACKUP WITHHOLDING YOU RECEIVED ANOTHER NOTIFICATION FROM THE IRS STATING YOU ARE NO LONGER SUBJECT TO WITHHOLDING, DO NOT CROSS OUT ITEM (2). IF YOU ARE EXEMPT FROM BACKUP WITHHOLDING, CHECK THE BOX IN PART 1-C.
 
Signature                                                                                   Date (mm/dd/yyyy)                                         /_          /    
 

Name (Please print)                                                                                                              
 

Address (Please print)                                                                                                              
 

NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO YOU FROM THE ESCROW ACCOUNT. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL INFORMATION.
 
ADDITIONAL CERTIFICATION
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED B IN PART 1 OF SUBSTITUTE FORM W-9. CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification Number has not been issued to me and that either (1) I have mailed or delivered an application to receive a Taxpayer Identification Number to the appropriate Internal Revenue Center   or Social Security Administration Office or (2) I intend to mail or deliver an application in the near future. I understand that if   I do not provide a Taxpayer Identification Number to the Depositary by the time of payment, 28% of all reportable payments made to me will be withheld.
 


Signature

Date (mm/dd/yyyy)                                       /_             /             


 
 

 


 
EXHIBIT A
 

RESTRICTIONS ON TRANSFER SET FORTH IN RULE 260.141.11 OF THE CALIFORNIA CODE OF REGULATIONS TITLE 10, CHAPTER 3 (The “CA Code”)
 
(a)      The issuer of any security upon which a restriction on transfer has been imposed pursuant to Section 260.102.6, 260.141.10 or 260.534 shall cause a copy of this section to be delivered to each issuee or transferee of such security.
 
(b)       It is unlawful for the holder of any such security to consummate a sale or transfer of such security, or any interest therein, without the prior written consent of the Commissioner (until this condition is removed pursuant to Section 260.141.12 of these rules), except:
 
(1)       to the issuer;
 

 
(2)
pursuant to the order or process of any court;
 

 
(3)
to any person described in Subdivision (i) of Section 25102 of the CA Code or Section
260.105.14 of these rules;
 
(4)       to the transferors ancestors, descendants or spouse or any custodian or trustee for the account of the transferor or the transferors ancestors, descendants or spouse; or to a transferee by a trustee or custodian for the account of the transferee or the transferees ancestors, descendants or spouse;
 

 
(5)
to the holders of securities of the same class of the same issuer;
 

 
(6)
by way of gift or donation inter vivos or on death;
 
(7)       by or through a broker-dealer licensed under the CA Code (either acting as such or as a finder) to a resident of a foreign state, territory or country who is neither domiciled in this state to the knowledge of the broker-dealer, nor actually present in this state if the sale of such securities is not in violation of any securities law of the foreign state, territory or country concerned;
 
(8)       to a broker-dealer licensed under the CA Code in a principal transaction, or as an underwriter or member of an underwriting syndicate or group;
 
(9)       if the interest sold or transferred is a pledge or other lien given by the purchaser to the seller upon a sale of the security for which the Commissioner’s written consent is obtained or under this rule is not required;
 
(10)          by way of a sale qualified under Sections 25111, 25112, or 25113, or 25121 of the CA Code, of the securities to be transferred, provided that no order under Section 25140 or Subdivision
(a) of Section 25143 is in effect with respect to such qualification;
 
(11)          by a corporation to a wholly owned subsidiary of such corporation, or by a wholly owned subsidiary of a corporation to such corporation;

 
 

 


(12)          by way of an exchange qualified under Section 25111, 25112, or 25113 of the CA Code, provided that no order under Section 25140 or Subdivision (a) of Section 25148 is in effect with respect to such qualification;
 
(13)          between residents of foreign states, territories or countries who are neither domiciled nor actually present in this state;
 
(14)          to the State Controller pursuant to the Unclaimed Property Law or to the administrator of the unclaimed property law of another state; or
 
(15)          by the State Controller pursuant to the Unclaimed Property Law or to the administrator of the unclaimed property law of another state, if, in either such case, such person (i) discloses to potential purchasers at the sale that transfer of the securities is restricted under this rule, (ii) delivers to each purchaser a copy of this rule, and (iii) advises the Commissioner of the name of each purchaser;
 
(16)          by a trustee to a successor trustee when such transfer does not involve a change in the beneficial ownership of the securities, provided that any such transfer is on the condition that any certificate evidencing the security issued to such transferee shall contain the legend required by this section.
 
(c)      The certificate representing all such securities subject to such a restriction on transfer, whether upon initial issuance or upon any transfer thereof, shall bear on their face a legend, prominently stamped or printed thereon in capital letters of not less than 10- point size, reading as follows:
 
IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER’S RULES.

 
 

 

EXHIBIT B
ACCREDITED INVESTOR CERTIFICATION
 
The undersigned has read the definition of “Accredited Investor” from Rule 501 of Regula­tion D attached hereto, and certifies that:
 
 
 
A.
¨
The undersigned is an “Accredited Investor” for one or more of the following reasons:
 
¨           (a)           The undersigned is an individual (not a partnership, corporation, etc.) with a net worth, either alone or with his or her spouse, of more than $1,000,000 (excluding the value of the primary residence of such individual and any debt secured by the primary residence other than (1) debt secured by the primary residence that exceeds the fair market value of the primary residence, or (2) debt secured by the primary residence that such individual have borrowed within the past 60 days not for the purpose of purchasing the primary residence).
¨           (b)           The undersigned is an individual (not a partnership, corporation, etc.) who had an income in excess of $200,000 in each of the two most recent years, or joint income with his or her spouse in excess of $300,000 in each of those years (in each case including foreign income, tax exempt income and full amount of capital gains and losses but excluding any income of other family members and any unrealized capital appreciation) and has a reasonable expectation of reaching the same income level in the current year;
¨           (c)           The undersigned is a director or officer of the Company;
¨           (d)           The undersigned is a corporation, partnership, Massachusetts business trust, or non-profit organization within the meaning of Section 501(c)(3) of the Internal Revenue Code, in each case not formed for the specific purpose of making investments and with total assets in excess of $5,000,000;

 

 (describe entity)
 
¨           (e)           The undersigned is a trust with total assets in excess of $5,000,000, not formed for the specific purpose of making investments, whose purchase would be directed by a “sophisticated person” as described in Rule 506(b)(2)(ii);
¨           (f)           The undersigned is a revocable trust which may be amended or revoked by the grantors, and all of the grantors satisfy the conditions of clauses (a), (b) or (c) above and have completed copies of this Investor Questionnaire, which copies are delivered to the Company herewith;
¨           (g)           The undersigned is an entity all the equity owners of which are “accredited investors” within one or more of the above categories.  If relying upon this category alone, each equity owner must complete a separate copy of this Investor Questionnaire;

 

 (describe entity)
 
 
 
B.
¨
The undersigned is not an “Accredited Investor”.
 
By signing below, I hereby acknowledge that the representations set forth in this Investor Questionnaire are accurate and complete in all respects, and I hereby undertake to immediately notify you in writing regarding any material change in the information set forth herein.  I understand that you and sponsors of prospective investment opportunities will rely on the accuracy and completeness of these representations for the purpose of determining my suitability as a prospective investor under applicable securities laws, and that a false representation may constitute a violation of law and that any person who suffers damage as a result of a false representation may have a claim against me for damages.
 
Dated:  _________________________                                                                           Signature


Print Name/Title (if applicable)

 
 

 

Rule 501.                      Definitions and Terms Used in Regulation D.
 
As used in Regulation D, the following terms have the meaning indicated:
 
(a) Accredited investor. Accredited investor shall mean any person who comes within any of the following categories, or who the issuer reasonably believes comes within any of the following categories, at the time of the sale of the securities to that person:
 
(1)  Any bank as defined in section 3(a)(2) of the Act, or any savings and loan association or other institution as defined in section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity; any broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934; any insurance company as defined in section 2(13) of the Act; any investment company registered under the Investment Company Act of 1940 or a business development company as defined in section 2(a)(48) of that Act; any Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958; any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; any employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;
 
 (2)  Any private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940;
 
 (3)  Any organization described in section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;
 
 (4)  Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer;
 
 (5)  Any natural person whose individual net worth, or joint net worth with that person's spouse, exceeds $1,000,000.
 
(i)  Except as provided in paragraph (a)(5)(ii) of this section, for purposes of calculating net worth under this paragraph (a)(5):

 (A)  The person's primary residence shall not be included as an asset;

 (B)  Indebtedness that is secured by the person's primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of sale of securities exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and

 (C)  Indebtedness that is secured by the person's primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be included as a liability;
 
 (ii)  Paragraph (a)(5)(i) of this section will not apply to any calculation of a person's net worth made in connection with a purchase of securities in accordance with a right to purchase such securities, provided that:
 
           (A)  Such right was held by the person on July 20, 2010;
 
         (B)  The person qualified as an accredited investor on the basis of net worth at the time the person acquired such right; and
            
           (C)  The person held securities of the same issuer, other than such right, on July 20, 2010.
 
 (6)  Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year;
 
 (7)  Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii); and
 
 (8)  Any entity in which all of the equity owners are accredited investors.

 [Remainder omitted]