Cogdell Spencer Inc. Cogdell Spencer LP 4401 Barclay Downs Drive Suite 300 Charlotte, North Carolina 28209-4670
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[DATE]
Ladies and Gentlemen:
Reference is made to the Agreement and Plan of Merger (the “Merger Agreement”), dated as of
January 23, 2008, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., a Maryland corporation (the “Parent”), ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇, a Delaware limited partnership subsidiary of Parent (the “Operating Partnership”),
Goldenboy Acquisition Corp., a Wisconsin corporation and a wholly-owned subsidiary of the Operating
Partnership (“Merger Sub”), MEA Holdings, Inc., a Wisconsin corporation (the “Holding Company”),
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Associates, Inc., a Wisconsin corporation (“MEA”), and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Development, LLC, a Wisconsin limited liability company, and ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇, in their capacity as the Seller Representative. Capitalized terms used but not defined
herein have the meanings ascribed to them in the Merger Agreement.
As contemplated by the Merger Agreement, by execution of this Agreement, the Contributor named
herein has agreed, in lieu of receiving the Merger Consideration payable in respect of such
Contributor’s Common Shares, to receive, subject to the terms and conditions of this Agreement, OP
Units (as defined in the partnership agreement (the “Partnership Agreement”)) of the Operating
Partnership in exchange for such Contributor’s Common Shares (the “Contributions”). It is intended
for U.S. federal income tax purposes that the Contribution be treated as a Contribution by the
Contributor of the Contributor’s Common Shares to the Operating Partnership in exchange for
partnership interests under section 721 of the Internal Revenue Code of 1986, as amended (the
“Code”). The parties agree to file all tax returns, filings and all related items consistent with
such position, unless to the extent otherwise required by law.
1. Contribution and Subscription. The Contributor hereby agrees, subject to the
terms and conditions hereof, to contribute to the Operating Partnership the Common Shares shown on
Appendix A in exchange for which the Contributor hereby subscribes for and agrees to receive (i) at
the Closing, the number of OP Units equal to the amount of the Merger Consideration otherwise
payable to the Contributor in respect of such Contributor’s Common Shares at the Closing divided by
$17.01 and (ii) on each date (each a “Distribution Date”) that some or all of the Merger
Consideration is payable to Holding Company shareholders under the Merger Agreement (including out
of any of the separate funds established thereunder), the number of OP Units equal to the amount of
the Merger Consideration otherwise payable to the Contributor in respect of such Contributor’s
Common Shares on such Distribution Date divided by $17.01. At the Closing, the Contributor shall
become a limited partner in the Operating Partnership and shall be bound by the terms and
provisions of the Partnership Agreement and shall take all actions and execute all documents to
effectuate the foregoing. By executing this Agreement, the Contributor hereby consents to and
votes in favor of the Merger and the other transactions contemplated by the Merger Agreement.
2. Other Deliverables. On the date of this Agreement, the Contributor has delivered
to Parent or the Operating Partnership, as applicable, (a) a duly completed and executed Form W-9
and FIRPTA Affidavit in the form of Exhibit A hereto; and (b) two duly completed and executed
signature pages to this Agreement. As provided in paragraph 7 hereof, by executing this Agreement,
the
Item 2-1
Contributor is granting a power-of-attorney to the Parent to execute, on behalf of the
undersigned at the Closing, the Registration Rights Agreement, in the form attached hereto as
Exhibit B (the “Registration Rights Agreement”), the Lock-Up Agreement, in the form attached
hereto as Exhibit C (the “Lock-Up Agreement”), the Partnership Agreement, and all other documents
reasonably necessary to complete the transactions contemplated by the Merger Agreement and this
Agreement. The Registration Rights Agreement, the Lock-Up Agreement and this Agreement are
collectively referred to in this Agreement as the “Subscription Documents.”
3. Alternative Units. Notwithstanding anything to the contrary contained in paragraph
1 above, the Operating Partnership reserves the right, in its discretion, to substitute for one or
more of the OP Units otherwise issuable to the Contributor as provided in paragraph 1, an
equivalent number of a separate class of units of limited partnership interest in the Operating
Partnership (the “Alternative Units” and together with the OP Units, the “Offered Units”), which
will be substantially similar to the OP Units, except that, upon issuance, the Alternative Units
will not provide for redemption rights similar to those provided under Section 8.6 of the
Partnership Agreement for OP Units, unless such redemption is first approved by a vote of Parent
common stockholders. The terms of the Alternative Units will provide that Parent shall make
reasonable efforts to obtain a stockholder vote to approve the redemption (“Parent Stockholder
Approval”), beginning with using all reasonable efforts to present a proposal to permit the
redemption of the Alternative Units to Parent’s common stockholders at the first annual meeting of
stockholders immediately subsequent to the initial issuance of the Alternative Units. If the
Parent Stockholder Approval is not obtained, Parent shall submit such approval at each subsequent
regularly scheduled annual meeting of stockholders for as long as the Alternative Units remain
outstanding. In the event that Parent Stockholder Approval has not been obtained prior to June 30,
2008, ordinary distributions per Alternative Unit payable after June 30, 2008 shall be increased to
105% of the ordinary distributions per OP Unit payable after June 30, 2008. In the event that the
Parent Stockholder Approval has not been obtained prior to June 30, 2009, ordinary distributions
per Alternative Unit payable after June 30, 2009 shall be increased to 110% of the ordinary
distributions per OP Unit payable after June 30, 2009. In the event that the Parent Stockholder
Approval has not been obtained prior to June 30, 2010, ordinary distributions per Alternative Unit
payable after June 30, 2010 shall be increased to 115% of the ordinary distributions per OP Unit
payable after June 30, 2010. If the Parent Stockholder Approval has been obtained, future ordinary
distributions per Alternative Unit shall equal the ordinary distributions per OP Unit and each
holder of Alternative Units will have the right at any time after the one-year anniversary of the
closing of the Merger, at such holder’s option, to exercise redemption rights with regard to the
Alternative Units substantially in accordance with those provided in Section 8.6 of the Partnership
Agreement, subject to any lock-up agreement then in effect for such holder. If the Parent
Stockholder Approval has been obtained, at the Operating Partnership’s option, the Operating
Partnership may exchange an OP Unit for each Alternative Unit outstanding.
4. Representations, Warranties and Covenants of the Contributor. The Contributor
hereby acknowledges, represents and warrants to, and covenants and agrees with Parent and the
Operating Partnership as follows:
4.1 Authorization. Such Contributor has full power and authority to enter into the
Subscription Documents and to consummate the transactions contemplated by the Subscription
Documents. The execution and delivery of the Subscription Documents by such Contributor and the
consummation by such Contributor of the transactions contemplated by the Subscription Documents
have been duly authorized by all necessary action on the part of such Contributor and will not
constitute or result in a breach or default under, or conflict with or violate, any agreement or
other undertaking, to which such Contributor is a party or by which such Contributor is bound or
with any judgment, decree, statute, order, rule or regulation applicable to such Contributor or
such Contributor’s assets, and, if the Contributor is not an individual, will not violate any
provisions of the organizational or other formation or
Item 2-2
governing documents of such Contributor. The Subscription Documents have been duly executed
and delivered by such Contributor and constitute valid and legally binding obligations of such
Contributor enforceable against such Contributor in accordance with and subject to their respective
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors’ rights and general principles of equity. The signatures on the Subscription Documents
are genuine, and the signatory, if such Contributor is an individual, has legal competence and
capacity to execute the same, or, if such Contributor is not an individual, the signatory has been
duly authorized to execute the same on behalf of such Contributor.
4.2 Purchase for Investment. Such Contributor is acquiring Offered Units and any
shares of common stock in Parent that may be issued upon the redemption of such Offered Units (such
shares together with the Offered Units being herein referred to as the “Offered Securities”) for
such Contributor’s own account (or if such Contributor is a trustee, for a trust account) for
investment only, and not with a view to or for sale in connection with any distribution of such
Offered Securities. Such Contributor hereby agrees that such Contributor shall not, directly or
indirectly, transfer all or any part of such Offered Securities (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of all or any part of the Offered Securities),
except in accordance with the registration provisions of the Securities Act of 1933, as amended
(the “Securities Act”), and the regulations thereunder or an exemption from such registration
provisions, with any applicable state or non-U.S. securities laws, and with the terms of this
Agreement. Such Contributor understands that such Contributor must bear the economic risk of an
investment in the Offered Securities for an indefinite period of time because, among other reasons,
the offering and sale of such Offered Securities have not been registered under the Securities Act
and, therefore, such Offered Securities cannot be resold unless such resale is subsequently
registered under the Securities Act or an exemption from such registration is available. Such
Contributor also understands that sales or transfers of such Offered Securities are further
restricted by the provisions of the Parent’s charter or the organizational agreements of the
Operating Partnership, and may be restricted by other applicable securities laws. If at any time
the Offered Securities are evidenced by certificates or other documents, each such certificate or
other document shall contain a legend stating that (i) such Offered Securities (1) have not been
registered under the Securities Act or the securities laws of any state; (2) have been issued
pursuant to a claim of exemption from the registration provisions of the Securities Act and any
state securities law which may be applicable; and (3) may not be sold, transferred or assigned
without compliance with the registration provisions of the Securities Act and the regulations
thereunder and any other applicable U.S. federal, state or non-U.S. securities laws or compliance
with applicable exemptions therefrom; (ii) sale, transfer or assignment of such Offered Securities
is further subject to restrictions contained in the organizational documents of the issuer of such
securities and such Offered Securities may not be sold, transferred or assigned unless and to the
extent permitted by, and in accordance with, the provisions of the organizational documents of such
issuer; and (iii) sale, transfer or assignment of such Offered Securities is subject to
restrictions contained in the Lock-Up Agreement being executed by such Contributor on the date of
this Agreement.
4.3 Information. Such Contributor has carefully reviewed the Confidential Offering
Memorandum that has been provided to Contributor and the Subscription Documents. Such Contributor
has been provided an opportunity to ask questions of, and such Contributor has received answers
thereto satisfactory to such Contributor from, Parent or its representatives regarding the terms
and conditions of the offering of the Offered Securities, and such Contributor has obtained all
additional information requested by such Contributor of the Operating Partnership or Parent and
their representatives to verify the accuracy of all information furnished to such Contributor
regarding the offering of such Offered Securities. Such Contributor represents and warrants that
such Contributor is not relying on the Operating Partnership or Parent or any of their
subsidiaries, affiliates or any of their respective representatives or agents with respect to any
tax or other economic considerations involved in connection with the subscription for the Offered
Securities. Such Contributor represents and warrants that such
Item 2-3
Contributor has been advised to consult with his, her or its tax, legal and other advisors
regarding the subscription and its effects, the tax consequences of making and not making a
subscription hereunder, and has obtained, in such Contributor’s judgment, sufficient information to
evaluate the merits and risks of a subscription and investment hereunder.
4.4 Economic and Liquidity Risk. Such Contributor has such knowledge and experience
in financial and business matters such that such Contributor is capable of evaluating the merits
and risks in making a subscription for the Offered Securities, and that such Contributor has
evaluated the risks of investing in the Offered Securities and has determined that they are a
suitable investment for such Contributor. Such Contributor represents and warrants that such
Contributor understands that an investment in the Offered Securities is a speculative investment
that involves very significant risks and tax uncertainties and that such Contributor is prepared to
bear the economic, tax and other risks of an investment in the Offered Securities for an indefinite
period of time, and is able to withstand a total loss of such Contributors investment in the
Offered Securities.
4.5 Eligibility; Accredited Investor Status. Such Contributor represents and warrants
that such Contributor is an “accredited investor” as defined in Regulation D under the Securities
Act (“Accredited Investor”). Such Contributor will, upon request, execute and/or deliver any
additional documents deemed by Parent to be necessary or desirable to confirm such Contributor’s
Accredited Investor status.
4.6 Ownership of the Contributor’s Common Shares. Such Contributor has, or on the
Closing Date will have, good and marketable title to the Contributor’s Common Shares listed on
Appendix A and such Common Shares will, on the date they are contributed to the Operating
Partnership, be free and clear of all pledges, claims, liens, restrictions, charges, encumbrances,
security interests, conditional sales agreements and other obligations of any kind or nature. Such
Contributor will, upon request, execute, deliver and/or provide any additional documents deemed by
the Parent to be necessary or desirable to confirm the foregoing.
4.7 Contributor Information. Such Contributor represents and warrants that Appendix A
correctly sets forth, for such Contributor, (a) the principal residence of such Contributor if such
Contributor is a natural person, (b) the place of business (or, if there is more than one place of
business, the chief executive office) of such Contributor if such Contributor is a corporation,
partnership, limited liability company, business trust or other entity (an “Entity”), (c) the state
of incorporation, organization or formation of such Contributor, (d) the information specified in
clauses (a) and (b) of this paragraph 4.7 as to each trustee of such Contributor if such
Contributor is a trust (other than a business trust) and such trustee is a natural person and (e)
the information specified in clauses (b) and (c) of this paragraph 4.7 as to each trustee of such
Contributor if such Contributor is a trust (other than a business trust) and such trustee is an
Entity.
4.8 Status as Foreign Person. Such Contributor is not a foreign person and is not
owned directly or indirectly, in whole or in part, by a foreign person as determined for purposes
of the Code, including for purposes of Section 897(h)(4) of the Code and the regulations
promulgated thereunder.
4.9 Continuing Efforts. Subject to the terms and conditions herein provided, such
Contributor covenants and agrees to use its best efforts to take, or cause to be taken, all actions
and do, or cause to be done, all things necessary, proper and/or appropriate to consummate and make
effective the transactions contemplated by this Agreement.
Item 2-4
4.10 No Brokers or Finders. Such Contributor has not entered into any agreement and
is not otherwise liable or responsible to pay any brokers’ or finders’ fees or expenses to any
person or Entity with respect to this Agreement or the purchase and issuance of any Offered
Securities contemplated hereby, except for any such person or Entity the fees and expenses for
which such Contributor shall be solely responsible for and pay.
4.11 Waive of Dissenters’ Rights. Such Contributor expressly and unconditionally
waives any right to seek appraisal rights (as defined in Section 1.5 of the Merger Agreement) in
respect of the Merger.
The representations, warranties, covenants and agreements contained in this Agreement shall
survive each Distribution Date.
5. Conditions to the Consummation of the Transaction.
A. Conditions to the Obligations of the Operating Partnership and Parent. The
obligations of the Operating Partnership and Parent to accept the subscription from, and to issue
Offered Units to, the Contributor pursuant to this Agreement are subject to the fulfillment of the
following conditions, any one or more of which may be waived by Parent:
1 Representations, Warranties and Covenants. The representations and warranties of
the Contributor contained in this Agreement shall be true, correct and complete in all material
respects on and as of the first Distribution Date under this Agreement with the same force and
effect as though made on and as of such first Distribution Date unless expressly stated herein to
be made as of a specified date. The Contributor shall have performed in all material respects all
obligations required to be performed by him, her or it under this Agreement at or prior to such
first Distribution Date.
2 Closing Documents. The Contributor shall have duly executed and delivered to the
Parent and the Operating Partnership on or prior to the Closing Date all documents that are
reasonably requested by the Parent to effectuate the transactions contemplated hereby.
3 Closing of the Merger. The Closing under the Merger Agreement shall have occurred
or shall be imminent.
B. Conditions to the Obligations of the Contributor. The obligations of the
Contributor to receive the Offered Units pursuant this Agreement are subject to the fulfillment of
the following conditions, any one or more of which may be waived by Contributor:
1. Closing Documents. The Operating Partnership shall have duly executed and
delivered on or prior to the Closing Date this Agreement and Contributor shall become a party to
the Registration Rights Agreement.
2. Closing of the Merger. The Closing under the Merger Agreement shall have occurred
or shall be imminent.
6. Indemnity. The Contributor hereby agrees to indemnify and defend Parent and the
Operating Partnership and their affiliates against and to hold them harmless from any and all
damage, loss, liability and expense incurred or suffered by any of them arising out of or based
upon the inaccuracy of any representation or warranty or breach of any agreement made or to be
performed by such Contributor pursuant to this Agreement or any of the documents or instruments
contemplated hereby or referred to herein.
Item 2-5
7. Power-of-attorney. By executing this Agreement, the undersigned Contributor hereby
irrevocably constitutes and appoints Parent (or a substitute appointed by Parent) as his, her or
its attorney-in-fact and agent with full power of substitution to take any and all actions and
execute any of the following agreements on such Contributor’s behalf and in such Contributor’s
name: Lock-Up Agreement, Registration Rights Agreement, stock powers and other instruments of
assignment, the Partnership Agreement, and any other documents related to the consummation of the
transactions contemplated hereby on such Contributor’s behalf and in such Contributor’s name, as
may be deemed by Parent as necessary or desirable to effectuate such transactions. The undersigned
hereby grants to each attorney-in-fact full power and authority to do and perform each and every
act and thing which may be necessary, or convenient, in connection with the foregoing, as fully, to
all intents and purposes, as the undersigned might or could do if personally present, hereby
ratifying and confirming all that such attorney-in-fact shall lawfully do or cause to be done by
authority hereof. Such power-of-attorney shall be deemed to be coupled with an interest and shall
be irrevocable and shall survive the death, disability or dissolution of the Contributor.
8. No Representations as to Tax Treatment. Parent and the Operating Partnership make
no representations regarding the tax consequences to the Contributor of the Contribution or any
other transactions contemplated herein.
9. Termination. This Agreement shall be terminable upon the consent of all parties
hereto and shall terminate automatically if the Merger Agreement has been terminated.
10. General Provisions.
10.1 Modification. Neither this Agreement nor any provisions hereof shall be waived,
modified, discharged or terminated, except by an instrument in writing signed by the party against
whom any waiver, modification, discharge or termination is sought.
10.2 Notices. All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally or by facsimile
transmission or mailed (first class postage prepaid) to the parties at the following addresses or
facsimile numbers:
| If to the Contributor: | To the address indicated for such Contributor on the signature page to this Agreement. | |||
| If to Parent, the Parent or The Operating Partnership: | c/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Advisers Inc. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ |
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| ▇▇▇▇▇ ▇▇▇ | ||||
| ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ | ||||
| Tel: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Fax: (▇▇▇)▇▇▇-▇▇▇▇ | ||||
| Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| with a copy to: | ||||
| ▇▇▇▇▇▇▇▇ Chance US LLP | ||||
| ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ | ||||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||||
| Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
Item 2-6
All such notices, requests and other communications will (a) if delivered personally to the address
as provided in this Section 10.2, be deemed given upon delivery; (b) if delivered by facsimile
transmission to the facsimile number as provided in this Section 10.2, be deemed given upon
receipt; and (c) if delivered by mail in the manner described above to the address as provided in
this Section 10.2, be deemed given upon receipt (in each case regardless of whether such notice,
request or other communication is received by any other person to whom a copy of such notice is to
be delivered pursuant to this Section 10.2). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto in accordance with this Section 10.2.
10.3 Binding Effect. Except as otherwise provided herein, this Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators,
successors, legal representatives and permitted assigns. If the Contributor is itself more than
one person, the obligations of such Contributors shall be joint and several and the
acknowledgements, representations, warranties, covenants and agreements herein contained shall be
deemed to be made by and be binding upon each such person and his or her heirs, executors,
administrators, successors, legal representatives and permitted assigns.
10.4 Entire Agreement; Conflicting Provisions. The Subscription Documents contain the
entire agreement of the parties with respect to this subscription, and there are no
representations, warranties, covenants or other agreements except as stated or referred to herein
or therein.
10.5 Assignability. This Agreement is not transferable or assignable by any party
hereto. This Agreement shall be for the benefit of the parties hereto.
10.6 Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware and applicable to contracts made and to be performed
entirely within such State.
10.7 Counterparts. This Agreement may be executed through the use of separate
signature pages or in counterparts, and each of such counterparts shall, for all purposes,
constitute one agreement binding on the parties hereto, notwithstanding that the parties hereto are
not signatories to the same counterpart.
10.8 Further Assurances. The Contributor will, from time to time, execute and deliver
to the Parent all such other and further instruments and documents and take or cause to be taken
all such other and further action as Parent or the Operating Partnership may reasonably request in
order to effect the transactions contemplated by this Agreement. Notwithstanding the foregoing,
Parent or the Operating Partnership may request from the Contributor such additional information as
it may deem necessary to evaluate the eligibility of such Contributor to acquire Offered
Securities, and may request from time to time such information as it may deem necessary to
determine the eligibility of such Contributor to hold Offered Securities or to enable Parent or the
Operating Partnership to determine the Contributor’s compliance with applicable regulatory
requirements or tax status, and such Contributor shall provide such information as may reasonably
be requested.
10.9 Severability. If any term or provision of this Agreement shall to any extent be
invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted
by law. Upon the determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to
effect their original intent as
Item 2-7
closely as possible in an acceptable manner to the end that transactions contemplated hereby
are fulfilled to the extent possible.
10.10 Specific Performance. The parties hereto acknowledge that there would be no
adequate remedy at law if any party fails to perform any of its obligations hereunder, and
accordingly agree that each party, in addition to any other remedy to which it may be entitled at
law or in equity, shall be entitled to compel specific performance of the obligations of any other
party under this agreement in accordance with the terms and conditions of this agreement.
10.11 Expenses. Each of the parties hereto agrees to pay the expenses incurred by it
in connection with the negotiation, preparation, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, including the fees and expenses of counsel to
such party.
[Remainder of this page is intentionally left blank.]
Item 2-8
IN WITNESS WHEREOF, the parties have executed this Agreement as of this ___day of
, 2008.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.:
By: |
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Name:
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Title:
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President and CEO |
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇,
By: CS Business Trust I, its General Partner
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., its Sole Beneficial Owner
By: |
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Name:
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Title:
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President and CEO |
Item 2-9
CONTRIBUTOR:
By: |
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Name:
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Item 2-10
Exhibit A
FORM W-9 AND FIRPTA AFFIDAVIT
SUBSTITUTE Form W-9
|
Name: | ||||||||||||
| Business name (if different): | |||||||||||||
| Circle appropriate: | Individual/sole proprietor | Corporation | Partnership | ||||||||||
| Limited Liability Company | Other: | ||||||||||||
| If Limited Liability Company: |
Disregarded Entity | Corporation | Partnership | ||||||||||
| Address: | |||||||||||||
| Part 1 — PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY SIGNING AND DATING BELOW | Social Security Number(s) or Employer Identification Number |
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| Department of The Treasury Internal Revenue Service | 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 backup withholding, or (b) I have not been notified by the Internal Revenue Service (“IRS”) that I am subject to backup withholding as a result of failure to report all interest or dividends, or 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). | ||||||||||||
| Payer’s Request for Taxpayer Identification Number (TIN) | Certification Instructions — You must cross out item (2) above if you have been notified by the IRS that you are subject to backup withholding because you have failed to report all interest and dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS that you are no longer subject to backup withholding, do not cross out item (2). | Part 3 — Awaiting TIN o | |||||||||||
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
(Applicable only if the box in Part 3 above is checked)
(Applicable only if the box in Part 3 above is checked)
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed
or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or
Social Security Administration office, or (b) I intend to mail or deliver an application in the near future. I understand that if
I do not provide a taxpayer identification number within sixty days, 28 percent of all reportable payments made to me thereafter
will be withheld until I provide a taxpayer identification number.
DATE: ___, 2008
|
DATE: ___, 2008 | |||
Item 3-1
FIRPTA AFFIDAVIT — CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that (a) a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person and (b) a Company must withhold tax with respect to certain amounts that
are allocable to or would otherwise be distributed to a foreign person that
owns an interest in such Company. To inform ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc. that
withholding of tax is not required upon this disposition of a U.S. real
property interest, the undersigned hereby certifies the following as of the
date hereof and as of the date of issuance of any OP Units or Common Stock to
such Contributor:
1. The Contributor, if an individual, is not a nonresident alien
for purposes of U.S. income taxation, and if not an individual, is
not a foreign corporation, foreign partnership, foreign trust, or
foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. The Contributor, if not an individual, is not a disregarded
entity as defined in Section 1.1445-2(b)(2)(iii) of the Income Tax
Regulations promulgated under the Internal Revenue Code.
3. The Contributor’s Social Security Number (for individuals) or
Employer Identification Number (for non-individuals) is: ; and
4. The Contributor’s address is: .
In addition, if I am (or, if this document is being signed on behalf of an
Contributor that is not an individual, such Contributor is) electing to receive
Subscribed OP Units or Common Stock, I agree to inform the Parent if I (or, if
this document is being signed on behalf of an Contributor that is not an
individual, such Contributor) become(s) a foreign person at any time during the
three year period immediately following the date of this notice.
I understand that this certification may be disclosed to the Internal Revenue
Service by the transferee and that any false statement I have made here could
be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this certification
and to the best of my knowledge and belief it is true, correct and complete,
and, if this document is being signed on behalf of an Contributor that is not
an individual, I further declare that I have authority to sign this document on
behalf of such Contributor.
| Signature | Signature, if held Jointly | |||||||
Title:
|
Title: | |||||||
| Date: ___, 2008 | Date: ____, 2008 | |||||||
Item 3-2
Exhibit B
Registration Rights Agreement
Registration Rights Agreement
Exhibit C
Lock-Up Agreement
Lock-Up Agreement
Appendix A
Contributor Information
Contributor Information
| (a) | The principal residence of such Contributor if such Contributor is a natural person is as
follows: |
|
| (b) | The place of business (or, if there is more than one place of business, the chief executive
office) of such Contributor if such Contributor is a corporation, partnership, limited
liability company, business trust or other entity (an “Entity”) is as follows: |
|
| (c) | The state of incorporation, organization or formation of such Contributor is as follows: |
|
| (d) | The information specified in clauses (a) and (b) of this Appendix as to each trustee of such
Contributor if such Contributor is a trust (other than a business trust) and such trustee is a
natural person is as follows: |
|
| (e) | The information specified in clauses (b) and (c) of this Appendix A as to each trustee of
such Contributor if such Contributor is a trust (other than a business trust) and such trustee
is an Entity is as follows: |
|
| (f) | The number of Common Shares to be contributed by the Contributor is . |
Schedule 1
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▇▇▇▇▇ Capital Partners III Limited Partnership
BCP III Affiliates Fund Limited Partnership
BCP III Special Affiliates Fund Limited Partnership
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ Capital Partners III Limited Partnership
BCP III Affiliates Fund Limited Partnership
BCP III Special Affiliates Fund Limited Partnership
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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