As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 3/16/21  Barnwell Industries Inc.          S-3                    4:523K                                   Edgarfilings Ltd.

Document/Exhibit                   Description                      Pages   Size 

 1: S-3         Registration Statement - Securities for a           HTML    428K 
                Transaction                                                      
 2: EX-5.1      Opinion of Counsel re: Legality                     HTML     10K 
 3: EX-23.1     Consent of Expert or Counsel                        HTML      5K 
 4: EX-23.2     Consent of Expert or Counsel                        HTML      5K 

Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ]

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [ ]

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company and an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

The base prospectus immediately follows this explanatory note. The specific terms of any offering of Common Stock pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus.

The sales agreement prospectus immediately follows the base prospectus. The $7,398,672 of shares of Common Stock that may be offered, issued and sold under the sales agreement prospectus is included in the $25,000,000 of shares of Common Stock that may be offered, issued and sold by us under the base prospectus (and, in each case, are subject to a maximum equal to one-third of our public float as limited by General Instruction I.B.6. of SEC Form S-3, so long as our public float remains under $75.0 million). Upon termination of the sales agreement, any portion of the $7,398,672 included in the sales agreement prospectus that has not been sold pursuant to the sales agreement will be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus supplement, and if no shares are sold under the sales agreement, the full $25,000,000 of shares of Common Stock may be sold in other offerings pursuant to the base prospectus and a corresponding prospectus supplement subject to any applicable limitations set forth herein and therein.

We may offer shares of our Common Stock from time to time.

The aggregate initial offering price of the shares of our Common Stock that we offer will not exceed $25,000,000. We will offer the shares of our Common Stock in amounts, at prices and on terms to be determined at the time of the offering.

Our Common Stock is quoted on the NYSE American under the symbol “BRN.” The last reported sale price of our Common Stock on March 13, 2021 was $3.10 per share.

As of March 15, 2021, the aggregate market value of our outstanding Common Stock held by non-affiliates was $22,196,021.76 based upon 8,277,160 shares of outstanding common stock, of which 3,853,476 shares were held by non-affiliates, and the last reported sale price of our common stock of $5.76 per share on January 28, 2021. Pursuant to General Instruction I.B.6. of Form S-3, in no event will we sell shares pursuant to this prospectus having a value exceeding more than one-third of our public float in any 12-month period so long as our public float remains below $75,000,000. In the event that subsequent to the date of this prospectus the aggregate market value of our outstanding common stock held by non-affiliates equals or exceeds $75,000,000, such one-third limitation on sales shall not apply to sales subsequently made pursuant to this prospectus. As of the date of this prospectus, we have not sold any securities pursuant to General Instruction I.B.6 of Form S-3 during the 12 calendar month period that ends on and includes the date hereof.

We will provide the specific terms of the offering in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest. This prospectus may not be used to offer and sell shares of our Common Stock unless accompanied by a prospectus supplement.

As of March 15, 2021, the aggregate market value of our outstanding Common Stock held by non-affiliates was $22,196,021.76 based upon 8,277,160 shares of outstanding common stock, of which 3,853,476 shares were held by non-affiliates, and the last reported sale price of our common stock of $5.76 per share on January 28, 2021. Pursuant to General Instruction I.B.6. of Form S-3, in no event will we sell shares pursuant to this prospectus having a value exceeding more than one-third of our public float in any 12-month period so long as our public float remains below $75,000,000.  In the event that subsequent to the date of this prospectus the aggregate market value of our outstanding common stock held by non-affiliates equals or exceeds $75,000,000, such one-third limitation on sales shall not apply to sales subsequently made pursuant to this prospectus. As of the date of this prospectus, we have not sold any securities pursuant to General Instruction I.B.6 of Form S-3 during the 12 calendar month period that ends on and includes the date hereof.

Investing in shares of our Common Stock involves significant risks that are described in the “Risk Factors” section beginning on page B-5 of this prospectus.

This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the Commission or the SEC, utilizing a “shelf” registration process. Under this shelf registration process, we may sell shares of our Common Stock in one or more offerings up to a total offering price of $25,000,000. This prospectus provides you with a general description of shares of Common Stock we may offer. Each time we sell shares of Common Stock, we will provide a prospectus supplement that will contain specific information about the terms of the offering. This prospectus, together with applicable prospectus supplements, any information incorporated by reference, and any related free writing prospectuses we file with the Commission, includes all material information relating to these offerings and the shares of Common Stock. We may also add, update or change in the prospectus supplement any of the information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus, including without limitation, a discussion of any risk factors or other special considerations that apply to these offerings or shares of Common Stock or the specific plan of distribution. If there is any inconsistency between the information in this prospectus and a prospectus supplement or information incorporated by reference having a later date, you should rely on the information in that prospectus supplement or incorporated information having a later date. We urge you to read carefully this prospectus, any applicable prospectus supplement and any related free writing prospectus that we have authorized for use in connection with this offering, together with the information incorporated herein by reference as described under the heading “Incorporation of Certain Documents By Reference” and the additional information described under the heading “Where You Can Find More Information,” before buying any of the shares of Common Stock being offered.

You should rely only on the information we have provided or incorporated by reference in this prospectus, any applicable prospectus supplement and any related free writing prospectus. We have not authorized anyone to provide you with different information. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus.

The registration statement containing this prospectus, including exhibits to the registration statement, provides additional information about us and the securities offered under this prospectus and any prospectus supplement. We have filed and plan to continue to file other documents with the Commission that contain information about us and our business. Also, we will file legal documents that relate to the securities offered by this prospectus as exhibits to the reports that we file with the Commission. The registration statement and other reports can be read at the Commission website or at the Commission offices mentioned under the heading “Where You Can Find More Information.”

This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under “Where You Can Find More Information.”

As used in this prospectus, unless otherwise indicated, “we,” “our,” “us,” “Company” or similar terms refer collectively to Barnwell Industries, Inc. and its subsidiaries on a consolidated basis.

Barnwell was founded in 1956 in Shreveport, Louisiana as a Delaware corporation and has been based in Honolulu, Hawaii since 1980, where our investment in land and contract drilling business segments operate.  Since Barnwell’s founding as an oil and gas development company, we have built a diversified business portfolio and currently operate in the following three principal business segments:

Our mission and purpose are to utilize our state-of-the-art technologies, extensive experience and wide industry connections to continue to find wells for the production of oil, and, in so doing, drive demand for our products and services, and to capitalize on other business opportunities that complement our oil and natural gas segment.

Since 2014, we have focused on streamlining our operations by divesting our mature natural gas and heavy oil properties while significantly investing in prospects in Canada.  We now acquire and develop crude oil and natural gas assets in the province of Alberta, Canada via two corporate entities, Barnwell of Canada and Octavian Oil.  In addition, in 2013 we entered into various partnerships that have interests in land in Hawaii.  As the land is sold or developed into single-family and multi-family residential properties, we have rights to receive payments and distributions.  Our contract drilling segment also drills water and water monitoring wells of varying depths in Hawaii, installs and repairs water pumping systems, and is the distributor for Floway pumps and equipment in the state of Hawaii.

Following our 2020 annual meeting of stockholders, three individuals who had been nominated by stockholders were elected to join our Board of Directors and three long-time members of our Board retired.

We believe that our recent efforts over the past few years, as well as the changes to the Board, have strengthened our company.

Our executive offices are located at 1100 Alakea Street, Suite 2900, Honolulu, Hawaii 96813 and our telephone number is (808) 531-8400. Our website address is www.brninc.com. The information on our website is not part of this prospectus. We have included our website address as a factual reference and do not intend it to be active link to our website.

The information contained in this prospectus, our filings with the SEC and our public releases include “forward-looking statements” within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).  Forward-looking statements are subject to certain risks, trends and uncertainties that could cause actual results to differ materially from those projected. Among those risks, trends and uncertainties are:

These forward-looking statements are identified by their use of terms and phrases such as “expect,” “estimate,” “project,” “plan,” “believe,” “achievable,” “anticipate” and similar terms and phrases. Although we believe that the expectations reflected in these forward-looking statements are reasonable, they do involve certain assumptions, risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including but not limited to the risks and uncertainties discussed in  the section entitled “Risk Factors” included in this prospectus and in the documents that we include in or incorporate by reference into this prospectus, including our Annual Report on Form 10-K, as amended by our Annual Report on Form 10-K/A Amendment No. 1, for the fiscal year ended September 30, 2020 and our subsequent SEC filings.

All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements in this section and elsewhere in this prospectus and in the documents incorporated by reference. Other than as required under the securities laws, we do not assume a duty to update these forward-looking statements, whether as a result of new information, subsequent events or circumstances, changes in expectations or otherwise.

This prospectus forms a part of a registration statement on Form S-3 (File No. 333-[*]) that we filed with the SEC. This prospectus does not contain all of the information found in the registration statement. For further information regarding us and our securities, you may desire to review the full registration statement, including its exhibits and schedules, filed under the Securities Act, as well as our proxy statement, annual, quarterly and other reports and other information we file with the SEC. You may read and copy any document we file with the SEC at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. The SEC maintains a website on the Internet at www.sec.gov that contains reports, proxy and information statements, and other information regarding companies that file electronically with the SEC. We maintain a website on the Internet at www.brninc.com. Our registration statement, of which this prospectus constitutes a part, can be downloaded from the SEC’s website or from our website at www.brninc.com. Information on the SEC website, our website or any other website is not incorporated by reference in this prospectus and does not constitute part of this prospectus.

The following documents, which have previously been filed by us with the SEC under the Exchange Act, are incorporated herein by reference:

All documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any information furnished pursuant to Item 2.02 or Item 7.01 on any current report on Form 8-K and any corresponding information furnished under Item 9.01 or included as an exhibit) after the date of the initial Registration Statement of which this prospectus forms a part and until the termination of the offering under this prospectus shall be deemed to be incorporated in this prospectus by reference and to be a part hereof from the date of filing of such documents. Any statement contained herein, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.

You may request a free copy of these filings, other than any exhibits, unless the exhibits are specifically incorporated by reference into this prospectus, by writing or telephoning us at the following address:

Our Common Stock is currently listed on the NYSE American. In order to maintain such listing, the rules of NYSE American provide that, among other things, we must meet certain continued listing standards relating to minimum amount of stockholders’ equity.  Even if an issuer fails to meet the stockholders’ equity requirements, the NYSE American will not normally consider delisting securities of such issue if the issuer meets certain thresholds regarding the value of its market capitalization or total assets and revenue or the number of publicly held shares and related marked value.  Further, with respect to an issuer not in compliance with the stockholders’ equity requirements, upon notifying the issuer of such deficiency, the NYSE American generally provides an 18-month “cure period” for the issuer to regain the minimum stockholders’ equity requirement, however if the issuer is unable to do so, the NYSE American may delist its stock.

On January 13, 2020, we received a letter from the NYSE American staff (the “Exchange Staff”) indicating that we were not in compliance with Part 10, Sections 1003(a)(i) and (a)(ii) of the NYSE American Company Guide (the “Guide”) since we reported stockholders’ equity of $1.2 million and net losses in fiscal years ended September 30, 2019, September 30, 2018 and September 30, 2016. Our failure to meet the NYSE American’s stockholders’ equity requirements and the exceptions resulted in a risk that our Common Stock may be delisted. In accordance with the NYSE American’s policies and procedures, we submitted a plan (the “Plan”) addressing how we intended to regain compliance with Part 10, Section 1003 of the Guide. On April 2, 2020, the NYSE American notified us that it accepted the Plan and granted us an extension for our continued listing until July 13, 2021 (the “Plan Period”). We have been and will continue to be subject to periodic review by Exchange Staff during the Plan Period. The Plan was submitted to the NYSE American before the start of the COVID-19 pandemic-related low commodity price environment, the oil price war between Saudi Arabia and Russia and other macroeconomic pressures that have impacted our businesses and the U.S. economy in general. The magnitude and duration of these factors have and will adversely affect our ability to achieve the Plan’s goals and to return to compliance with the NYSE American’s listing standards.  If we do not regain compliance by the end of the Plan Period, or if we do not make ongoing progress consistent with its Plan, the NYSE American may initiate delisting procedures as appropriate.

Our reported stockholders’ equity fell from $2,049,000 at March 31, 2020 to a stockholders’ deficit of $2,045,000 at September 30, 2020. At December 31, 2020, we reported a stockholders’ deficit of $1,662,000, as disclosed in the condensed consolidated financial statements included in our Quarterly Report on Form 10-Q and incorporated by reference in this prospectus. Thus, we may fail to be in compliance with the NYSE American continued listing standards relating to stockholders’ equity to which the Plan relates; specifically Section 1003(a)(i) and Section 1003(a)(ii). We have submitted updates to the Plan, as required or requested by the NYSE American, with the most recent Plan update submitted in March 2021. The March 2021 Plan update presented initiatives which, if all of them are achieved, could result in the amount of stockholders’ equity required by the NYSE American at the end of the Plan Period and accordingly result in our regaining compliance with the NYSE American’s continued listing standards. There is no assurance that the presented initiatives will in fact be achieved. We have not yet received any correspondence from the NYSE American regarding the March 2021 Plan update. If the NYSE American delists our Common Stock, investors may face material adverse consequences, including, but not limited to, a lack of a trading market for our Common Stock, reduced liquidity, and an inability for us to obtain financing to fund our operations.

Such risks may continue regardless of any proceeds from the sale of shares of Common Stock in any offering made pursuant to this prospectus (or any applicable prospectus supplement).

In the event of a delisting, we would expect to take actions to restore our compliance with the NYSE American listing rules, but we can provide no assurance that any such action taken by us would allow our Common Stock to become listed again, stabilize the market price or improve the liquidity of our Common Stock, prevent our Common Stock from dropping below the minimum bid price requirement, or prevent future non-compliance with the listing requirements.

Our management will have broad discretion as to the application of the net proceeds from the sale of the shares of Common Stock offered by us, if any, and could spend the proceeds in a variety of ways that may ultimately fail to improve our operating results or enhance the value of our Common Stock. Our failure to apply these funds effectively could have a negative effect on our business and cause the price of our Common Stock to decline. See “Use of Proceeds.”

The market price of our Common Stock has been volatile and could fluctuate based on a variety of factors, including:

Pursuant to this prospectus, and subject to any limitations set forth in the applicable offering prospectus we may issue and sell shares of our Common Stock in one or more offerings up to a total offering price of $25,000,000 (subject to a maximum equal to one-third of our public float as limited by General Instruction I.B.6. of SEC Form S-3, so long as our public float remains under $75.0 million, the “Maximum Total Offering Amount”). The issuance and sale from time to time of those new shares of Common Stock, or our ability to issue these new shares of Common Stock in one or more offerings, could have the effect of depressing the market price of our Common Stock.

A substantial number of shares of Common Stock may be sold in the public market following offerings pursuant to this prospectus (and any applicable prospectus supplement), which may cause the market price of our Common Stock to decline. If there are more shares of Common Stock offered for sale than buyers are willing to purchase, then the market price of our Common Stock may decline to a market price at which buyers are willing to purchase the offered shares of Common Stock and sellers remain willing to sell the shares of Common Stock.

Our Board of Directors has authority, without action or vote of the stockholders, subject to the requirements of the NYSE American, to issue all or part of the authorized but unissued shares of Common Stock, preferred stock or warrants to purchase such shares of Common Stock. In addition, we may attempt to raise capital by selling shares of our Common Stock, possibly at a discount to market in the future. These actions would result in dilution of the ownership interests of existing stockholders and may further dilute Common Stock book value, and that dilution may be material. A related effect of such issuances may enhance existing large stockholders’ influence on the Company, including that of Alexander Kinzler, our Chief Executive Officer.

If we offer shares of our Common Stock pursuant to this prospectus (and any applicable prospectus supplement), purchasers of our Common Stock in any such offering(s) may experience immediate dilution in net tangible book value per share. See “Dilution.”

There is no certainty that gross proceeds raised in one or more offerings pursuant to this prospectus (and any applicable prospectus supplement) will equal the Maximum Total Offering Amount. Any such offering(s) may be made on a commercially reasonable efforts basis with no minimum, and only as requested by us, and we may raise substantially less than the Maximum Total Offering Amount.

Investors who purchase shares in an offering pursuant to this prospectus (and any applicable prospectus supplement) may do so at different times than certain other investors and, as such, may pay different prices and experience different outcomes in their investment results than such other investors. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold, and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share sales made at prices lower than the prices they paid.

We currently intend to retain any future earnings to support the growth and development of our business and do not anticipate paying declaring or paying cash dividends in the foreseeable future. Our payment of any future dividends will be at the discretion of our Board of Directors after taking into account various factors, including without limitation, our future earnings, capital requirements, financial conditions, future prospects, contractual restrictions and covenants and other factors that our Board of Directors may deem relevant.  To the extent we do not pay dividends, our Common Stock may be less valuable because a return on investment will only occur if and to the extent our stock price appreciates, which may never occur. In addition, investors must rely on sales of their Common Stock after price appreciation as the only way to realize their investment, and if the price of our Common Stock does not appreciate, then there will be no return on investment. Investors seeking cash dividends should not purchase our Common Stock.

We have filed a Registration Statement of which this prospectus is a part to register the shares that may be offered hereunder for sale. These shares represent a large number of shares of our Common Stock, and if sold publicly in the market all at once or in a short period of time, could depress the market price of our Common Stock during the period the Registration Statement remains effective.

As of September 30, 2020, our CEO, who is a member of our Board of Directors, and three other stockholders hold approximately 51% of our outstanding Common Stock. The interests of one or more of these stockholders may not always coincide with the interests of other stockholders. These stockholders have significant influence over all matters submitted to our stockholders, including the election of our directors, and could accelerate, delay, deter or prevent a change of control of the Company.

The global economy, our markets and our business have been materially and adversely affected by COVID-19. In the first calendar quarter of 2020, the COVID-19 outbreak caused significant reductions in demand for oil and oil prices, which made the development of our proven undeveloped reserves uneconomical and negatively impacted our financial condition and outlook. As the COVID-19 pandemic continued throughout fiscal 2020 and is continuing, oil prices have continued to make the development of proven undeveloped reserves uneconomical and have severely reduced if not eliminated our ability to finance such development; therefore, we have suspended such development. While our contract drilling segment remained operational throughout fiscal 2020 and continues to work, the continuing impact of COVID-19 on the ability or desire for customers to continue such work is uncertain, and any discontinuation of contracts currently in backlog would result in a material adverse impact to our financial condition and outlook. Both the health and economic aspects of the COVID-19 pandemic remain highly fluid and the future course of each is uncertain. We cannot foresee whether the outbreak of COVID-19 will be effectively contained on a sustained basis, nor can we predict the severity and duration of its impact. If the outbreak of COVID-19 is not effectively and timely controlled, our business operations and financial condition may continue to be materially and adversely affected as a result of the deteriorating market outlook, the global economic recession, weakened liquidity or factors that we cannot foresee. Any of these factors and other factors beyond our control could have an adverse effect on the overall business environment, cause uncertainties in the regions where we conduct business, cause our business to suffer in ways that we cannot predict and materially and adversely impact our business, financial condition and results of operations.

Currently, we are a “smaller reporting company,” meaning that our outstanding Common Stock held by nonaffiliates had a value of less than $250 million at the end of our most recently completed second fiscal quarter. As a smaller reporting company, we are not required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, meaning our auditors are not required to attest to the effectiveness of our internal control over financial reporting. As a result, investors and others may be less comfortable with the effectiveness of our internal controls and the risk that material weaknesses or other deficiencies in internal controls go undetected may increase. In addition, as a smaller reporting company, we take advantage of our ability to provide certain other less comprehensive disclosures in our SEC filings, including, among other things, providing only two years of audited financial statements in annual reports and simplified executive compensation disclosures. Consequently, it may be more challenging for investors to analyze our results of operations and financial prospects, as the information we provide to stockholders may be different from what one might receive from other public companies in which one hold shares. As a smaller reporting company, we are not required to provide this information.

On January 20, 2021, President Biden issued an executive order revoking the federal permit previously granted by the Trump administration for the proposed Keystone XL pipeline between Canada and the United States. We are in the process of reviewing the decision and assessing its implications on our business. To the extent the revocation has a negative impact on opportunities (or expected opportunities) for Canadian oil producers (such as us) to deliver their product to the United States market, the revocation  may negatively affect our business.

Unless we state otherwise in the prospectus supplement or any pricing supplement, we will use the net proceeds from the sale of the shares of Common Stock offered by us for working capital, investments, acquisitions and general corporate purposes.  The precise amount and timing of the application of these net proceeds will depend on our funding requirements and the availability and costs of other funds. Pending any specific application, we may initially invest funds in short-term marketable securities or apply them to the reduction of indebtedness.

Our net tangible book value as of December 31, 2020 was approximately ($1,659,000), or ($0.20) per share of our common stock. Net tangible book value per share of Common Stock is determined by dividing our tangible net worth, which is tangible assets less liabilities, by the total number of shares of our Common Stock outstanding. Purchasers of our Common Stock in an offering will experience immediate dilution in net tangible book value per share. The prospectus supplement relating to an offering of shares of our Common Stock may set forth the specific information regarding the dilutive effect of that offering.

In the discussion that follows, we have summarized selected provisions of our certificate of incorporation and bylaws, each as amended. You should read our certificate of incorporation and bylaws as currently in effect for more details regarding the provisions we describe below and for other provisions that may be important to you. We have filed copies of those documents with the SEC, and they are incorporated by reference herein. Please read “Where You Can Find More Information.”

Voting. Holders of our Common Stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. Accordingly, holders of a majority of the shares of Common Stock entitled to vote in any election of directors may elect all of the directors standing for election.  Holders of record of a majority of our Common Stock then issued and outstanding and entitled to vote, represented in person or by proxy, are necessary and sufficient to constitute a quorum for the transaction of business, except as otherwise provided by law.  Except as otherwise provided by law, in all other matters the affirmative vote of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders.

Delaware law, our certificate of incorporation and our bylaws contain provisions that could have the effect of delaying, deferring or discouraging another party from acquiring control of us. These provisions, which are summarized below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our Board.

Our bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of persons for election to the Board of Directors. Stockholders at an annual meeting may only consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of the Board of Directors or by a stockholder of record on the record date for the meeting, that is entitled to vote at the meeting and that has delivered to our secretary a timely written notice in proper form of the stockholder’s intention to bring such business before the meeting. These provisions could have the effect of delaying until the next stockholder meeting stockholder actions that are favored by the holders of a majority of our outstanding voting Common Stock.

We are subject to Section 203 of the General Corporation Law of the State of Delaware, amended from time to time (the “Delaware Law”). Subject to certain exceptions, Section 203 prevents a publicly held Delaware corporation from engaging in a “business combination” with any “interested stockholder” for three years following the date that the person became an interested stockholder, unless the interested stockholder attained such status with the approval of our Board of Directors or unless the business combination is approved in a prescribed manner. A “business combination” includes, among other things, a merger or consolidation involving us and the “interested stockholder” and the sale of more than 10% of our assets. In general, an “interested stockholder” is any entity or person beneficially owning 15% or more of our outstanding voting stock and any entity or person affiliated with or controlling or controlled by such entity or person.

Our certificate of incorporation limits the personal liability of directors for breach of fiduciary duty to the maximum extent permitted by the Delaware Law. Our certificate of incorporation provides that no director will have personal liability to us or to our stockholders for monetary damages for breach of fiduciary duty or other duty as a director, except for:

Any amendment to or repeal of these provisions will not eliminate or reduce the effect of these provisions in respect of any act or failure to act, or any cause of action, suit or claim that would accrue or arise prior to any amendment or repeal or adoption of an inconsistent provision. If the Delaware Law is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of our directors will be further limited to the greatest extent permitted by the Delaware Law.

In addition, our certificate of incorporation provides that we must indemnify our directors in accordance with Section 145 of the Delaware Law.

Our authorized but unissued shares of Common Stock and preferred stock are available for future issuance without stockholder approval, subject to any limitations imposed by the listing standards of the NYSE American. These additional shares may be used for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved Common Stock and preferred stock could make it more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.

The transfer agent and registrar for our Common Stock is Broadridge Corporate Issuer Solutions, Inc., 51 Mercedes Way, Edgewood, NY 11717.

Our Common Stock is listed on the NYSE American under the symbol “BRN”.

The following discussion is a summary of material U.S. federal income tax considerations relevant to Non-U.S. Holders (as defined below) relating to the purchase, ownership and disposition of our Common Stock issued pursuant to this offering. This discussion is based on the U.S. Internal Revenue Code of 1986, as amended, or the “Code,” final, temporary and proposed U.S. Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the U.S. Internal Revenue Service, or the “IRS,” in each case in effect as of the date hereof. Each of the foregoing authorities may be changed, repealed, revoked or modified or be subject to differing interpretations that may be applied retroactively in a manner that could adversely affect a Non-U.S. Holder of our Common Stock. We have not sought and obtained, and will not seek and obtain, any rulings from the IRS regarding the matters discussed herein. There can be no assurance that the IRS or a court will not take a contrary position to that discussed below regarding the U.S. federal income tax consequences of the purchase, ownership and disposition of our Common Stock or that such contrary position will not be sustained by a court.

This discussion is limited to Non-U.S. Holders that hold our Common Stock as a “capital asset” within the meaning of the Code (generally, property held for investment). This discussion does not purport to be a complete analysis of all potential tax consequences and does not address the effects of other U.S. federal tax laws, such as the U.S. estate and gift tax laws, or any applicable state, local or non-U.S. tax laws or tax treaties. This summary does not address all U.S. federal income tax consequences relevant to a Non-U.S. Holder’s particular circumstances, including the impact of the Medicare contribution tax on net investment income. In addition, it does not address consequences relevant to Non-U.S. Holders subject to special rules, including, without limitation:

If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds our Common Stock, the tax treatment of such partnership and a partner of the partnership will generally depend on the status of the partner and the activities of the partnership. Accordingly, partnerships holding our Common Stock and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them in connection with the purchase, ownership and disposition of our Common Stock.

THIS DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE TAX ADVICE. PROSPECTIVE INVESTORS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR COMMON STOCK ARISING UNDER U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR ANY APPLICABLE INCOME TAX TREATY.

For purposes of this discussion, a “Non-U.S. Holder” is any beneficial owner of our Common Stock that is neither a “U.S. person” nor an entity or arrangement treated as a partnership for U.S. federal income tax purposes. A U.S. person is any person that, for U.S. federal income tax purposes, is or is treated as any of the following:

We do not currently intend to make any distributions on our Common Stock in the foreseeable future. However, if we make distributions of cash or property on our Common Stock, such distributions will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Amounts not treated as dividends for U.S. federal income tax purposes will constitute a return of capital and first be applied against and reduce a Non-U.S. Holder’s adjusted tax basis in its Common Stock, but not below zero. Any excess will be treated as capital gain and will be treated as described below under “—Sale or Other Taxable Disposition.”

Subject to the discussions below regarding effectively connected income, backup withholding and the Foreign Account Tax Compliance Act (“FATCA”), dividends paid to a Non-U.S. Holder of our Common Stock will be subject to U.S. federal withholding tax at a rate of 30% of the gross amount of the dividends (or such lower rate specified by an applicable income tax treaty, provided the Non-U.S. Holder furnishes a valid IRS Form W-8BEN or W-8BEN-E (or successor form or other applicable documentation) certifying qualification for the lower treaty rate). A Non-U.S. Holder that does not timely furnish the required documentation, but that qualifies for a reduced treaty rate, may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS. Non-U.S. Holders should consult their tax advisors regarding their entitlement to benefits under any applicable income tax treaty.

If dividends paid to a Non-U.S. Holder are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment or fixed base in the United States to which such dividends are attributable), the Non-U.S. Holder will be exempt from the U.S. federal withholding tax described above. To claim the exemption, the Non-U.S. Holder must furnish to the applicable withholding agent a valid IRS Form W-8ECI (or successor form), certifying that the dividends are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States.

Any such dividends that constitute effectively connected income will be subject to U.S. federal income tax on a net income basis at the regular graduated rates applicable to U.S. Persons. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected dividends, as adjusted for certain items.

Non-U.S. Holders should consult their tax advisors regarding any applicable tax treaties that may provide for different rules.

Subject to the discussions below regarding backup withholding and FATCA, a Non-U.S. Holder will not be subject to U.S. federal income tax on any gain realized upon the sale or other taxable disposition of our Common Stock unless:

Gain described in the first bullet point above generally will be subject to U.S. federal income tax on a net income basis at the regular graduated rates applicable to U.S. Persons. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items.

Gain described in the second bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty), which may be offset by U.S.-source capital losses of the Non-U.S. Holder (even though the individual is not considered a resident of the United States), provided the Non-U.S. Holder has timely filed U.S. federal income tax returns with respect to such losses.

With respect to the third bullet point above, we believe we currently are not, and do not anticipate becoming, a USRPHC. Because the determination of whether we are a USRPHC depends, however, on the fair market value of our USRPIs relative to the fair market value of our non- USRPIs and our other business assets, there can be no assurance we currently are not a USRPHC or will not become one in the future. Even if we are or were to become a USRPHC, gain arising from the sale or other taxable disposition by a Non-U.S. Holder of our Common Stock will not be subject to U.S. federal income tax if our Common Stock is considered “regularly traded,” as defined by applicable U.S. Treasury Regulations, on an established securities market, and such Non-U.S. Holder owned, actually or constructively, 5% or less of our Common Stock throughout the shorter of the five-year period ending on the date of the sale or other taxable disposition or the Non-U.S. Holder’s holding period. If we are a USRPHC and either our Common Stock is not regularly traded on an established securities market or a Non-U.S. Holder holds more than 5% of our Common Stock, actually or constructively, during the applicable period, such Non-U.S. Holder will generally be taxed on any gain in the same manner as gain that is effectively connected with the conduct of a U.S. trade or business, except that the branch profits tax generally will not apply.

Non-U.S. Holders should consult their tax advisors regarding potentially applicable income tax treaties that may provide for different rules.

The United States imposes backup withholding, currently at a rate of 24%, on the gross amount of dividends and certain other payments. Payments of dividends on our Common Stock will not be subject to backup withholding, provided the applicable withholding agent does not have actual knowledge or reason to know the holder is a U.S. person and the holder either certifies its non-U.S. status, such as by furnishing a valid IRS Form W-8BEN, W-8BEN-E or W-8ECI, applicable substitute or successor form, or otherwise establishes an exemption. However, information returns are required to be filed with the IRS in connection with any dividends paid with respect to our Common Stock to a Non-U.S. Holder, regardless of whether any tax was actually withheld. In addition, proceeds from the sale or other taxable disposition of our Common Stock within the United States or conducted through certain U.S.-related brokers generally will not be subject to backup withholding or information reporting, if the applicable withholding agent receives the certification described above and does not have actual knowledge or reason to know that such holder is a U.S. Person, or the holder otherwise establishes an exemption. Proceeds of a disposition of our Common Stock conducted through a non-U.S. office of a non-U.S. broker that does not have certain enumerated relationships with the United States generally will not be subject to backup withholding or information reporting.

Copies of information returns that are filed with the IRS may also be made available under the provisions of an applicable treaty or agreement to the tax authorities of the country in which the Non-U.S. Holder resides or is established.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a Non-U.S. Holder’s U.S. federal income tax liability, provided the required information is timely furnished to the IRS.

In addition to the withholding described above, withholding may be imposed under Sections 1471 to 1474 of the Code (commonly referred to as FATCA) on certain types of payments made to non-U.S. financial institutions and certain other non-U.S. entities. Specifically, a 30% withholding tax may be imposed on dividends on, or gross proceeds from the sale or other disposition of, our Common Stock paid to a “foreign financial institution” or a “non-financial foreign entity” (each as defined in the Code), unless (i) the foreign financial institution undertakes certain diligence and reporting obligations, (ii) the non-financial foreign entity either certifies it does not have any “substantial United States owners” (as defined in the Code) or furnishes identifying information regarding each substantial United States owner or (iii) the foreign financial institution or non- financial foreign entity otherwise qualifies for an exemption from these rules. If the payee is a foreign financial institution and is subject to the diligence and reporting requirements in (i) above, it must enter into an agreement with the U.S. Department of the Treasury requiring, among other things, that it undertake to identify accounts held by certain “specified United States persons” or “United States-owned foreign entities” (each as defined in the Code), annually report certain information about such accounts, and withhold 30% on certain payments to non-compliant foreign financial institutions and certain other account holders. Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be subject to different rules.

Under proposed U.S. Treasury Regulations, FATCA withholding currently will not apply to gross proceeds from the sale or other disposition of our Common Stock. The preamble to the foregoing proposed U.S. Treasury Regulations states that taxpayers may rely on them pending their finalization.

Prospective investors should consult their tax advisors regarding the potential application of withholding under FATCA to their investment in our Common Stock.

We may sell the shares of Common Stock offered by this prospectus from time to time through underwriters, dealers or agents or directly to purchasers, in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. We may use these methods in any combination.

We will describe the terms of the offering of the securities in a prospectus supplement, information incorporated by reference or any related free writing prospectus, including:

Only underwriters we name in the prospectus supplement, information incorporated by reference or any related free writing prospectus are underwriters of the shares of Common Stock offered thereby.

The distribution of the shares of Common Stock may be effected, from time to time, in one or more transactions, including:

We may use an underwriter or underwriters in the offer or sale of the shares of Common Stock.

We may use a dealer to sell our securities.

If we offer the shares of Common Stock in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.

We may authorize our agents and underwriters to solicit offers by certain institutions to purchase the shares of Common Stock at the public offering price under delayed delivery contracts.

We may directly solicit offers to purchase the shares of Common Stock, and we may directly sell the shares of Common Stocks to institutional or other investors, including our affiliates. We will describe the terms of our direct sales in the prospectus supplement. We may also sell the shares of Common Stock upon the exercise of rights which we may issue.

Underwriters, dealers and agents that participate in the distribution of the shares of Common Stock may be underwriters as defined in the Securities Act, and any discounts or commissions they receive and any profit they make on the resale of the shares of Common Stock may be treated as underwriting discounts and commissions under the Securities Act. Any underwriters or agents will be identified and their compensation described in a prospectus supplement. We may indemnify agents, underwriters and dealers against certain civil liabilities, including liabilities under the Securities Act, or make contributions to payments they may be required to make relating to those liabilities. Our agents, underwriters and dealers, or their affiliates, may be customers of, engage in transactions with or perform services for us in the ordinary course of business.

Any underwriters to whom the shares of Common Stock offered by this prospectus are sold by us for public offering and sale may make a market in the shares of Common Stock, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of the trading market for the shares of Common Stock offered by this prospectus.

Representatives of the underwriters through whom the shares of Common Stock are sold for public offering and sale may engage in over-allotment, stabilizing transactions, syndicate short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves syndicate sales in excess of the offering size, which creates a syndicate short position. Stabilizing transactions permit bids to purchase the shares of Common Stock so long as the stabilizing bids do not exceed a specified maximum.

Syndicate covering transactions involve purchases of the shares of Common Stock in the open market after the distribution has been completed in order to cover syndicate short positions. Penalty bids permit the representative of the underwriters to reclaim a selling concession from a syndicate member when the offered securities originally sold by such syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. Such stabilizing transactions, syndicate covering transactions and penalty bids may cause the price of the offered securities to be higher than it would otherwise be in the absence of such transactions. These transactions may be effected on a national securities exchange and, if commenced, may be discontinued at any time. Underwriters, dealers and agents may be customers of, engage in transactions with or perform services for, us and our subsidiaries in the ordinary course of business.

In compliance with the guidelines of the Financial Industry Regulatory Authority, or FINRA, the aggregate maximum discount, commission or agency fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will not exceed 8% of any offering pursuant to this prospectus and any applicable prospectus supplement or other offering materials; however, it is anticipated that the maximum commission or discount to be received in any particular offering of the shares of Common Stock will be less than this amount.

If 5% or more of the net proceeds of any offering of securities made under this prospectus will be received by a FINRA member participating in the offering or affiliates or associated persons of such FINRA member, the offering will be conducted in accordance with FINRA Rule 5121.

Certain legal matters in connection with the issuance and sale of our Common Stock offered hereby will be passed on for us by Stroock & Stroock & Lavan LLP, New York, New York.  Any underwriters will be advised about other issues relating to any offering by their own legal counsel.

The consolidated financial statements of the Company as of September 30, 2020, and for the fiscal year ended September 30, 2020, included in our Annual Report on Form 10-K, have been incorporated by reference herein in reliance upon the report of Weaver and Tidwell, L.L.P., an independent registered public accounting firm, and upon the authority of said firm as experts in accounting and auditing.

The audit report covering the September 30, 2020 consolidated financial statements contains an explanatory paragraph that states that our recurring losses from operations and accumulated deficit raise substantial doubt about our ability to continue as a going concern.  The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty.

The consolidated financial statements of the Company as of September 30, 2019, and for the year  ended September 30, 2019, have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The Company has agreed to indemnify and hold KPMG LLP harmless against and from any and all legal costs and expenses incurred by KPMG LLP in successful defense of any legal action or proceeding that arises as a result of KPMG LLP’s consent to the incorporation by reference of its audit report on the Company’s past financial statements incorporated by reference in this registration statement.

This prospectus relates to the offer and sale, from time to time, of up to a maximum of $7,398,672 in aggregate sales price of shares of our Common Stock, par value $0.50 per share, to or through A.G.P./Alliance Global Partners, or A.G.P., acting as sales agent, in accordance with the terms of a sales agreement we have entered into with A.G.P.

Sales of our Common Stock, if any, under this prospectus will be made by any methods deemed to be  “at the market offerings” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended, or the Securities Act. If authorized by us in writing, A.G.P. may also sell shares of our common stock in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices. Subject to the terms of the sales agreement, A.G.P. is not required to sell any specific amount of securities, but will act as our sales agent using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually agreed terms between A.G.P. and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.

A.G.P. will be entitled to compensation under the terms of the sales agreement at a fixed commission rate of 3% of the gross proceeds from the sale of our Common Stock on our behalf as sales agent pursuant to the sales agreement. In connection with the sale of the Common Stock on our behalf, A.G.P. will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of A.G.P. will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to A.G.P. against certain civil liabilities, including liabilities under the Securities Act. See “Plan of Distribution.”

You should assume that the information contained in this prospectus is accurate only as of the date on the front cover page of the applicable document and that any information we have incorporated by reference into this prospectus is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, or any sale of shares of Common Stock.

In addition, we incorporate important information into this prospectus by reference. You may obtain the information incorporated by reference into this prospectus without charge by following the instructions under “Where You Can Find More Information” in this prospectus. We urge you to carefully read this prospectus and the information incorporated by reference and in any free writing prospectus or prospectus supplement that we have authorized for use in connection with this offering before buying any of the securities being offered under this prospectus.

To the extent that any statement that we make in this prospectus or any documents incorporated by reference herein or therein, the statements made in this prospectus will be deemed to modify or supersede those made in such documents incorporated by reference herein or therein.

You should rely only on the information contained, or incorporated herein by reference, in this prospectus and contained, or incorporated herein by reference, in the accompanying prospectus. Neither we nor the sales agent have authorized anyone to provide you with different information. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus. You should not rely on any unauthorized information or representation.

This prospectus is an offer to sell only the securities offered hereby, and only under circumstances and in jurisdictions where it is lawful to do so. The distribution of this prospectus and the offering of the shares in certain jurisdictions or to certain persons within such jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus must inform themselves about and observe any restrictions relating to the offering of the shares and the distribution of this prospectus outside the United States. This prospectus does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.

This prospectus is part of a registration statement on Form S-3 (File No. 333-[*]) that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration process. Under this “shelf” process, we may sell from time to time in one or more offerings up to $25.0 million in aggregate offering price of our Common Stock (subject to a maximum equal to one-third of our public float as limited by General Instruction I.B.6. of SEC Form S-3, so long as our public float remains under $75.0 million). The shares of Common Stock that may be offered, issued and sold under this prospectus are included in the $25.0 million of Common Stock that may be offered, issued and sold by us pursuant to our shelf registration statement.

Unless expressly stated otherwise, all references in this prospectus to “we,” “us,” “our” or similar references mean Barnwell Industries, Inc. and its subsidiaries on a consolidated basis.

The information contained in this prospectus, our filings with the SEC and our public releases include “forward-looking statements” within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).  Forward-looking statements are subject to certain risks, trends and uncertainties that could cause actual results to differ materially from those projected. Among those risks, trends and uncertainties are:

These forward-looking statements are identified by their use of terms and phrases such as “expect,” “estimate,” “project,” “plan,” “believe,” “achievable,” “anticipate” and similar terms and phrases. Although we believe that the expectations reflected in these forward-looking statements are reasonable, they do involve certain assumptions, risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including but not limited to the risks and uncertainties discussed in  the section entitled “Risk Factors” included in this prospectus and in the documents that we include in or incorporate by reference into this prospectus, including our Annual Report on Form 10-K, as amended by our Annual Report on Form 10-K/A Amendment No. 1, for the fiscal year ended September 30, 2020 and our subsequent SEC filings.

All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements in this section and elsewhere in this prospectus and in the documents incorporated by reference. Other than as required under the securities laws, we do not assume a duty to update these forward-looking statements, whether as a result of new information, subsequent events or circumstances, changes in expectations or otherwise.

Our mission and purpose are to utilize our state-of-the-art technologies, extensive experience and wide industry connections to continue to find wells for the production of oil, and, in so doing, drive demand for our products and services, and to capitalize on other business opportunities that complement our oil and natural gas segment.

Since 2014, we have focused on streamlining our operations by divesting our mature natural gas and heavy oil properties while significantly investing in prospects in Canada.  We now acquire and develop crude oil and natural gas assets in the province of Alberta, Canada via two corporate entities, Barnwell of Canada and Octavian Oil.  In addition, in 2013 we entered into various partnerships that have interests in land in Hawaii.  As the land is sold or developed into single-family and multi-family residential properties, we have rights to receive payments and distributions.  Our contract drilling segment also drills water and water monitoring wells of varying depths in Hawaii, installs and repairs water pumping systems, and is the distributor for Floway pumps and equipment in the state of Hawaii.

Following our 2020 annual meeting of stockholders, three individuals who had been nominated by stockholders were elected to join our Board of Directors and three long-time members of our Board retired.

We believe that our recent efforts over the past few years, as well as the changes to the Board, have strengthened our company.

Our executive offices are located at 1100 Alakea Street, Suite 2900, Honolulu, Hawaii 96813 and our telephone number is (808) 531-8400. Our website address is www.brninc.com. The information on our website is not part of this prospectus. We have included our website address as a factual reference and do not intend it to be an active link to our website.

Our ability to sustain our business in the future will depend on sufficient oil and natural gas operating cash flows, which are highly sensitive to volatile oil and natural gas prices, sufficient contract drilling operating cash flows, which are subject to potentially large changes in demand, and sufficient future land investment segment proceeds and distributions from the land development partnerships in which we have invested, the timing of which are both highly uncertain and not within our control. A sufficient level of such cash inflows are necessary to fund discretionary oil and natural gas capital expenditures, which must be economically successful to provide sufficient returns, as well as fund our non-discretionary outflows such as oil and natural gas asset retirement obligations and ongoing operating and general and administrative expenses.

We have experienced a trend of losses and negative operating cash flows in three of the last four years. Due to the additional impacts of the COVID-19 pandemic, we now face a greater uncertainty about our cash inflows as described above, which in turn leads to substantial doubt regarding our ability to make the required discretionary cash outflows for the capital expenditures necessary to convert our proved undeveloped reserves to proved developed reserves. Furthermore, because of the greater uncertainty about our cash inflows described above, there is substantial doubt about our ability to fund our non-discretionary cash outflows and thus substantial doubt about our ability to continue as a going concern.  The audit report covering our September 30, 2020 consolidated financial statements, which is included in our Annual Report on Form 10-K, as amended by our Annual Report on Form 10-K/A Amendment No. 1, for the fiscal year ended September 30, 2020 and incorporated by reference in this prospectus, contains an explanatory paragraph that states that our recurring losses from operations and accumulated deficit raise substantial doubt about our ability to continue as a going concern.  The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty.

We have investigated potential sources of funding, including non-core oil and natural gas property sales, however, no probable sources of funding have yet been secured.  Additionally, in fiscal 2020, we listed our corporate office on the 29th floor of a commercial building in downtown Honolulu, Hawaii for sale to generate liquidity in order to help mitigate the substantial doubt about our ability to continue as a going concern. However, our ability to sell our corporate office at an appropriate time or for a sufficient price is outside of our control and is therefore not probable. Because of this uncertainty as well as uncertainties regarding the potential duration and depth of the impacts of the COVID-19 pandemic on our business as described above, substantial doubt about our ability to continue as a going concern exists.

Our Common Stock is currently listed on the NYSE American. In order to maintain such listing, the rules of NYSE American provide that, among other things, we must meet certain continued listing standards relating to minimum amount of stockholders’ equity.  Even if an issuer fails to meet the stockholders’ equity requirements, the NYSE American will not normally consider delisting securities of such issue if the issuer meets certain thresholds regarding the value of its market capitalization or total assets and revenue or the number of publicly held shares and related marked value.  Further, with respect to an issuer not in compliance with the stockholders’ equity requirements, upon notifying the issuer of such deficiency, the NYSE American generally provides an 18-month “cure period” for the issuer to regain the minimum stockholders’ equity requirement, however if the issuer is unable to do so, the NYSE American may delist its stock.

On January 13, 2020, we received a letter from the NYSE American staff (the “Exchange Staff”) indicating that we were not in compliance with Part 10, Sections 1003(a)(i) and (a)(ii) of the NYSE American Company Guide (the “Guide”) since we reported stockholders’ equity of $1.2 million and net losses in fiscal years ended September 30, 2019, September 30, 2018 and September 30, 2016. Our failure to meet the NYSE American’s stockholders’ equity requirements and the exceptions resulted in a risk that our Common Stock may be delisted. In accordance with the NYSE American’s policies and procedures, we submitted a plan (the “Plan”) addressing how we intended to regain compliance with Part 10, Section 1003 of the Guide. On April 2, 2020, the NYSE American notified us that it accepted the  Plan and granted us an extension for our continued listing until July 13, 2021 (the “Plan Period”). We have been and will continue to be subject to periodic review by Exchange Staff during the Plan Period. The Plan was submitted to the NYSE American before the start of the COVID-19 pandemic-related low commodity price environment, the oil price war between Saudi Arabia and Russia and other macroeconomic pressures that have impacted our businesses and the U.S. economy in general. The magnitude and duration of these factors have and will adversely affect our ability to achieve the Plan’s goals and to return to compliance with the NYSE American’s listing standards.  If we do not regain compliance by the end of the Plan Period, or if we do not make ongoing progress consistent with its Plan, the NYSE American may initiate delisting procedures as appropriate.

Our reported stockholders’ equity fell from $2,049,000 at March 31, 2020 to a stockholders’ deficit of $2,045,000 at September 30, 2020. At December 31, 2020, we reported a stockholders’ deficit of $1,662,000, as disclosed in the condensed consolidated financial statements included in our Quarterly Report on Form 10-Q and incorporated by reference in this prospectus. Thus, we may fail to be in compliance with the NYSE American’s continued listing standards relating to stockholders’ equity to which the Plan relates; specifically Section 1003(a)(i) and Section 1003(a)(ii). We have submitted updates to the Plan, as required or requested by the NYSE American, with the most recent Plan update submitted in March 2021. The March 2021 Plan update presented initiatives which, if all of them are achieved, could result in the amount of stockholders’ equity required by the NYSE American at the end of the Plan Period and accordingly result in our regaining compliance with the NYSE American’s continued listing standards. There is no assurance that the presented initiatives will in fact be achieved. We have not yet received any correspondence from the NYSE American regarding the March 2021 Plan update. If the NYSE American delists our Common Stock, investors may face material adverse consequences, including, but not limited to, a lack of a trading market for our Common Stock, reduced liquidity, and an inability for us to obtain financing to fund our operations.

 In the event of a delisting, we would expect to take actions to restore our compliance with the NYSE American listing rules, but we can provide no assurance that any such action taken by us would allow our Common Stock to become listed again, stabilize the market price or improve the liquidity of our Common Stock, prevent our Common Stock from dropping below the minimum bid price requirement, or prevent future non-compliance with the listing requirements.

There is no certainty that gross proceeds of $7,398,672 will be raised in this offering. A.G.P. has agreed to use its commercially reasonable efforts to sell the shares of Common Stock on our behalf if and as instructed by us, or to purchase shares of Common Stock as principal from time to time. As a result of the offering being made on a commercially reasonable efforts basis with no minimum, and only as requested by us, we may raise substantially less than the maximum total offering amount.

We currently intend to use the net proceeds of this offering, if any, for working capital and general corporate purposes.  However, our management will have broad discretion as to the application of the net proceeds from this offering, if any, and could spend the proceeds in a variety of ways that may ultimately fail to improve our operating results or enhance the value of our Common Stock. Our failure to apply these funds effectively could have a negative effect on our business and cause the price of our Common Stock to decline. See “Use of Proceeds.”

The market price of our Common Stock has been volatile and could fluctuate based on a variety of factors, including:

Pursuant to this prospectus, we may issue and sell shares of our Common Stock for aggregate gross proceeds of up to $7,398,672 from time to time in connection with this offering (subject to a maximum gross sales price equal to one-third of our public float as limited by General Instruction I.B.6. of SEC Form S-3, so long as our public float remains under $75.0 million).  The issuance and sale from time to time of those new shares of Common Stock, or our ability to issue these new shares of Common Stock in this offering, could have the effect of depressing the market price of our Common Stock.

All of our shares of Common Stock sold in the offering will be freely tradable without restriction or further registration under the Securities Act. As a result, a substantial number of shares of Common Stock may be sold in the public market following this offering, which may cause the market price of our Common Stock to decline. If there are more shares of Common Stock offered for sale than buyers are willing to purchase, then the market price of our Common Stock may decline to a market price at which buyers are willing to purchase the offered shares of Common Stock and sellers remain willing to sell the shares of Common Stock.

The shares sold in this offering, if any, will be sold from time to time at various prices.  However, because the public price per share of our Common Stock being offered will be substantially higher than the pro forma as adjusted net tangible book value per share of our Common Stock at the time of the sale, investors will pay a price per share that substantially exceeds the pro forma as adjusted net tangible book value per share after this offering and will suffer substantial dilution in the net tangible book value of the Common Stock purchased in this offering. See “Dilution.”

Our Board of Directors has authority, without action or vote of the stockholders, subject to the requirements of the NYSE American, to issue all or part of the authorized but unissued shares of Common Stock or warrants to purchase such shares of Common Stock. In addition, we may attempt to raise capital by selling shares of our Common Stock, possibly at a discount to market in the future. These actions would result in dilution of the ownership interests of existing stockholders and may further dilute Common Stock book value, and that dilution may be material. A related effect of such issuances may enhance existing large stockholders’ influence on the Company, including that of Alexander Kinzler, our Chief Executive Officer.

Subject to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver a placement notice to A.G.P. at any time and from time to time during the term of the sales agreement. The actual number of shares Common Stock that are sold to or through A.G.P. on our behalf pursuant to any placement notice we deliver to A.G.P. will depend on the market price of the Common Stock during the periods in which sales are made and any restrictions or limitations applicable to such sales, such as a minimum price below which sales may not be made, that we may include in such placement notice or that otherwise apply under the sales agreement. Because the price per share of each share of Common Stock sold will fluctuate based on the market price of our Common Stock during the sales period, it is not possible at this stage to predict the number of shares that will ultimately be issued and sold.

Investors who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold, and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share sales made at prices lower than the prices they paid.

We currently intend to retain any future earnings to support the growth and development of our business and do not anticipate paying declaring or paying cash dividends in the foreseeable future. Our payment of any future dividends will be at the discretion of our Board of Directors after taking into account various factors, including without limitation, our future earnings, capital requirements, financial conditions, future prospects, contractual restrictions and covenants and other factors that our Board of Directors may deem relevant.  To the extent we do not pay dividends, our Common Stock may be less valuable because a return on investment will only occur if and to the extent our stock price appreciates, which may never occur. In addition, investors must rely on sales of their Common Stock after price appreciation as the only way to realize their investment, and if the price of our Common Stock does not appreciate, then there will be no return on investment. Investors seeking cash dividends should not purchase our Common Stock.

We have filed a Registration Statement of which this prospectus is a part to register the shares that may be offered hereunder for sale. These shares represent a large number of shares of our Common Stock, and if sold publicly in the market all at once or in a short period of time, could depress the market price of our Common Stock during the period the Registration Statement remains effective.

 As of September 30, 2020, our CEO, who is a member of our Board of Directors, and three other stockholders hold approximately 51% of our outstanding Common Stock. The interests of one or more of these stockholders may not always coincide with the interests of other stockholders. These stockholders have significant influence over all matters submitted to our stockholders, including the election of our directors, and could accelerate, delay, deter or prevent a change of control of the Company.

The global economy, our markets and our business have been materially and adversely affected by COVID-19. In the first calendar quarter of 2020, the COVID-19 outbreak caused significant reductions in demand for oil and oil prices, which made the development of our proven undeveloped reserves uneconomical and negatively impacted our financial condition and outlook. As the COVID-19 pandemic continued throughout fiscal 2020 and is continuing, oil prices have continued to make the development of proven undeveloped reserves uneconomical and have severely reduced if not eliminated our ability to finance such development; therefore, we have suspended such development. While our contract drilling segment remained operational throughout fiscal 2020 and continues to work, the continuing impact of COVID-19 on the ability or desire for customers to continue such work is uncertain, and any discontinuation of contracts currently in backlog would result in a material adverse impact to our financial condition and outlook. Both the health and economic aspects of the COVID-19 pandemic remain highly fluid and the future course of each is uncertain. We cannot foresee whether the outbreak of COVID-19 will be effectively contained on a sustained basis, nor can we predict the severity and duration of its impact. If the outbreak of COVID-19 is not effectively and timely controlled, our business operations and financial condition may continue to be materially and adversely affected as a result of the deteriorating market outlook, the global economic recession, weakened liquidity or factors that we cannot foresee. Any of these factors and other factors beyond our control could have an adverse effect on the overall business environment, cause uncertainties in the regions where we conduct business, cause our business to suffer in ways that we cannot predict and materially and adversely impact our business, financial condition and results of operations.

The amount of proceeds from this offering will depend upon the number of shares of our Common Stock sold to or through A.G.P. under the sales agreement and the prices at which they are sold. There can be no assurance that we will be able to sell any shares of Common Stock under the sales agreement with A.G.P. or to what extent we will be able to utilize the sales agreement.

We intend to use the net proceeds from this offering, if any, for working capital, investments, acquisitions and general corporate purposes.  The precise amount and timing of the application of these net proceeds will depend on our funding requirements and the availability and costs of other funds.  As of the date of this prospectus, we have not determined the amount of net proceeds to be used specifically for any particular purpose or the timing of any expenditures. Accordingly, management will retain broad discretion and flexibility in applying the net proceeds from the sale of the shares of Common Stock, if any.

Our common stock is currently listed on the NYSE American under the symbol “BRN.”  On March 15, 2021, the last reported sales price of our common stock was $3.10 per share.

As of March 15, 2021 we had 81 holders of record of our common stock.  A substantially greater number of holders of our common stock are “street name” or beneficial holders, whose shares of record are held through banks, brokers, or other financial institutions and registered clearing agencies.

From 2000 to 2008, we paid dividends returning an aggregate of $8,248,000 to our stockholders but we do not currently anticipate declaring or paying cash dividends on our Common Stock in the foreseeable future. We currently intend to retain all of our future earnings, if any, to finance the growth and development of our business. Any future determination relating to our dividend policy will be made at the discretion of our Board of Directors and will depend on a number of factors, including future earnings, capital requirements, financial conditions, future prospects, contractual restrictions and covenants and other factors that our Board of Directors may deem relevant.

Our net tangible book value as of December 31, 2020 was approximately ($1,659,000), or ($0.20) per share of our common stock. Net tangible book value per share of Common Stock is determined by dividing our tangible net worth, which is tangible assets less liabilities, by the total number of shares of our Common Stock outstanding. Purchasers of our Common Stock in an offering will experience immediate dilution in net tangible book value per share. The prospectus supplement relating to an offering of shares of our Common Stock may set forth the specific information regarding the dilutive effect of that offering.

If you invest in this offering, your ownership interest will be diluted to the extent of the difference between the public offering price per share and the as adjusted net tangible book value per share after giving effect to this offering.

After giving effect to the assumed sale of 2,386,669 shares of our Common Stock in this offering for assumed gross proceeds of approximately $7,398,672 (based on an assumed offering price of $3.10 per share, which was the closing price of our Common Stock on March 15, 2021), before deduction of the sales agent discounts and commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of December 31, 2020 would have been approximately $5,736,672, or approximately $0.54 per share of Common Stock. This would have represented an immediate increase in net tangible book value of approximately $0.74 per share of Common Stock to our existing stockholders and an immediate decrease in net tangible book value of approximately $2.53 per share of Common Stock to investors in this offering. The actual amounts above are based on 8,277,160 shares outstanding as of March 15, 2021 and do not reflect 800,000 shares of Common Stock reserved for future issuance under our 2018 Equity Incentive Plan or the exercise of outstanding options to purchase shares of Common Stock in the computation as the effect would be anti-dilutive.

In this offering, we are offering shares of our Common Stock having an aggregate gross sales price of up to $7,398,672 (subject to a maximum gross sales price equal to one-third of our public float as limited by General Instruction I.B.6. of SEC Form S-3, so long as our public float remains under $75.0 million).  In the discussion that follows, we have summarized selected provisions of our certificate of incorporation and bylaws, each as amended. You should read our certificate of incorporation and bylaws as currently in effect for more details regarding the provisions we describe below and for other provisions that may be important to you. We have filed copies of those documents with the SEC, and they are incorporated by reference herein. Please read “Where You Can Find More Information.”

We are authorized by our certificate of incorporation to issue up to 20,000,000 shares of our Common Stock, par value $0.50 per share.  We have one class of Common Stock. As of March 15, 2021, there were 8,445,060 shares of our Common Stock issued, comprised of 8,277,160 shares outstanding and 167,900 shares in treasury stock. The outstanding shares of our Common Stock are validly issued, fully paid and nonassessable.

Voting. Holders of our Common Stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. Directors are elected by a plurality of the votes of shares of Common Stock present in person or represented by a proxy at a meeting and entitled to vote on the election of the directors. Holders of record of a majority of our Common Stock then issued and outstanding and entitled to vote, represented in person or by proxy, are necessary and sufficient to constitute a quorum for the transaction of business, except as otherwise provided by law.  Except as otherwise provided by law, in all other matters the affirmative vote of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders.

Delaware law, our certificate of incorporation and our bylaws contain provisions that could have the effect of delaying, deferring or discouraging another party from acquiring control of us. These provisions, which are summarized below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our Board.

Our bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of persons for election to the Board of Directors. Stockholders at an annual meeting may only consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of the Board of Directors or by a stockholder of record on the record date for the meeting, that is entitled to vote at the meeting and that has delivered to our secretary a timely written notice in proper form of the stockholder’s intention to bring such business before the meeting. These provisions could have the effect of delaying until the next stockholder meeting stockholder actions that are favored by the holders of a majority of our outstanding voting Common Stock.

We are subject to Section 203 of the General Corporation Law of the State of Delaware, as amended from time to time (the “Delaware Law”). Subject to certain exceptions, Section 203 prevents a publicly held Delaware corporation from engaging in a “business combination” with any “interested stockholder” for three years following the date that the person became an interested stockholder, unless the interested stockholder attained such status with the approval of our Board of Directors or unless the business combination is approved in a prescribed manner. A “business combination” includes, among other things, a merger or consolidation involving us and the “interested stockholder” and the sale of more than 10% of our assets. In general, an “interested stockholder” is any entity or person beneficially owning 15% or more of our outstanding voting stock and any entity or person affiliated with or controlling or controlled by such entity or person.

Our certificate of incorporation limits the personal liability of directors for breach of fiduciary duty to the maximum extent permitted by the Delaware Law. Our certificate of incorporation provides that no director will have personal liability to us or to our stockholders for monetary damages for breach of fiduciary duty or other duty as a director, except for:

Any amendment to or repeal of these provisions will not eliminate or reduce the effect of these provisions in respect of any act or failure to act, or any cause of action, suit or claim that would accrue or arise prior to any amendment or repeal or adoption of an inconsistent provision. If the Delaware Law is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of our directors will be further limited to the greatest extent permitted by the Delaware Law.

In addition, our certificate of incorporation provides that we must indemnify our directors in accordance with Section 145 of the Delaware Law.

Our authorized but unissued shares of Common Stock are available for future issuance without stockholder approval, subject to any limitations imposed by the listing standards of the NYSE American. These additional shares may be used for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved Common Stock could make it more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.

The transfer agent and registrar for our Common Stock is Broadridge Corporate Issuer Solutions, Inc., 51 Mercedes Way, Edgewood, NY 11717.

Our Common Stock is listed on the NYSE American under the symbol “BRN”.

The following discussion is a summary of material U.S. federal income tax considerations relevant to Non-U.S. Holders (as defined below) relating to the purchase, ownership and disposition of our Common Stock issued pursuant to this offering. This discussion is based on the U.S. Internal Revenue Code of 1986, as amended, or the “Code,” final, temporary and proposed U.S. Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the U.S. Internal Revenue Service, or the “IRS,” in each case in effect as of the date hereof. Each of the foregoing authorities may be changed, repealed, revoked or modified or be subject to differing interpretations that may be applied retroactively in a manner that could adversely affect a Non-U.S. Holder of our Common Stock. We have not sought and obtained, and will not seek and obtain, any rulings from the IRS regarding the matters discussed herein. There can be no assurance that the IRS or a court will not take a contrary position to that discussed below regarding the U.S. federal income tax consequences of the purchase, ownership and disposition of our Common Stock or that such contrary position will not be sustained by a court.

This discussion is limited to Non-U.S. Holders that hold our Common Stock as a “capital asset” within the meaning of the Code (generally, property held for investment). This discussion does not purport to be a complete analysis of all potential tax consequences and does not address the effects of other U.S. federal tax laws, such as the U.S. estate and gift tax laws, or any applicable state, local or non-U.S. tax laws or tax treaties. This summary does not address all U.S. federal income tax consequences relevant to a Non-U.S. Holder’s particular circumstances, including the impact of the Medicare contribution tax on net investment income. In addition, it does not address consequences relevant to Non-U.S. Holders subject to special rules, including, without limitation:

If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds our Common Stock, the tax treatment of such partnership and a partner of the partnership will generally depend on the status of the partner and the activities of the partnership. Accordingly, partnerships holding our Common Stock and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them in connection with the purchase, ownership and disposition of our Common Stock.

THIS DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE TAX ADVICE. PROSPECTIVE INVESTORS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR COMMON STOCK ARISING UNDER U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR ANY APPLICABLE INCOME TAX TREATY.

For purposes of this discussion, a “Non-U.S. Holder” is any beneficial owner of our Common Stock that is neither a “U.S. person” nor an entity or arrangement treated as a partnership for U.S. federal income tax purposes. A U.S. person is any person that, for U.S. federal income tax purposes, is or is treated as any of the following:

We do not currently intend to make any distributions on our Common Stock in the foreseeable future. However, if we make distributions of cash or property on our Common Stock, such distributions will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Amounts not treated as dividends for U.S. federal income tax purposes will constitute a return of capital and first be applied against and reduce a Non-U.S. Holder’s adjusted tax basis in its Common Stock, but not below zero. Any excess will be treated as capital gain and will be treated as described below under “—Sale or Other Taxable Disposition.”

Subject to the discussions below regarding effectively connected income, backup withholding and the Foreign Account Tax Compliance Act (“FATCA”), dividends paid to a Non-U.S. Holder of our Common Stock will be subject to U.S. federal withholding tax at a rate of 30% of the gross amount of the dividends (or such lower rate specified by an applicable income tax treaty, provided the Non-U.S. Holder furnishes a valid IRS Form W-8BEN or W-8BEN-E (or successor form or other applicable documentation) certifying qualification for the lower treaty rate). A Non-U.S. Holder that does not timely furnish the required documentation, but that qualifies for a reduced treaty rate, may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS.

Non-U.S. Holders should consult their tax advisors regarding their entitlement to benefits under any applicable income tax treaty.

If dividends paid to a Non-U.S. Holder are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment or fixed base in the United States to which such dividends are attributable), the Non-U.S. Holder will be exempt from the U.S. federal withholding tax described above. To claim the exemption, the Non-U.S. Holder must furnish to the applicable withholding agent a valid IRS Form W-8ECI (or successor form), certifying that the dividends are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States.

Any such dividends that constitute effectively connected income will be subject to U.S. federal income tax on a net income basis at the regular graduated rates applicable to U.S. Persons. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected dividends, as adjusted for certain items. Non-U.S.

Holders should consult their tax advisors regarding any applicable tax treaties that may provide for different rules.

Subject to the discussions below regarding backup withholding and FATCA, a Non-U.S. Holder will not be subject to U.S. federal income tax on any gain realized upon the sale or other taxable disposition of our Common Stock unless:

Gain described in the first bullet point above generally will be subject to U.S. federal income tax on a net income basis at the regular graduated rates applicable to U.S. Persons. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items.

Gain described in the second bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty), which may be offset by U.S.-source capital losses of the Non-U.S. Holder (even though the individual is not considered a resident of the United States), provided the Non-U.S. Holder has timely filed U.S. federal income tax returns with respect to such losses.

With respect to the third bullet point above, we believe we currently are not, and do not anticipate becoming, a USRPHC. Because the determination of whether we are a USRPHC depends, however, on the fair market value of our USRPIs relative to the fair market value of our non- USRPIs and our other business assets, there can be no assurance we currently are not a USRPHC or will not become one in the future. Even if we are or were to become a USRPHC, gain arising from the sale or other taxable disposition by a Non-U.S. Holder of our Common Stock will not be subject to U.S. federal income tax if our Common Stock is considered “regularly traded,” as defined by applicable U.S. Treasury Regulations, on an established securities market, and such Non-U.S. Holder owned, actually or constructively, 5% or less of our Common Stock throughout the shorter of the five-year period ending on the date of the sale or other taxable disposition or the Non-U.S. Holder’s holding period. If we are a USRPHC and either our Common Stock is not regularly traded on an established securities market or a Non-U.S. Holder holds more than 5% of our Common Stock, actually or constructively, during the applicable period, such Non-U.S. Holder will generally be taxed on any gain in the same manner as gain that is effectively connected with the conduct of a U.S. trade or business, except that the branch profits tax generally will not apply.

Non-U.S. Holders should consult their tax advisors regarding potentially applicable income tax treaties that may provide for different rules.

The United States imposes backup withholding, currently at a rate of 24%, on the gross amount of dividends and certain other payments. Payments of dividends on our Common Stock will not be subject to backup withholding, provided the applicable withholding agent does not have actual knowledge or reason to know the holder is a U.S. person and the holder either certifies its non-U.S. status, such as by furnishing a valid IRS Form W-8BEN, W-8BEN-E or W-8ECI, applicable substitute or successor form, or otherwise establishes an exemption. However, information returns are required to be filed with the IRS in connection with any dividends paid with respect to our Common Stock to a Non-U.S. Holder, regardless of whether any tax was actually withheld. In addition, proceeds from the sale or other taxable disposition of our Common Stock within the United States or conducted through certain U.S.-related brokers generally will not be subject to backup withholding or information reporting, if the applicable withholding agent receives the certification described above and does not have actual knowledge or reason to know that such holder is a U.S. Person, or the holder otherwise establishes an exemption. Proceeds of a disposition of our Common Stock conducted through a non-U.S. office of a non-U.S. broker that does not have certain enumerated relationships with the United States generally will not be subject to backup withholding or information reporting.

Copies of information returns that are filed with the IRS may also be made available under the provisions of an applicable treaty or agreement to the tax authorities of the country in which the Non-U.S. Holder resides or is established.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a Non-U.S. Holder’s U.S. federal income tax liability, provided the required information is timely furnished to the IRS.

In addition to the withholding described above, withholding may be imposed under Sections 1471 to 1474 of the Code (commonly referred to as FATCA) on certain types of payments made to non-U.S. financial institutions and certain other non-U.S. entities. Specifically, a 30% withholding tax may be imposed on dividends on, or gross proceeds from the sale or other disposition of, our Common Stock paid to a “foreign financial institution” or a “non-financial foreign entity” (each as defined in the Code), unless (i) the foreign financial institution undertakes certain diligence and reporting obligations, (ii) the non-financial foreign entity either certifies it does not have any “substantial United States owners” (as defined in the Code) or furnishes identifying information regarding each substantial United States owner or (iii) the foreign financial institution or non- financial foreign entity otherwise qualifies for an exemption from these rules. If the payee is a foreign financial institution and is subject to the diligence and reporting requirements in (i) above, it must enter into an agreement with the U.S. Department of the Treasury requiring, among other things, that it undertake to identify accounts held by certain “specified United States persons” or “United States-owned foreign entities” (each as defined in the Code), annually report certain information about such accounts, and withhold 30% on certain payments to non-compliant foreign financial institutions and certain other account holders. Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be subject to different rules.

Under proposed U.S. Treasury Regulations, FATCA withholding currently will not apply to gross proceeds from the sale or other disposition of our Common Stock. The preamble to the foregoing proposed U.S. Treasury Regulations states that taxpayers may rely on them pending their finalization.

Prospective investors should consult their tax advisors regarding the potential application of withholding under FATCA to their investment in our Common Stock.

We have entered into the sales agreement with A.G.P. under which we may issue and sell shares of our Common Stock from time to time (subject to a maximum gross sales price equal to one-third of our public float as limited by General Instruction I.B.6. of SEC Form S-3, so long as our public float remains under $75.0 million) to or through A.G.P., acting as our sales agent. The sales of our Common Stock, if any, under this prospectus will be made at market prices by any method deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on the NYSE American, on any other existing trading market for our Common Stock, or to or through a market maker.

Each time that we wish to issue and sell shares of our Common Stock under the sales agreement, we will provide A.G.P. with a placement notice describing the amount of shares to be sold, the time period during which sales are requested to be made, any limitation on the amount of shares of Common Stock that may be sold in any single day, any minimum price below which sales may not be made or any minimum price requested for sales in a given time period and any other instructions relevant to such requested sales. Upon receipt of a placement notice, A.G.P., acting as our sales agent, will use commercially reasonable efforts, consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the NYSE American, to sell shares of our Common Stock under the terms and subject to the conditions of the placement notice and the sales agreement. We or A.G.P. may suspend the offering of Common Stock pursuant to a placement notice upon notice and subject to other conditions.

Settlement for sales of Common Stock, unless the parties agree otherwise, will occur on the second trading day following the date on which any sales are made in return for payment of the net proceeds to us. There are no arrangements to place any of the proceeds of this offering in an escrow, trust or similar account. Sales of our Common Stock as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means as we and A.G.P. may agree upon.

We will pay A.G.P. commissions for its services in acting as our sales agent in the sale of our Common Stock pursuant to the sales agreement. A.G.P. will be entitled to compensation at a fixed commission rate of 3% of the gross proceeds from the sale of our Common Stock on our behalf pursuant to the sales agreement. We have also agreed to reimburse A.G.P. for certain specified expenses incurred by A.G.P., including the fees and disbursements of its legal counsel incurred by A.G.P. in connection with entering into the sales agreement in an amount not to exceed $40,000, plus up to $10,000 per future year for other expenses after the date of this prospectus in connection with its further periodic due diligence investigation of our company in connection with this offering. We estimate that the total expenses of the offering payable by us, excluding discounts, commissions and reimbursements payable to A.G.P. under the sales agreement, will not exceed approximately $350,000. The remaining sales proceeds, after deducting any expenses payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory organization in connection with the sales, will equal our net proceeds for the sale of such Common Stock.

Because there are no minimum sale requirements as a condition to this offering, the actual total public offering price, commissions and net proceeds to us, if any, are not determinable at this time. The actual dollar amount and number of shares of Common Stock we sell through this prospectus will be dependent, among other things, on market conditions and our capital raising requirements.

We will report at least quarterly the number of shares of Common Stock sold through A.G.P. under the sales agreement, the net proceeds to us and the compensation paid by us to A.G.P. in connection with the sales of Common Stock under the sales agreement.

In connection with the sale of the Common Stock on our behalf, A.G.P. will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of A.G.P. will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to A.G.P. against certain civil liabilities, including liabilities under the Securities Act.

A.G.P. will not engage in any market making activities involving our Common Stock while the offering is ongoing under this prospectus if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Securities Act. As our sales agent, A.G.P. will not engage in any transactions that stabilizes our Common Stock.

The offering pursuant to the sales agreement will terminate upon the earlier of (i) the sale of all shares of Common Stock subject to the agreement and (ii) termination of the sales agreement as permitted therein. We may terminate the sales agreement in our sole discretion at any time by giving 10 days’ prior notice to A.G.P. A.G.P. may terminate the sales agreement under the circumstances specified in the sales agreement and in its sole discretion at any time by giving 10 days’ prior notice to us.

The sales agreement has been filed as an exhibit to a current report on Form 8-K that we filed with the Commission in connection with this offering and is incorporated into this prospectus by reference.

A.G.P. and its affiliates have provided, and may in the future provide, investment banking, commercial banking and other financial services for us in the ordinary course of business, for which services that may in the future receive customary fees.

This prospectus in electronic format may be made available on a website maintained by A.G.P., and A.G.P. may distribute this prospectus electronically.

The validity of the shares of Common Stock offered by this prospectus will be passed upon by Stroock & Stroock & Lavan LLP, New York, New York. A.G.P. / Alliance Global Partners is being represented in connection with this offering by Bevilacqua PLLC, Washington, D.C.

The consolidated financial statements of the Company as of September 30, 2020, and for the fiscal year ended September 30, 2020, included in our Annual Report on Form 10-K, have been incorporated by reference herein in reliance upon the report of Weaver and Tidwell, L.L.P., an independent registered public accounting firm, and upon the authority of said firm as experts in accounting and auditing.

The audit report covering the September 30, 2020 consolidated financial statements contains an explanatory paragraph that states that our recurring losses from operations and accumulated deficit raise substantial doubt about our ability to continue as a going concern.  The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty.

The consolidated financial statements of the Company as of September 30, 2019, and for the year  ended September 30, 2019, have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The Company has agreed to indemnify and hold KPMG LLP harmless against and from any and all legal costs and expenses incurred by KPMG LLP in successful defense of any legal action or proceeding that arises as a result of KPMG LLP’s consent to the incorporation by reference of its audit report on the Company’s past financial statements incorporated by reference in this registration statement.

The following documents, which have previously been filed by us with the SEC under the Exchange Act, are incorporated herein by reference:

All documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any information furnished pursuant to Item 2.02 or Item 7.01 on any current report on Form 8-K and any corresponding information furnished under Item 9.01 or included as an exhibit) after the date of the initial Registration Statement of which this prospectus forms a part and until the termination of the offering under this prospectus shall be deemed to be incorporated in this prospectus by reference and to be a part hereof from the date of filing of such documents. Any statement contained herein, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.

You may request a free copy of these filings, other than any exhibits, unless the exhibits are specifically incorporated by reference into this prospectus, by writing or telephoning us at the following address:

We are subject to the informational requirements of the Exchange Act and in accordance therewith, file reports, proxy statements and other information with the SEC. These reports, proxy statements and other information can be inspected and copied at the SEC’s Public Reference room at 100 F Street, N.E., Washington, D.C. 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains an Internet site at www.sec.gov that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. We maintain a website at www.brninc.com. Information on our website or any other website is not incorporated by reference into this prospectus and does not constitute part of this prospectus. Please note that information contained in our website, whether currently posted or posted in the future, is not a part of this prospectus or the documents incorporated by reference in this prospectus.

The following table sets forth the various expenses, all of which will be borne by us, in connection with the sale and distribution of the securities being registered, other than the underwriting discounts, commissions, and expenses. All amounts shown are estimates except for the Securities and Exchange Commission registration fee

Section 102 of the General Corporation Law of the State of Delaware, amended from time to time (the “Delaware Law”) permits a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant’s certificate of incorporation provides that no director of the Registrant shall be personally liable to it or its stockholders for monetary damages for any breach of fiduciary duty as director, notwithstanding any provision of law imposing such liability, except to the extent that the Delaware Law prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.

Section 145 of the Delaware Law provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

The Registrant’s certificate of incorporation provides that the Registrant will indemnify each director of the Registrant in accordance with Section 145 of the Delaware Law.

The Registrant’s amended and restated by-laws provide for the indemnification of the officers and directors of the Registrant to the full extent permitted by applicable law against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with an action, suit or proceeding by reason of the fact that such person is or was a director, officer, employee, fiduciary or agent of the Registrant, or is or was serving at the request of the Registrant as a director, officer, trustee, fiduciary, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.

(a) The undersigned registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Honolulu, State of Hawaii, on March 16, 2021.

We the undersigned officers and directors of Barnwell Industries, Inc., hereby, severally constitute and appoint Alexander C. Kinzler and Russell M. Gifford, each of them singly, our true and lawful attorneys with full power to them and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-3 filed herewith and any and all pre-effective and post-effective amendments to said registration statement and any subsequent registration statement for the same offering which may be filed under Rule 462(b) and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Barnwell Industries, Inc. to comply with the provisions of the Securities Act of 1933, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto or to any subsequent registration statement for the same offering which may be filed under Rule 462(b).

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 3/16/21  Barnwell Industries Inc.          8-K:1,9     3/16/21    2:203K                                   Broadridge Fin’l So… Inc
 2/16/21  Barnwell Industries Inc.          10-Q       12/31/20   69:6.1M
 2/10/21  Barnwell Industries Inc.          8-K:2,9     2/10/21    2:97K                                    Stroock & Stro… Lavan/FA
 2/01/21  Barnwell Industries Inc.          8-K:1,8,9   1/27/21   12:366K                                   Broadridge Fin’l So… Inc
 1/27/21  Barnwell Industries Inc.          10-K/A      9/30/20   12:358K                                   Broadridge Fin’l So… Inc
12/16/20  Barnwell Industries Inc.          10-K        9/30/20   95:13M
 1/14/20  Barnwell Industries Inc.          8-K:5,8     1/10/20    2:131K                                   Stroock & Stro… Lavan/FA