Large accelerated filer ☐ | | | Accelerated filer ☐ |
Non-accelerated filer ☒ | | | Smaller reporting company ☒ |
| | Emerging growth company ☐ |
• | Our current stockholders may purchase additional shares, if desired, by automatically reinvesting their cash distributions in shares under the DRIP. |
• | The purchase price for shares under the DRIP depends on whether we issue new shares to DRIP participants or we or any third-party administrator obtains shares to be issued to DRIP participants by purchasing them in the open market. The purchase price for shares issued directly by us will be 97% (or such other discount as may then be in effect) of the Market Price (as defined below) of our Class C common stock. This discount is subject to change from time to time, in our sole discretion, but will be between 0% to 5% of the Market Price. We will advise DRIP participants through a press release of any change in the applicable discount at least 30 days prior to the effective date of the change. The purchase price for Class C common stock that we or any third-party administrator purchases from parties other than us, either in the open market or in privately negotiated transactions, will be 100% of the “average price per share” (as described below) actually paid for such shares, excluding any processing fees. We are not required to provide any notice to DRIP participants as to the source of the Class C common stock to be issued under the DRIP. |
• | Record owners may join the DRIP by completing and signing an enrollment form and returning it to the administrator, or by following the enrollment procedures specified on the administrator’s website at www.computershare.com/investor. Enrollment forms may be obtained at any time by written request, by contacting the administrator at the address and telephone number provided herein, or via the internet at the administrator’s website at www.computershare.com/investor. If you are already enrolled in the DRIP, no action is required. |
• | Participants may terminate participation in the DRIP at any time without penalty by notifying our appointed third-party DRIP administrator. |
• | We will offer shares pursuant to the DRIP until we sell all $100,000,000 of shares of our common stock in this offering, the proposed maximum aggregate offering price of this offering; provided, however, that our board of directors may amend, suspend or terminate the DRIP for any reason by providing ten days’ notice to participants in the plan. |
• | Cash distributions are still taxable even though they will be reinvested in shares pursuant to the DRIP. |
• | You should carefully consider the specific risks set forth under the caption “Risk Factors” under Item 1A of Part I of our most recent Annual Report on Form 10-K and Item 1A of Part II of our Quarterly Reports on Form 10-Q, which are incorporated by reference into this prospectus, before making an investment decision. |
| | Number of Shares Being Offered | | | Offering Price Per Share | | | Maximum Proceeds (Before Expenses) | |
Class C Common Stock, $0.001 par value per share | | | 4,000,000 | | | $(1) | | | $100,000,000 |
1) | The purchase price for shares under the DRIP depends on whether we issue new shares to DRIP participants or we or any third-party administrator obtains shares to be issued to DRIP participants by purchasing them in the open market. The purchase price for shares issued directly by us will be 97% (or such other discount as may then be in effect) of the Market Price of our Class C common stock. This discount is subject to change from time to time, in our sole discretion, but will be between 0% to 5% of the Market Price. We will advise DRIP participants through a press release of any change in the applicable discount at least 30 days prior to the effective date of the change. The purchase price for Class C common stock that we or any third-party administrator purchases from parties other than us, either in the open market or in privately negotiated transactions, will be 100% of the average price per share actually paid for such shares, excluding any processing fees. We are not required to provide any notice to DRIP participants as to the source of the Class C common stock to be issued under the DRIP. |
• | to provide attractive growth and sustainable cash distributions; |
• | to realize appreciation from proactive investment selection and management; |
• | to provide future opportunities for growth and value creation; and |
• | to provide an investment alternative for stockholders seeking to allocate a portion of their long-term investment portfolios to industrial manufacturing real estate. |
• | price paid per share of Class C common stock; |
• | total number of shares of Class C common stock purchased, including fractional shares; |
• | date of stock purchases; and |
• | total number of shares of Class C common stock in your DRIP account. |
• | in contravention of any U.S. or international laws and regulations, including without limitation any anti-money laundering or anti-terrorist financing sanction, regulation, or law promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury (OFAC) or any other U.S. governmental entity (such sanctions, regulations and laws, together with any supplement or amendment thereto, are referred to herein as the U.S. Sanctions Laws), such that the offer, sale or delivery, directly or indirectly, would contravene such U.S. Sanctions Laws; or |
• | on behalf of terrorists or terrorist organizations, including those persons or entities that are included on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC, as such list may be amended from time to time, or any other lists of similar import as to any non-U.S. country, individual, or entity. |
• | to provide attractive growth in AFFO and sustainable cash distributions; |
• | to realize appreciation from proactive investment selection and management; |
• | to provide future opportunities for growth and value creation; and |
• | to provide an investment alternative for stockholders seeking to allocate a portion of their long-term investment portfolios to industrial manufacturing real estate. |
• | significance of the property to the tenant’s operations and profitability; |
• | lease terms, including length of lease term, scope of landlord responsibilities, if any, and frequency of contractual rental increases; |
• | proposed purchase price, terms and conditions; |
• | historical financial performance of the tenant; |
• | tenant’s leverage and creditworthiness; |
• | a property’s physical location and access; |
• | construction quality and condition; |
• | potential for capital appreciation; |
• | demographics of the area, economic conditions, access to labor and local market conditions; |
• | potential capital reserves required to maintain the property; |
• | potential for the construction of new properties in the area; |
• | evaluation of title and ability to obtain satisfactory title insurance; |
• | evaluation of any reasonable ascertainable risks such as environmental contamination; and |
• | replacement use of the property in the event of loss of existing tenant (limited special use properties). |
• | property surveys and site audits; |
• | building plans and specifications; |
• | soil reports, seismic studies and flood zone studies; |
• | licenses, permits, maps and governmental approvals; |
• | tenant leases and estoppel certificates; |
• | tenant financial statements and information; |
• | historical financial statements and tax statement summaries of the properties; |
• | proof of marketable title, subject to such liens and encumbrances as are acceptable to us; and |
• | liability and title insurance policies. |
• | financial institutions; |
• | insurance companies; |
• | real estate investment trusts; |
• | regulated investment companies; |
• | dealers in securities; |
• | traders in securities that elect to use a mark-to market method of accounting for their securities holdings; |
• | partnerships, other pass-through entities, trusts and estates; |
• | persons who hold our stock on behalf of other persons as nominees; |
• | persons who receive our stock through the exercise of employee stock options or otherwise as compensation; |
• | persons holding our stock as part of a “straddle,” “hedge,” “conversion transaction,” “constructive ownership transaction,” “synthetic security” or other integrated investment; |
• | Subchapter “S” corporations; and, except to the extent discussed below: |
• | tax-exempt organizations; and |
• | foreign investors. |
• | a citizen or resident of the United States; |
• | a corporation (including an entity treated as corporation for U.S. federal income tax purposes) created or organized under the laws of the United States or of a political subdivision thereof (including the District of Columbia); |
• | an estate whose income is subject to U.S. federal income taxation regardless of its source; or |
• | any trust if (1) a U.S. court is able to exercise primary supervision over the administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (2) it has a valid election in place to be treated as a U.S. person. |
• | We will be taxed at regular corporate rates on any undistributed taxable income, including undistributed net capital gains. |
• | If we have net income from prohibited transactions, which are, in general, sales or other dispositions of inventory or property held primarily for sale to customers in the ordinary course of business, other than foreclosure property, such income will be subject to a 100% tax. See “Prohibited Transactions.” |
• | If we should fail to satisfy the 75% gross income test or the 95% gross income test, as discussed below, but nonetheless maintain our qualification as a REIT because we satisfy other requirements, we will be subject to a 100% tax on an amount based on the magnitude of the failure, as adjusted to reflect the profit margin associated with our gross income. |
• | If we elect to treat property that we acquire in connection with a foreclosure of a mortgage loan or certain leasehold terminations as “foreclosure property,” we may thereby avoid the 100% tax on gain from a resale of that property (if the sale would otherwise constitute a prohibited transaction), but the income from the sale or operation of the property may be subject to corporate income tax at the highest applicable rate. |
• | If we should violate the asset tests (other than certain de minimis violations) or other requirements applicable to REITs, as described below, and yet maintain our qualification as a REIT because there is reasonable cause for the failure and other applicable requirements are met, we may be subject to an excise tax. In that case, the amount of the excise tax will be at least $50,000 per failure and, in the case of certain asset test failures, will be determined as the amount of net income generated by the assets in question multiplied by the highest corporate tax rate if that amount exceeds $50,000 per failure. |
• | If we should fail to distribute during each calendar year at least the sum of (a) 85% of our REIT ordinary income for such year; (b) 95% of our REIT capital gain net income for such year; and (c) any undistributed taxable income from prior periods, we would be subject to a nondeductible 4% excise tax on the excess of the required distribution over the sum of (i) the amounts that we actually distributed and (ii) the amounts we retained and upon which we paid income tax at the corporate level. |
• | We may be required to pay monetary penalties to the IRS in certain circumstances, including if we fail to meet record keeping requirements intended to monitor our compliance with rules relating to the composition of a REIT’s stockholders, as described in “ – Requirements for Qualification-General.” |
• | A 100% tax may be imposed on transactions between us and a taxable REIT subsidiary (“TRS”) (as described below) that do not reflect arm’s-length terms. |
• | If we dispose of an asset acquired by us from a C corporation in a transaction in which we took the C corporation’s tax basis in the asset, we may be subject to tax at the highest regular corporate rate on the appreciation inherent in such asset as of the date of acquisition by us. |
• | We will generally be subject to tax on the portion of any excess inclusion income derived from an investment in residual interests in real estate mortgage investment conduits (“REMICs”) or “taxable mortgage pools” to the extent our shares are held in record name by specified tax exempt organizations not subject to tax on unrelated business taxable income (“UBTI”) or non-U.S. sovereign investors. |
• | The earnings of our subsidiaries, including our TRSs (as discussed below), are subject to federal corporate income tax to the extent that such subsidiaries are subchapter C corporations. |
(1) | it is managed by one or more trustees or directors; |
(2) | its beneficial ownership is evidenced by transferable shares, or by transferable certificates of beneficial interest; |
(3) | it would be taxable as a domestic corporation but for its election to be subject to tax as a REIT; |
(4) | it is neither a financial institution nor an insurance company subject to specific provisions of the Internal Revenue Code; |
(5) | its beneficial ownership is held by 100 or more persons; |
(6) | during the last half of each taxable year, not more than 50% in value of its outstanding stock is owned, directly or indirectly, by five or fewer “individuals” (as defined in the Internal Revenue Code to include specified tax-exempt entities); |
(7) | it elects to be taxed as a REIT, or has made such election for a previous taxable year, and satisfies all relevant filing and other administrative requirements that must be met to elect and maintain REIT qualification; and |
(8) | it meets other tests described below, including with respect to the nature of its income and assets. |
(a) | The sum of (i) 90% of our “REIT taxable income,” computed without regard to our net capital gains and the dividends-paid deduction and (ii) 90% of the net income (after tax) if any from foreclosure property, minus |
(b) | the sum of specified items of non-cash income. |
• | income retained by the REIT in the prior taxable year on which the REIT was subject to corporate level income tax (less the amount of tax); |
• | distributions received by the REIT from TRSs or other taxable C corporations; or |
• | income in the prior taxable year from the sales of “built-in gain” property acquired by the REIT from C corporations in carryover basis transactions (less the amount of corporate tax on such income). |
Name | | | Shares of Common Stock Beneficially Owned(2) | | | Automatic Conversion of Class P OP Units to Class C OP Units(3) | | | Automatic Conversion of Class R OP Units to Class C OP Units(4) | | | Percent of Common Stock and OP Units Beneficially Owned(5) |
Directors and Officers(1) | | | | | | | | | ||||
Aaron S. Halfacre(3)(4) | | | 75,059 | | | 66,667 | | | 526,667.5 | | | 5.9% |
Raymond J. Pacini(3)(4) | | | 5,533 | | | 26,715 | | | 83,332.5 | | | 1.0% |
John C. Raney(4) | | | 2,170 | | | — | | | 63,332.5 | | | * |
Adam S. Markman | | | 20,149 | | | — | | | — | | | * |
Curtis B. McWilliams | | | 18,839 | | | — | | | — | | | * |
Thomas H. Nolan, Jr | | | 20,044 | | | — | | | — | | | * |
Kimberly Smith | | | 7,726 | | | — | | | — | | | * |
Connie Tirondola | | | 7,490 | | | — | | | — | | | * |
All directors and executive officers as a group (9 persons) | | | 157,010 | | | 93,382 | | | 673,332.5 | | | 8.1% |
5% Shareholders | | | | | | | | | ||||
First City Investment Group, LLC(6) | | | 1,312,382 | | | — | | | — | | | 14.3% |
* | Less than 1% of the outstanding common stock. |
(1) | The address of each named beneficial owner is 200 S. Virginia Street, Suite 800, Reno, NV 89501. |
(2) | None of the shares of common stock are pledged as security. |
(3) | On December 31, 2019, Mr. Halfacre and Mr. Pacini were granted 40,000 and 16,029 units of Class P limited partnership interest in the Operating Partnership (“Class P OP Units”), respectively, which are vested and will automatically convert on March 31, 2024, into 1.6667 Class C OP Units for each Class P OP Unit, or 66,667 and 26,715 Class C OP Units, respectively. The Class C OP Units are exchangeable for shares of common stock on a 1-for-1 basis, or for cash, as solely determined by the Company. |
(4) | On January 25, 2021, Mr. Halfacre, Mr. Pacini and Mr. Raney were granted 210,667; 33,333; and 25,333 Class R OP Units in the Operating Partnership, respectively, which are vested and will automatically convert on March 31, 2024, into 2.5 Class C OP Units for each Class R OP Unit based on the Company’s achievement of the FFO performance target of $1.05 per diluted share for the year ended December 31, 2023, as described in the Company’s Annual Report on Form 10-K. Upon the automatic conversion of the Class R OP Units, Mr. Halfacre, Mr. Pacini and Mr. Raney will receive 526,667.5; 83,332.5; and 63,332.5 Class C OP Units, respectively. The Class C OP Units are exchangeable for shares of common stock on a 1-for-1 basis, or for cash, as solely determined by the Company. |
(5) | Based on 11,388,543 fully diluted shares of common stock outstanding, which includes 9,172,755 shares of common stock outstanding on March 11, 2024, plus 1,331,549 Class C OP Units at a conversion ratio of 1:1, plus 56,029 Class P OP Units at a conversion ratio of 1:1.6667 and 316,343 Class R OP Units at a conversion ratio of 2.5:1. |
(6) | First City Investment Group, LLC obtained 1,312,382 Class C OP Units from Group of Trophy, LLC through an assignment on February 15, 2024. First City Investment Group, LLC exchanged 656,191 Class C OP Units for Class C Common Stock on February 16, 2024, and continues to hold 656,191 Class C OP Units. Group of Trophy, LLC obtained the 1,312,382 Class C OP Units on January 18, 2022, as partial consideration for the Company’s acquisition of the KIA auto dealership property in Carson, California. |
Name | | | Age | | | Positions |
Aaron S. Halfacre | | | 51 | | | Chief Executive Officer, President and Director |
Adam S. Markman | | | 59 | | | Chairman of the Board and Independent Director |
Raymond J. Pacini | | | 68 | | | Executive Vice President, Chief Financial Officer, Secretary and Treasurer |
John Raney | | | 43 | | | Chief Operating Officer and General Counsel |
Curtis B. McWilliams | | | 68 | | | Independent Director |
Thomas H. Nolan, Jr. | | | 66 | | | Independent Director |
Kimberly Smith | | | 61 | | | Independent Director |
Connie Tirondola | | | 66 | | | Independent Director |
Name and Principal Position | | | Year | | | Salary ($) | | | Bonus ($)(1) | | | Stock Awards ($)(2) | | | Option Awards ($) | | | All Other Compensation ($)(3) | | | Total ($) |
Aaron S. Halfacre Chief Executive Officer and President | | | 2023 | | | 250,000 | | | — | | | — | | | — | | | 120,700 | | | 370,700 |
| 2022 | | | 250,000 | | | — | | | — | | | — | | | 15,750 | | | 265,750 | ||
| 2021 | | | 250,000 | | | — | | | 3,046,406 | | | — | | | — | | | 3,296,406 | ||
Raymond J. Pacini Executive Vice President, Chief Financial Officer, Secretary and Treasurer | | | 2023 | | | 275,000 | | | 250,000 | | | — | | | — | | | 20,700 | | | 545,700 |
| 2022 | | | 275,000 | | | 200,000 | | | — | | | — | | | 19,050 | | | 494,050 | ||
| 2021 | | | 275,000 | | | 200,000 | | | 594,994 | | | — | | | — | | | 1,069,994 |
(1) | Mr. Pacini’s cash bonus for 2023 was paid in October 2023 and February 2024, his cash bonus for 2022 was paid in January and February 2023, and his cash bonus for 2021 was paid in March 2022. |
(2) | See the discussion above regarding the grant of Class R OP Units on January 25, 2021, which were valued based on an illiquid security with a $23.03 net asset value (“NAV”) per share as of the grant date. A discount of 15% was subtracted from the value of the Class R OP Units as of the grant date to reflect the illiquidity of the Class R OP Units. Because the Company achieved the performance hurdle for FFO of $1.05 per share for the year ended December 31, 2023, the Class R OP Units have vested and will automatically convert into Class C OP Units on March 31, 2024, at the maximum conversion ratio of 2.5 Class C OP Units for each one Class R OP Unit. The value of such Class R OP Units as of the grant date was $10,309,780 for Mr. Halfacre and $1,631,275 for Mr. Pacini. The Class C OP Units are exchangeable for shares of common stock on a one for one basis, or cash, as solely determined by the Company. |
(3) | All other compensation includes (i) a relocation allowance of $100,000 paid to Mr. Halfacre during 2023, (ii) the Company’s matching 401(k) contributions of 6%, up to the maximum of $330,000, of an employee’s salary, bonus and relocation allowance, and (iii) a cell phone stipend of $75 per month for both Mr. Halfacre and Mr. Pacini which commenced in March 2022. |
| | | | Stock Awards | |||||
Name | | | Grant Date | | | Number of shares or units of stock that have not vested (1) | | | Market value of shares or units of stock that have not vested(1) |
Aaron S. Halfacre | | | 12/31/2019 | | | 40,000(2) | | | $993,334(2) |
| | 1/25/2021 | | | 210,667(3) | | | $7,847,346(3) | |
Raymond J. Pacini | | | 12/31/2019 | | | 16,029(2) | | | $398,054(2) |
| | 1/25/2021 | | | 33,333(3) | | | $1,241,654(3) |
(1) | All of the units vest on March 31, 2024. |
(2) | See the discussion above regarding the grant of Class P OP Units. The market value of the Class P OP Units which were granted on December 31, 2019, reflects the Company’s common stock closing price on the NYSE of $14.90 per share on December 29, 2023, the last trading day of 2023, and reflects the conversion ratio of 1.6667 Class C OP Units for each one Class P OP Unit. The Class C OP Units are exchangeable for shares of common stock on a one for one basis, or cash, as solely determined by the Company. |
(3) | See the discussion above regarding the grant of Class R OP Units. The market value above reflects the Company’s common stock closing price on the NYSE of $14.90 per share on December 29, 2023, the last trading day of 2023, and reflects the conversion ratio of 2.5 Class C OP Units for each one Class R OP Unit since the Company achieved the performance hurdles for FFO of $1.05 per share for the year ended December 31, 2023. The Class C OP Units are exchangeable for shares of common stock on a one for one basis, or cash, as solely determined by the Company. |
Year(1) | | | Summary Compensation Table Total for PEO ($)(2) | | | Compensation Actually Paid to PEO ($)(3) | | | Summary Compensation Table Total for Non-PEO Named Executive Officers ($)(2) | | | Compensation Actually Paid to Non-PEO Named Executive Officers ($)(3) | | | Value of Initial Fixed $100 Investment Based on Total Shareholder Return(4) | | | Company Reported Net Income (Loss) ($) | | | Company Selected Performance Measure: AFFO ($)(5) |
2023 | | | 370,700 | | | 5,883,375 | | | 545,700 | | | 1,464,832 | | | $135.38 | | | (8,696,261) | | | 14,672,441 |
2022 | | | 265,750 | | | (1,381,612) | | | 494,050 | | | 137,365 | | | $51.52 | | | (4,511,318) | | | 16,634,150 |
2021 | | | 3,296,406 | | | 3,137,313 | | | 1,069,994 | | | 1,029,302 | | | N/A | | | (435,505) | | | 11,449,814 |
(1) | Our principal executive officer (“PEO”) for the years ended December 31, 2023, 2022 and 2021 was Aaron S. Halfacre, our Chief Executive Officer and President. Our non-PEO named executive officer for the years ended December 31, 2023, 2022 and 2021 was Raymond J. Pacini, our Executive Vice President, Chief Financial Officer, Secretary and Treasurer. |
(2) | Amounts reported in this column represent the total compensation reported in the Summary Compensation Table for the applicable year in which Mr. Halfacre served as our PEO and Mr. Pacini served as our non-PEO named executive officer, as applicable. |
(3) | To calculate compensation actually paid, adjustments were made to the amounts reported in the Summary Compensation Table for the applicable year. A reconciliation of the adjustments for Mr. Halfacre and Mr. Pacini is set forth following the footnotes to this table. |
(4) | The cumulative total shareholder return for 2022 is based on the period from February 11, 2022, the date our common stock became listed on a national securities exchange, through December 31, 2022. The cumulative total shareholder return for 2023 is based on the period from December 31, 2022, through December 31, 2023. |
(5) | A description of our use of AFFO as a performance measure is set forth below under “– Relationships Between Compensation Actually Paid and Financial Performance Measures.” |
Year | | | Summary Compensation Table Total ($) | | | Minus Grant Date Fair Value of Stock Awards Granted in Fiscal Year ($)(1) | | | Plus Fair Value at Fiscal Year-End of Outstanding and Unvested Stock Awards Granted in Fiscal Year ($)(2) | | | Plus/(Minus) Change in Fair Value of Outstanding and Unvested Stock Awards Granted in Prior Fiscal Years ($)(3) | | | Plus Fair Value at Vesting of Stock Awards Granted in Fiscal Year that Vested During Fiscal Year ($) | | | Plus/(Minus) Change in Fair Value as of Vesting Date of Stock Awards Granted in Prior Years for which Applicable Vesting Conditions Were Satisfied During the Fiscal Year ($) | | | Minus Fair Value as of Prior Fiscal Year-End of Stock Awards Granted in Prior Fiscal Year that Failed to Meet Applicable Conditions During Fiscal Year ($) | | | Plus Dividends or Other Earnings Paid on Stock Awards Not Otherwise Included in Total Compensation for the Fiscal Year ($) | | | Equals Compensation Actually Paid ($) |
Mr. Halfacre | |||||||||||||||||||||||||||
2023 | | | 370,700 | | | — | | | — | | | 5,512,675 | | | — | | | — | | | — | | | — | | | 5,883,375 |
2022 | | | 265,750 | | | — | | | — | | | (1,647,362) | | | — | | | — | | | — | | | — | | | (1,381,612) |
2021 | | | 3,296,406 | | | (3,046,406) | | | 3,061,766 | | | (174,453) | | | — | | | — | | | — | | | — | | | 3,137,313 |
Mr. Pacini | |||||||||||||||||||||||||||
2023 | | | 545,700 | | | — | | | — | | | 919,132 | | | | | — | | | — | | | — | | | 1,464,832 | |
2022 | | | 494,050 | | | — | | | — | | | (356,685) | | | — | | | — | | | — | | | — | | | 137,365 |
2021 | | | 1,069,994 | | | (594,994) | | | 597,994 | | | (43,692) | | | — | | | — | | | — | | | — | | | 1,029,302 |
(1) | Represents the grant date fair value of the 170,667 and 33,333 Class R OP Units granted to Messrs. Halfacre and Pacini, respectively, on January 25, 2021. See the discussion above regarding the grant of the Class R OP Units. |
(2) | For 2022, represents the fair value as of March 31, 2022, of the 170,667 and 33,333 Class R OP Units granted to Messrs. Halfacre and |
(3) | For 2023, represents the change in fair value from December 31, 2022, to December 31, 2023, of (i) 210,667 Class R OP Units and 40,000 Class P OP Units granted to Mr. Halfacre in prior years and (ii) 33,333 Class R OP Units and 16,029 Class P OP Units granted to Mr. Pacini in prior years. The fair value as of December 31, 2023, reflects the Company’s common stock closing price on the NYSE of $14.90 per share on December 29, 2022, the last trading day of 2023. For 2022, represents the change in fair value from March 31, 2022, to December 31, 2022, of (i) 210,667 Class R OP Units and 40,000 Class P OP Units granted to Mr. Halfacre in prior years and (ii) 33,333 Class R OP Units and 16,029 Class P OP Units granted to Mr. Pacini in prior years. The fair value as of December 31, 2022, reflects the Company’s common stock closing price on the NYSE of $12.00 per share on December 30, 2022, the last trading day of 2022. For 2021, represents the change in fair value from December 31, 2020, to March 31, 2022, of (i) 40,000 Class R OP Units and 40,000 Class P OP Units granted to Mr. Halfacre in prior years and (ii) 16,029 Class P OP Units granted to Mr. Pacini in prior years. The fair value as of March 31, 2022, reflects the Company’s common stock closing price on the NYSE of $17.94 on March 31, 2022. The fair value was measured as of March 31, 2022, instead of December 31, 2021, because the Company’s common stock was not listed on a national securities exchange as of December 31, 2021. The fair value as of December 31, 2020, reflects the NAV per share of the Company’s common stock of $23.03 as of December 31, 2020, discounted by 15% to reflect the illiquidity of the Class R OP Units and Class P OP Units. See the discussion above regarding the grant of the Class R OP Units and the grant of the Class P OP Units. |
Name | | | Fees Earned or Paid in Cash | | | Stock Awards | | | All Other Compensation | | | Total |
Asma Ishaq(1) | | | $20,000 | | | $25,000 | | | $— | | | $45,000 |
Adam S. Markman | | | $70,000 | | | $60,000 | | | $— | | | $130,000 |
Curtis B. McWilliams | | | $40,000 | | | $60,000 | | | $— | | | $100,000 |
Thomas H. Nolan, Jr. | | | $40,000 | | | $60,000 | | | $— | | | $100,000 |
Kimberly Smith | | | $40,000 | | | $50,000 | | | $— | | | $90,000 |
Connie Tirondola | | | $40,000 | | | $50,000 | | | $— | | | $90,000 |
(1) | Ms. Ishaq resigned from the Board effective August 8, 2023. |
• | the act or omission of the director or officer was material to the matter giving rise to the proceeding and (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty; |
• | the director or officer actually received an improper personal benefit in money, property or services; or |
• | in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
• | a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by us; and |
• | a written undertaking by or on behalf of the director or officer to repay the amount paid or reimbursed by us if it is ultimately determined that the director or officer did not meet the standard of conduct. |
• | any present or former director or officer who is made or threatened to be made a party to, or witness in, a proceeding by reason of his or her service in that capacity; or |
• | any individual who, while a director or officer of the Company and at our request, serves or has served as a director, officer, partner, member, manager or trustee of another corporation, REIT, limited liability company, partnership, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity. |
(a) | Our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 7, 2024. |
(b) | Our Quarterly Report on Form 10-Q for the quarter ended September 30, 2023, filed with the SEC on November 13, 2023, solely with respect to the information under the caption “Unaudited Pro Forma Condensed Consolidated Statement of Operations For the Six Months Ended June 30, 2023.” |
Item 31. | Other Expenses of Issuance and Distribution |
SEC Registration Fee | | | $10,910(1) |
Printing and Postage Expenses | | | 5,000 |
Legal Fees and Expenses | | | 30,000 |
Accounting Fees and Expenses | | | 60,000 |
Total expenses | | | $105,910 |
(1) | All applicable registration fees were paid at the time of the initial Form S-3 (Registration No. 333-252321). |
Item 33. | Recent Sales of Unregistered Securities |
Item 34. | Indemnification of Directors and Officers |
• | the act or omission of the director or officer was material to the matter giving rise to the proceeding and (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty; |
• | the director or officer actually received an improper personal benefit in money, property or services; or |
• | in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
• | a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by us; and |
• | a written undertaking by or on behalf of the director or officer to repay the amount paid or reimbursed by us if it is ultimately determined that the director or officer did not meet the standard of conduct. |
• | any present or former director or officer who is made or threatened to be made a party to, or witness in, a proceeding by reason of his or her service in that capacity; or |
• | any individual who, while a director or officer of our company and at our request, serves or has served as a director, officer, partner, member, manager or trustee of another corporation, REIT, limited liability company, partnership, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity. |
Item 36. | Financial Statements and Exhibits |
• | See Index to Consolidated Financial Statements at page F-1 of our Annual Report on Form 10-K for the year ended December 31, 2023; |
• | The unaudited pro forma condensed consolidated statements of operations contained in our Quarterly report on Form 10-Q for the quarter ended September 30, 2023; and |
Exhibit | | | Description |
| | Articles of Amendment and Restatement of Modiv Inc. (incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K (File No. 000-55776) filed with the Securities and Exchange Commission on July 8, 2021) | |
| | Articles of Amendment to the Articles of Amendment and Restatement of Modiv Inc. changing its name to Modiv Industrial, Inc. (incorporated by reference to Exhibit 3.4 to our Quarterly Report on Form 10-Q (File No. 001-40814) filed with the Securities and Exchange Commission on August 14, 2023 | |
| | Second Amended and Restated Bylaws of Modiv Inc., adopted on March 9, 2023 (incorporated by reference to Exhibit 3.2 to our Annual Report on Form 10-K (File No. 001-40814) filed with the Securities and Exchange Commission on March 13, 2023) | |
| | Articles Supplementary designating 7.375% Series A Cumulative Redeemable Perpetual Preferred Stock, $0.001 par value per share (incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K (File No. 001-40814) filed with the Securities and Exchange Commission on September 17, 2021) | |
| | Second Amended and Restated Distribution Reinvestment Plan (Class C Common Stock) (included as Appendix A to the prospectus) | |
| | Opinion of Venable LLP as to legality of securities (incorporated by reference to Exhibit 5.1 to our Registration Statement on Form S-3 (File No. 333-252321) filed with the Securities and Exchange Commission on January 22, 2021) | |
| | Opinion of Morris, Manning & Martin, LLP |
Exhibit | | | Description |
| | Third Amended and Restated Limited Partnership Agreement of Modiv Operating Partnership, LP, dated February 1, 2021 (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K (File No. 000-55776) filed with the Securities and Exchange Commission of February 1, 2021) | |
| | First Amendment to Third Amended and Restated Limited Partnership Agreement of Modiv Operating Partnership, LP (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K (File No. 001-40814) filed with the Securities and Exchange Commission on September 17, 2021) | |
| | Second Amendment to Third Amended and Restated Limited Partnership Agreement of Modiv Operating Partnership, LP, dated December 21, 2022 (incorporated by reference to Exhibit 10.3 to our Annual Report on Form 10-K (File No. 001-40814) filed with the Securities and Exchange Commission on March 13, 2023) | |
| | Third Amendment to Third Amended and Restated Limited Partnership Agreement of Modiv Operating Partnership, LP, dated December 29, 2023 (incorporated by reference to Exhibit 10.4 to our Annual Report on Form 10-K (File No. 001-40814) filed with the Securities and Exchange Commission on March 7, 2024) | |
| | Fourth Amendment to Third Amended and Restated Limited Partnership Agreement of Modiv Operating Partnership, LP, dated January 23, 2024 (incorporated by reference to Exhibit 10.5 to our Annual Report on Form 10-K (File No. 001-40814) filed with the Securities and Exchange Commission on March 7, 2024) | |
| | Restricted Units Award Agreement dated as of December 31, 2019 between RW Holdings NNN REIT Operating Partnership, LP, and Aaron S. Halfacre (incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K (File No. 000-55776) filed with the Securities and Exchange Commission on December 31, 2019) | |
| | Restricted Units Award Agreement dated as of December 31, 2019 between RW Holdings NNN REIT Operating Partnership, LP, and The Raymond J. Pacini Trust u/a/d 5/3/01, Raymond J. Pacini, Trustee (incorporated by reference to Exhibit 10.3 to our Current Report on Form 8-K (File No. 000-55776) filed with the Securities and Exchange Commission on December 31, 2019) | |
| | Restricted Units Award Agreement dated as of January 25, 2021 between Modiv Operating Partnership, LP and Aaron S. Halfacre (incorporated by reference to Exhibit 10.15 to our Annual Report on Form 10-K (File No. 000-55776) filed with the Securities and Exchange Commission on March 31, 2021) | |
| | Restricted Units Award Agreement dated as of January 25, 2021 between Modiv Operating Partnership, LP and The Raymond J. Pacini Trust u/a/d 5/3/01, Raymond J. Pacini, Trustee (incorporated by reference to Exhibit 10.16 to our Annual Report on Form 10-K (File No. 000-55776) filed with the Securities and Exchange Commission on March 31, 2021) | |
| | Form of Director and Officer Indemnification Agreement (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K (File No. 000-55776) filed with the Securities and Exchange Commission on August 2, 2021) | |
| | Contribution Agreement between Trophy of Carson Real Estate LLC and Modiv Operating Partnership, LP dated January 13, 2022 (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K (File No. 001-40814) filed with the Securities and Exchange Commission on January 20, 2022) | |
| | First Amendment to Contribution Agreement Between Trophy of Carson Real Estate LLC and Modiv Operating Partnership, LP dated March 22, 2022 (incorporated by reference to Exhibit 10.18 to our Annual Report on Form 10-K (File No. 001-40814) filed with the Securities and Exchange Commission on March 23, 2022) | |
| | Kia – Carson, CA Lease Agreement as of January 18, 2022, by and between MDV Trophy Carson CA LLC and Trophy of Carson LLC for the property located at 22020 Recreation Rd., Carson, California (incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K (File No. 001-40814) filed with the Securities and Exchange Commission on January 20, 2022) | |
| | Credit Agreement dated as of January 18, 2022 by and among Modiv Operating Partnership, LP, as the borrower, KeyBank National Association, the other lenders which are parties to the agreement, and other lenders that may become parties to the agreement, KeyBank National Association, as the agent, BMO Capital Markets, Truist Bank and The Huntington Bank, as co-syndication agents, and |
Exhibit | | | Description |
| | KeyBanc Capital Markets Inc., BMO Capital Markets, Truist Securities, Inc. and The Huntington Bank, as joint-lead arrangers (incorporated by reference to Exhibit 10.3 to our Current Report on Form 8-K (File No. 001-40814) filed with the Securities and Exchange Commission on January 20, 2022) | |
| | First Amendment to Credit Agreement dated October 21, 2022 between Modiv Operating Partnership, LP, as the borrower, KeyBank National Association, the other lenders which are parties to the agreement, and other lenders that may become parties to the agreement, KeyBank National Association, as the agent, First Financial Bank, Truist Bank and The Huntington Bank, as co-syndication agents, and KeyBanc Capital Markets Inc., First Financial Bank, Truist Securities, Inc. and The Huntington National Bank, as joint-lead arrangers for the expanded Credit Facility (incorporated by reference to Exhibit 10.13 to our Annual Report on Form 10-K (File No. 001-40814) filed with the Securities and Exchange Commission on March 13, 2023) | |
| | Second Amendment to Credit Agreement dated December 20, 2022 between Modiv Operating Partnership, LP, as the borrower, KeyBank National Association, the other lenders which are parties to the agreement, and other lenders that may become parties to the agreement, KeyBank National Association, as the agent, First Financial Bank, Truist Bank and The Huntington Bank, as co-syndication agents, and KeyBanc Capital Markets Inc., First Financial Bank, Truist Securities, Inc. and The Huntington National Bank, as joint-lead arrangers for the expanded Credit Facility (incorporated by reference to Exhibit 10.14 to our Annual Report on Form 10-K (File No. 001-40814) filed with the Securities and Exchange Commission on March 13, 2023) | |
| | Unconditional Guaranty of Payment and Performance of Modiv Operating Partnership, LP under the Credit Agreement dated January 18, 2022 with KeyBank and other lenders by Modiv Inc. and certain subsidiary guarantors (incorporated by reference to Exhibit 10.20 to Amendment No. 1 to our Registration Statement on Form S-11 (File No. 333-261529) filed with the Securities and Exchange Commission on February 10, 2022) | |
| | Agreement of Purchase and Sale (incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q (File No. 001-40814) filed with the Securities and Exchange Commission on November 13, 2023) | |
| | First Amendment to Agreement of Purchase and Sale (incorporated by reference to Exhibit 10.1 to our Quarterly Report on Form 8-K (File No. 001-40814) filed with the Securities and Exchange Commission on January 2, 2024) | |
| | Letter from Baker Tilly US, LLP, dated March 30, 2023 (incorporated by reference to Exhibit 16.1 to our Quarterly Report on Form 8-K (File No. 001-40814) filed with the Securities and Exchange Commission on March 31, 2023) | |
| | Subsidiaries of Modiv Industrial, Inc. (incorporated by reference to Exhibit 21.1 to our Annual Report on Form 10-K (File No. 001-40814) filed with the Securities and Exchange Commission on March 7, 2024) | |
| | Consent of Grant Thornton LLP | |
| | Consent of Baker Tilly US, LLP | |
23.3* | | | Consent of Morris, Manning & Martin, LLP (included in Exhibit 8.1) |
| | Consent of Venable LLP (included in Exhibit 5.1) | |
| | Power of Attorney for Aaron S. Halfacre, Raymond J. Pacini, Sandra G. Sciutto, Adam S. Markman, Curtis B. McWilliams and Thomas H. Nolan, Jr. (incorporated by reference to Exhibit 24.1 to our Registration Statement on Form S-3 (File No. 333-252321) filed with the Securities and Exchange Commission on January 22, 2021) | |
| | Power of Attorney for Kimberly Smith (incorporated by reference to Exhibit 24.3 to our Registration Statement on Form S-3 (File No. 333-252321) filed with the Securities and Exchange Commission on February 15, 2022) | |
| | Power of Attorney for Connie Tirondola (incorporated by reference to Exhibit 24.4 to our Registration Statement on Form S-3 (File No. 333-252321) filed with the Securities and Exchange Commission on February 15, 2022) | |
101* | | | XBRL |
107 | | | Filing Fee Table |
* | Filed herewith. |
** | Furnished herewith. In accordance with Item 601(b)(32) of Regulation S-K, this Exhibit is not deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities of that section. Such certifications will not be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, except to the extent that the registrant specifically incorporates it by reference. |
+ | Indicates management or compensatory plan. |
Item 37. | Undertakings |
(a) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by section 10(a)(3) of the Securities Act. |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that clauses (i) and (ii) above and this clause (iii) do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those clauses is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
(b) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment will be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time will be deemed to be the initial bona fide offering thereof. |
(c) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(d) | That, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of the registration statement relating to the offering, other than registration statements relying on Rule 430B or other than a prospectus filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
(e) | That, for the purpose of determining liability of the registrant under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of any employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(f) | To deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. |
By: | | | /s/ AARON S. HALFACRE | | | |
| | Aaron S. Halfacre Chief Executive Officer, President and Director (principal executive officer) | | |
Signature | | | Title | | | Date |
/s/ Aaron S. Halfacre | | | Chief Executive Officer, President and Director (Principal Executive Officer) | | | March 12, 2024 |
Aaron S. Halfacre | | |||||
| | | | |||
/s/ Raymond J. Pacini | | | Executive Vice President, Chief Financial Officer, Secretary and Treasurer (Principal Financial Officer) | | | March 12, 2024 |
Raymond J. Pacini | | |||||
| | | | |||
/s/ Sandra G. Sciutto | | | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | | | March 12, 2024 |
Sandra G. Sciutto | | |||||
| | | | |||
* | | | Chairman of the Board and Independent Director | | | March 12, 2024 |
Adam S. Markman | | |||||
| | | | |||
* | | | Independent Director | | | March 12, 2024 |
Curtis B. McWilliams | | |||||
| | | | |||
* | | | Independent Director | | | March 12, 2024 |
Thomas H. Nolan, Jr. | | |||||
| | | | |||
* | | | Independent Director | | | March 12, 2024 |
Kimberly Smith | | |||||
| | | | |||
* | | | Independent Director | | | March 12, 2024 |
Connie Tirondola | | |||||
| | | |
* By: | | | /s/ Raymond J. Pacini | | | |
| | Raymond J. Pacini | | |
|
Most sincerely,
|
|
/s/ MORRIS, MANNING & MARTIN, LLP
|
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