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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/01/21 Barnwell Industries Inc. 8-K:1,8,9 1/27/21 12:366K Edgarfilings Ltd. |
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i Delaware
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i 72-0496921
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(State or other jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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i Common Stock, $0.50 Par Value
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i BRN
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NYSE American
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i ☐
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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i ☐
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Director Nominations. Barnwell agreed that the Board
would nominate each of Bradley M. Tirpak, Philip J. McPherson, Douglas N. Woodrum, Robert J. Inglima, Jr., Kenneth S. Grossman, Alexander C. Kinzler and Peter J. O’Malley to stand for election to the Board at the 2021 Annual Meeting,
with each to serve a term expiring at the Company’s 2022 annual meeting of stockholders (the “2022 Annual Meeting”). The MRMP Stockholders agreed to withdraw their notice of nominees to be elected to the Board at the 2021 Annual
Meeting and to vote their shares of Barnwell common stock in favor of the election of the designated slate.
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Standstill. The MRMP Stockholders agreed to observe
normal and customary standstill provisions during the period (the “Standstill Period”) beginning on January 27, 2021 until the date ten business days prior to the deadline for the submission of stockholder nominations for directors for
the Company’s 2023 annual meeting of stockholders, provided that the Company achieves a positive pre-tax profit, as defined in the Cooperation Agreement, for its fiscal year 2021 and
meets certain other conditions set forth in the Cooperation Agreement. If the Company does not achieve a positive pre-tax profit for its fiscal year 2021 (or if the Company notifies the MRMP Stockholders that it does not intend to
nominate any of Messrs. Tirpak, McPherson or Woodrum (or replacement nominees satisfactory to the MRMP Stockholders) for election to the Board at the 2022 Annual Meeting, or if the Company proposes to expand
the Board above seven members), then the Standstill Period will terminate upon the date that is ten business days prior to the deadline for the submission of stockholder nominations for directors for the 2022 Annual Meeting. The
standstill provisions provide, among other things, that the MRMP Stockholders will not (except as otherwise permitted by the Cooperation Agreement):
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o
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make, participate in or propose any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation,
dissolution or other similar extraordinary transaction involving the Company or any of its subsidiaries or its or their securities or assets;
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o
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make any private proposal, alone or in concert with others, that would reasonably be expected to require the Company or the MRMP Stockholders to make public disclosure (of any
kind);
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o
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engage in any solicitation of proxies or become a “participant” in a contested “solicitation” of proxies, each as defined under the Securities Exchange Act of 1934, as amended,
(the “Exchange Act”) with respect to securities of the Company;
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o
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seek any additional representation on the Board, seek the removal of any member of the Board or encourage any person to submit nominees in furtherance of a contested election;
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o
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make any proposal (i) relating to any change in the number or term of directors or the filling of any vacancies on the Board; (ii) relating to any material change in the
capitalization or dividend policy of the Company; (iii) relating to any material change in the Company’s management, compensation or corporate structure; (iv) relating to any waiver, amendment or modification to the Company’s charter or
bylaws; (v) causing a class of securities of the Company to be delisted; or (vi) causing a class of equity securities of the Company to become eligible for termination of registration; or
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o
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form, join or act in concert with any other person or group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act with respect to any securities of the
Company.
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Voting Matters. The MRMP Stockholders agreed that,
during the Standstill Period, they would (a) be present for quorum purposes at any annual or special meeting of the Company’s stockholders and (b) vote all their shares of common stock of the Company beneficially owned by each MRMP
Stockholder (i) in favor of the slate of directors recommended by the Board, (ii) against the removal of any of the Company’s directors and (iii) in accordance with the Board’s recommendation with respect to any other matter brought to
a vote of the Company’s stockholders (unless both Institutional Shareholder Services Inc. and Glass Lewis & Co., LLC have recommended otherwise with respect to such matter and other than with respect to any publicly announced
proposals relating to a merger, acquisition, disposition of all or substantially all of the assets of the Company or other similar business combination transaction, in each case voted on at a meeting of the Company’s stockholders).
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Ownership Limit. Each MRMP Stockholder agreed that,
during the Standstill Period, neither it, nor its respective affiliates and controlled associates, shall acquire, or offer, seek or agree to acquire, or direct any third party in the acquisition of, any common stock of the Company or
any securities convertible into such common stock or rights or options in relation thereof, without the consent of the Board, except for acquisitions by Mr. Ned L. Sherwood and his affiliates so long as their beneficial ownership, taken
together, shall not exceed, in the aggregate, 20% of the outstanding shares of Barnwell stock that is entitled to vote at any meeting of the Company’s stockholders. (Concurrently with the execution of the Cooperation Agreement,
Alexander C. Kinzler and the Company entered into a separate letter agreement, pursuant to which, during the Standstill Period, Mr. Kinzler and his affiliates are subject to the same limitations on beneficial ownership of Barnwell’s
voting stock as those that apply to Mr. Sherwood and his affiliates under the Cooperation Agreement.)
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Expense Reimbursement. The Company agreed to
reimburse the MRMP Stockholders up to $300,000 for their reasonable, documented out-of-pocket fees and expenses in connection with their election contest at the 2020 annual meeting of stockholders and the negotiation of the Cooperation
Agreement.
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Termination of Company Post-Retirement Medical Plan.
Barnwell agreed that the Board will take appropriate action, on or before March 31, 2021, to effect the termination of the Company’s Post-Retirement Medical Plan in compliance with its terms and conditions.
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Chairman of the Board. Barnwell agreed that the
first regular meeting of the Board following the 2021 Annual Meeting, the Board shall appoint one of Mr. McPherson, Mr. O’Malley or Mr. Inglima as Chairman of the Board.
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Equity Offerings. In the event that Barnwell raises
capital through an equity offering during the Standstill Period, Mr. Sherwood and his affiliates will be entitled to participate in such offering and acquire securities in an amount equal to their pro rata percentage ownership of the
outstanding shares of common stock of the Company.
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Board Size. During the Standstill Period, Barnwell
agreed that it will not expand the size of the Board above seven members and shall not establish or maintain an executive committee or another committee with similar powers of the Board without each of Messrs. Tirpak, McPherson and
Woodrum being appointed as a member of such committee.
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Mutual Non-Disparagement. Subject to customary
exceptions, the parties to the Cooperation Agreement agreed to observe normal and customary non-disparagement provisions.
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Item 8.01
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Other Events.
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Exhibit No.
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Description
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10.1
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Cooperation and Support Agreement, dated as of January 27, 2021, by and among Barnwell Industries, Inc., MRMP-Managers LLC, the Ned L. Sherwood Revocable Trust, Bradley M. Tirpak
and Ned L. Sherwood
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99.1
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BARNWELL INDUSTRIES, INC.
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By:
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Name:
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Title:
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Executive Vice President and Chief Financial Officer
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Exhibit No.
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Description
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Cooperation and Support Agreement, dated as of January 27, 2021, by and among Barnwell Industries, Inc., MRMP-Managers LLC, the Ned L. Sherwood Revocable Trust, Bradley M. Tirpak
and Ned L. Sherwood
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This ‘8-K’ Filing | Date | Other Filings | ||
---|---|---|---|---|
3/31/21 | 10-Q | |||
Filed on: | 2/1/21 | DEFA14A, SC 13D/A | ||
1/28/21 | DEFA14A, SC 13D/A | |||
For Period end: | 1/27/21 | 10-K/A | ||
List all Filings |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 12/18/23 Barnwell Industries Inc. 10-K 9/30/23 113:15M 12/29/22 Barnwell Industries Inc. 10-K 9/30/22 108:16M 3/16/21 Barnwell Industries Inc. S-3 4:523K Broadridge Fin’l So… Inc |