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Item 1.01
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Entry into a Material Definitive Agreement.
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The Board of Directors (the “Board”) of Barnwell
Industries, Inc., a Delaware corporation (the “Company”), has declared a dividend of one right (a “Right”) for each of the Company’s issued and outstanding shares of common stock, par value $0.50 per share (“Common Stock”). The dividend will be paid to the stockholders of record at the close of business on October 27, 2022 (the “Record Date”).
Each Right entitles the registered holder, subject to the terms of the Rights Agreement (as defined below), to purchase from the Company one share of Common Stock at a price of $14.00 (the “Purchase Price”), subject to certain adjustments. The description and terms of the Rights are set forth in the Tax Benefits Preservation Plan, dated as of October 17, 2022 (the “Rights Agreement”), by and between the Company and Broadridge Corporate Issuer Solutions, Inc., as rights agent (the “Rights Agent”).
The Company has generated substantial net operating loss carryforwards and certain other tax attributes (collectively, the “Tax Benefits”), which could potentially be used in certain circumstances to reduce its future income tax obligations. The Company’s ability to use its Tax Benefits would be
substantially limited if it were to experience an “ownership change,” as defined in Section 382 of the Internal Revenue Code of 1986, as amended (the “Tax
Code”). In general, the Company will experience an ownership change if the percentage of the Company’s stock owned by one or more of its “5-percent shareholders,” as defined in Section 382 of the Tax Code, increases by more than 50
percentage points over their lowest ownership percentage over a three-year period (or, if a shorter period, since the Company’s last ownership change).
The purpose of the Rights Agreement is to reduce the likelihood that any changes in the Company’s investor base would cause the Company to experience an ownership
change under Section 382 of the Tax Code, limiting the Company’s future use of its Tax Benefits and, in turn, significantly impairing the value of such Tax Benefits. In furtherance of preserving the Company’s valuable Tax Benefits, the Rights
Agreement is designed to discourage any (i) person or group of persons from acquiring beneficial ownership of more than 4.95% of Common Stock and (ii) existing stockholder currently beneficially holding 4.95% or more of Common Stock from acquiring
additional shares of Common Stock.
The Rights will not be exercisable until the earlier to occur of (i) the close of business on the tenth business day after a public announcement or filing that a
person or group of affiliated or associated persons has become an “Acquiring Person,” which is defined as a person or group of affiliated or
associated persons that, at any time after the date of the Rights Agreement, has acquired, or obtained the right to acquire, beneficial ownership of 4.95% or more of the outstanding shares of Common Stock, subject to certain exceptions or (ii) the
close of business on the tenth business day after the commencement of, or announcement of an intention to commence, a tender offer or exchange offer the consummation of which would result in any person becoming an Acquiring Person (the earlier of
such dates being called the “Distribution Date”).
With respect to certificates representing shares of Common Stock outstanding as of the Record Date, until the Distribution Date, the Rights will be evidenced by
such certificates for shares of Common Stock registered in the names of the holders thereof, and not by separate Rights Certificates (as defined below). With respect to book entry shares of Common Stock outstanding as of the Record Date, until the
Distribution Date, the Rights will be evidenced by the balances indicated in the book entry account system of the transfer agent for the Common Stock. Until the earlier of the Distribution Date and the Expiration Date (as defined below), the transfer
of any shares of Common Stock outstanding on the Record Date will also constitute the transfer of the Rights associated with such shares of Common Stock. As soon as practicable after the Distribution Date, separate certificates evidencing the Rights
(“Rights Certificates”) will be mailed to holders of record of the Common Stock as of the close of business on the Distribution Date, and such
Rights Certificates alone will evidence the Rights.
The Rights, which are not exercisable until the Distribution Date, will expire at or prior to the earliest of (i) the close of business on October 17, 2025, or
such later date as may be established by the Board prior to the expiration of the Rights as long as the extension is submitted to the stockholders of the Company for ratification at the Company’s next annual meeting of stockholders succeeding such extension; (ii) the time at which the Rights are redeemed pursuant to the Rights Agreement; (iii) the time at which the Rights are exchanged
pursuant to the Rights Agreement; (iv) the time at which the Rights are terminated upon the occurrence of certain mergers or other transactions approved in advance by the Board; and (v) the close of business on the date set by the Board following a
determination by the Board that (x) the Rights Agreement is no longer necessary or desirable for the preservation of the Tax Benefits or (y) no Tax Benefits are available to be carried forward or are otherwise available (the earliest of (i), (ii),
(iii), (iv) and (v) is referred to as the “Expiration Date”).
The Purchase Price payable, and the number of shares of Common Stock or other securities or property issuable, upon exercise of the Rights are each subject to
adjustment from time to time to prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Common Stock, (ii) upon the grant to holders of the Common Stock of certain rights or warrants to
subscribe for or purchase Common Stock or convertible securities at less than the then-current market price of the Common Stock or (iii) upon the distribution to holders of the Common Stock of evidences of indebtedness or assets (excluding regular
cash dividends or dividends) or of subscription rights or warrants (other than those referred to above). The number of outstanding Rights and the number of shares of Common Stock issuable upon exercise of each Right are also subject to adjustment in
the event of a stock split, reverse stock split, stock dividends and other similar transactions involving the Common Stock.
In the event that any person or group of affiliated or associated persons becomes an Acquiring Person, each holder of a Right, other than the Rights beneficially
owned by the Acquiring Person, affiliates and associates of the Acquiring Person and certain transferees thereof (which will automatically become null and void), will thereafter have the right to receive upon exercise of a Right that number of shares
of Common Stock having a market value of two times the Purchase Price.
In the event that, after a person or a group of affiliated or associated persons has become an Acquiring Person, the Company is acquired in a merger or other
business combination transaction, or 50% or more of the Company’s assets or earning power are sold, proper provision will be made so that each holder of a Right will thereafter have the right to receive, upon the exercise thereof at the then-current
purchase price of the Right, that number of shares of common stock of the acquiring company having a market value at the time of that transaction equal to two times the Purchase Price.
With certain exceptions, no adjustment in the Purchase Price will be required unless such adjustment would require an increase or decrease of at least one percent
(1%) in the Purchase Price. No fractional shares of Common Stock will be issued and, in lieu thereof, an adjustment in cash will be made based on the market price of the Common Stock on the last trading day prior to the date of exercise.
At any time after any person or group of affiliated or associated persons becomes an Acquiring Person and prior to the acquisition of beneficial ownership by such
Acquiring Person of 50% or more of the outstanding shares of Common Stock, the Board, at its option, may exchange the Rights (other than Rights owned by such person or group of affiliated or associated persons which will have become void), in whole
or in part, for shares of Common Stock, at an exchange ratio of three shares of Common Stock per outstanding Right (subject to adjustment).
In connection with any exercise or exchange of the Rights, no holder of a Right will be entitled to receive shares of Common Stock if receipt of such shares would
result in such holder, together with such holder’s affiliates and associates, beneficially owning more than 4.95% of the then-outstanding Common Stock (such shares, the “Excess Shares”) and the Board determines that such holder’s receipt of Excess Shares would jeopardize or endanger the value or availability of the Tax Benefits or the Board otherwise determines that such holder’s
receipt of Excess Shares is not in the best interests of the Company. In lieu of such Excess Shares, such holder will only be entitled to receive cash or a note or other evidence of indebtedness with a principal amount equal to the then-current
market price of the Common Stock multiplied by the number of Excess Shares that would otherwise have been issuable.
At any time before the Distribution Date, the Board may redeem the Rights in whole, but not in part, at a price of $0.001 per Right (subject to certain
adjustments) (the “Redemption Price”). The redemption of the Rights may be made effective at such time, on such basis and with such conditions as
the Board in its sole discretion may establish.
Immediately upon the action of the Board electing to redeem or exchange the Rights, the Company shall make announcement thereof, and upon such election, the right
to exercise the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption Price.
Until a Right is exercised or exchanged, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
For so long as the Rights are redeemable, the Company may from time to time in its sole discretion supplement or amend the Rights Agreement in any respect without
the approval of any holders of Rights, and the Rights Agent shall, if the Company so directs, execute such supplement or amendment. At any time when the Rights are not redeemable, the Company may amend or supplement the Rights Agreement without the
approval of any holders of Rights, including, without limitation, in order to (i) cure any ambiguity, (ii) correct or supplement any provision of the Rights Agreement that may be defective or inconsistent with any other provisions of the Rights
Agreement, (iii) shorten or lengthen any time period in the Rights Agreement or (iv) otherwise change, amend or supplement any provision that the Company may deem necessary or desirable. However, from and after the time when the Rights are no longer
redeemable, the Rights Agreement may not be amended or supplemented in any manner that would, among other things, adversely affect the interests of the holders of Rights (other than holders of Rights that have become null and void).
The Rights Agreement is attached hereto as Exhibit 4.1 and is incorporated herein by reference. The description of the Rights Agreement herein does not purport to
be complete and is qualified in its entirety by reference to Exhibit 4.1.