MARYLAND | | | 13-2755856 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification No.) |
Large accelerated filer | | | ☐ | | | | | Accelerated filer | | | ☐ | |
Non-accelerated filer | | | ☒ | | | | | Smaller reporting company | | | ☒ | |
| | | | | | Emerging growth company | | | ☐ |
• | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2021 filed on March 16, 2022 (the “Annual Report”); |
• | The information specifically incorporated by reference into the Annual Report from our proxy statement filed on April 21, 2022; |
• | Our Quarterly Report on Form 10-Q for the period ended March 31, 2022, filed on May 10, 2022; |
• | Our Current Reports on Form 8-K filed on January 11, 2022, February 10, 2022, March 18, 2022, April 12, 2022, June 10, 2022 and June 14, 2022; |
• | The description of our stock included in Exhibit 4.1 to our Annual Report, including any subsequent amendments and reports filed for the purpose of updating such description; and |
• | All other reports filed by us pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since December 31, 2021. |
• | the impact of the COVID-19 pandemic and the governmental and non-governmental responses thereto; |
• | general economic and business conditions and developments, including those currently affecting or that may affect our economy, such as the outbreak of hostilities between Russia and Ukraine; |
• | the availability of, and costs associated with, sources of capital and liquidity; |
• | accessibility of debt and equity capital markets; |
• | general and local real estate conditions, including any changes in the value of our real estate; |
• | changes in Federal, state and local governmental laws and regulations, including laws and regulations relating to taxes and real estate and related investments; |
• | the level and volatility of interest rates; |
• | challenges in acquiring properties (including challenges in buying the interests of joint venture partners and buying properties directly without the participation of joint venture partners), which acquisitions may not be completed or may not produce the cash flows or income expected; |
• | the competitive environment in which we operate, including competition that could adversely affect our ability to acquire properties and/or limit our ability to lease apartments or increase or maintain rental income; |
• | a limited number of multi-family property acquisition opportunities acceptable to us; |
• | the concentration of our multi-family properties are concentrated in the Southeastern United States and Texas, which makes us more susceptible to adverse developments in those markets; |
• | risks associated with acquiring value-add multi-family properties, which involves greater risks than more conservative approaches; |
• | the condition of Fannie Mae or Freddie Mac, which could adversely impact us; |
• | our failure to comply with laws, including those requiring access to our properties by disabled persons, which could result in substantial costs; |
• | insufficient cash flows, which could limit our ability to make required payments on our debt obligations; |
• | impairment in the value of real estate we own; |
• | failure of property managers to properly manage properties; |
• | disagreements with, or misconduct by, joint venture partners; |
• | decreased rental rates or increasing vacancy rates; |
• | our ability to lease units in newly acquired or newly constructed multi-family properties; |
• | potential defaults on or non-renewal of leases by tenants; |
• | development and acquisition risks, including rising or unanticipated costs and failure of such acquisitions and developments to perform in accordance with projections; |
• | creditworthiness of tenants; |
• | our ability to obtain financing for acquisitions; |
• | the timing of acquisitions and dispositions; |
• | our ability to reinvest the net proceeds of dispositions into more, or as favorable, acquisition opportunities; |
• | potential natural disasters such as hurricanes, tornadoes and floods; |
• | board determinations as to timing and payment of dividends, if any, and our ability or willingness to pay future dividends; |
• | financing risks, including the risks that our cash flows from operations may be insufficient to meet required debt service obligations and we may be unable to refinance our existing debt upon maturity or obtain new financing on attractive terms or at all; |
• | lack of or insufficient amounts of insurance to cover, among other things, losses from catastrophes; |
• | our ability to maintain our qualification as a REIT; |
• | possible environmental liabilities, including costs, fines or penalties that may be incurred due to necessary remediation of contamination of properties presently owned or previously owned by us or a subsidiary owned by us or acquired by us; |
• | our dependence on information systems; |
• | risks associated with breaches of our data security; |
• | risks associated with the stock ownership restrictions imposed by the Internal Revenue Code of 1986, as amended, for REITs and the stock ownership limit imposed by our charter; |
• | increases in real estate taxes at properties we acquire due to such acquisitions or other factors; and |
• | other risks detailed from time-to-time in our reports filed with the SEC. |
• | provide for a staggered board of directors consisting of three classes, with one class of directors being elected each year and each class being elected for three-year terms and until their successors are duly elected and qualify; |
• | impose restrictions on ownership and transfer of our stock (such provisions being intended to, among other purposes, facilitate our compliance with certain requirements under the Internal Revenue Code of 1986, as amended (the “Code”), relating to our qualification as a REIT under the Code); |
• | prevent our stockholders from amending the Bylaws; |
• | limit who may call special meetings of stockholders; |
• | establish advance notice and informational requirements and time limitations on any director nomination or proposal that a stockholder wishes to make at a meeting of stockholders; |
• | provide that directors may be removed only for cause and only by the vote of at least two-thirds of all votes generally entitled to be cast in the election of directors; |
• | do not permit cumulative voting in the election of our board of directors, which would otherwise permit holders of less than a majority of outstanding shares to elect one or more directors; and |
• | authorize our board of directors, without stockholder approval, to amend the Charter to increase or decrease the aggregate number of shares of our stock or the number of shares of stock of any class or series that we have authority to issue and classify or reclassify any unissued shares of common or preferred stock and set the preferences, rights and other terms of the classified or reclassified shares. |
• | “business combination” provisions that, subject to certain exceptions and limitations, prohibit certain business combinations between us and an “interested stockholder” (defined generally as any person who beneficially owns 10% or more of the voting power of our outstanding voting stock or an affiliate or associate of BRT who, at any time within the two-year period immediately prior to the date in question, was the beneficial owner of 10% or more of the voting power of our then outstanding voting stock) or an affiliate thereof for five years after the most recent date on which the stockholder becomes an interested stockholder, and thereafter impose two super-majority stockholder voting requirements on these combinations; |
• | “control share” provisions that provide that, subject to certain exceptions, holders of “control shares” of BRT (defined as voting shares which, when aggregated with other shares controlled by the |
• | additionally, Title 3, Subtitle 8 of the MGCL permits our board of directors, without stockholder approval and regardless of what is currently provided in the Charter or the Bylaws, to implement certain corporate governance provisions. See “Certain Provisions of Maryland Law and of our Charter and Bylaws.” |
• | any person from beneficially or constructively owning, applying certain attribution rules of the Code, shares of our stock that would result in our being “closely held” under Section 856(h) of the Code (without regard to whether the ownership interest is held during the last half of a taxable year) or otherwise cause us to fail to qualify as a REIT under the Code; and |
• | any person from transferring shares of our stock if the transfer would result in shares of our stock being beneficially owned by fewer than 100 persons (determined under the principles of Section 856(a)(5) of the Code). |
• | the title of the warrants; |
• | the designation, amount and terms of the securities for which the warrants are exercisable; |
• | the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each other security; |
• | the price or prices at which the warrants will be issued; |
• | the aggregate number of warrants; |
• | any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants; |
• | the price or prices at which the securities purchasable upon exercise of the warrants may be purchased; |
• | the date on which the right to exercise the warrants will commence, and the date on which the right will expire; |
• | if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable; |
• | if applicable, a discussion of certain material U.S. federal income tax considerations applicable to the warrants; |
• | any other terms of the warrants, including terms, procedures and limitations relating to the redemption, exchange and exercise of the warrants; |
• | the maximum or minimum number of warrants that may be exercised at any time; and |
• | information with respect to book-entry procedures, if any. |
• | the price, if any, for the subscription rights; |
• | the exercise price payable for each common share, preferred share or other security upon the exercise of the subscription rights; |
• | the number of subscription rights issued to each securityholder; |
• | the number and terms of the common shares, preferred shares or other securities which may be purchased per each subscription right; |
• | the extent to which the subscription rights are transferable; |
• | any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of the subscription rights; |
• | the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire; |
• | the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; and |
• | if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of subscription rights. |
• | any person who beneficially owns, directly or indirectly, 10% or more of the voting power of the corporation’s outstanding voting stock; or |
• | an affiliate or associate of the corporation who, at any time within the two-year period before the date in question, was the beneficial owner of 10% or more of the voting power of the then-outstanding voting stock of the corporation. |
• | 80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation; and |
• | two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder with whom (or with whose affiliate) the business combination is to be effected or held by an affiliate or associate of the interested stockholder. |
• | a classified board; |
• | a two-thirds vote requirement for removing a director; |
• | a requirement that the number of directors be fixed only by vote of the board of directors; |
• | a requirement that a vacancy on the board be filled only by the remaining directors and for the remainder of the full term of the class of directors in which the vacancy occurred; or |
• | a majority requirement for the calling of a special meeting of shareholders. |
• | the act or omission of the director or officer was material to the matter giving rise to the proceeding and (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty; |
• | the director or officer actually received an improper personal benefit in money, property or services; or |
• | in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
• | a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and |
• | a written undertaking by the director or officer or on the director’s or officer’s behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director or officer did not meet the standard of conduct. |
• | any present or former director or officer of ours who is made or threatened to be made a party to, or witness in a proceeding by reason of his or her service in such capacity; and |
• | any individual who, while a director or officer of ours and at our request, serves or has served as a director, officer, trustee, member, manager, or partner of another corporation, real estate investment trust, limited liability company, partnership, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to, or witness in a proceeding by reason of his or her service in such capacity; |
• | in either case, from and against any claim or liability to which such person may become subject or which such person may incur by reason of his or her service in such capacity. |
• | the tax consequences to you may vary depending on your particular tax situation; |
• | you may be a person that is subject to special tax treatment or special rules under the Code (e.g., regulated investment companies, insurance companies, tax-exempt entities, financial institutions or broker-dealers, expatriates, persons subject to the alternative minimum tax and partnerships, trusts, estates or other pass-through entities) that the discussion below does not address; |
• | the discussion below does not address any state, local or non-U.S. tax considerations; and |
• | the discussion below deals only with stockholders that hold shares of our capital stock as a “capital asset,” within the meaning of Section 1221 of the Code. |
• | First, we would be taxed at regular corporate rates on any of our undistributed REIT taxable income, including our undistributed net capital gains (although, to the extent so designated by us, stockholders would receive an offsetting credit against their own U.S. federal income tax liability for U.S. federal income taxes paid by us with respect to any such gains). |
• | Second, if we have (a) net income from the sale or other disposition of “foreclosure property,” which is, in general, property acquired on foreclosure or otherwise on default on a loan secured by such real property or a lease of such property, which is held primarily for sale to customers in the ordinary course of business or (b) other nonqualifying income from foreclosure property, we will be subject to tax at the highest corporate rate on such income. |
• | Third, if we have net income from prohibited transactions such income will be subject to a 100% tax. Prohibited transactions are, in general, certain sales or other dispositions of property held primarily for sale to customers in the ordinary course of business other than foreclosure property. |
• | Fourth, if we should fail to satisfy the annual 75% gross income test or 95% gross income test (as discussed below), but nonetheless maintain our qualification as a REIT under the Code because certain other requirements have been met, we will have to pay a 100% tax on an amount equal to (a) the gross income attributable to the greater of (i) 75% of our gross income over the amount of gross income that is qualifying income for purposes of the 75% test, and (ii) 95% of our gross income (90% for taxable years beginning on or before October 22, 2004) over the amount of gross income that is qualifying income for purposes of the 95% test, multiplied by (b) a fraction intended to reflect our profitability. |
• | Fifth, if we should fail to distribute during each calendar year at least the sum of (i) 85% of our REIT ordinary income for such year, (ii) 95% of our REIT capital gain net income for such year, and (iii) any undistributed taxable income required to be distributed from prior years, we would be subject to a 4% excise tax on the excess of such required distribution over the amount actually distributed by us. |
• | Sixth, if we were to acquire an asset from a corporation that is or has been a subchapter C corporation in a transaction in which the basis of the asset in our hands is determined by reference to the basis of the asset in the hands of the subchapter C corporation, and we subsequently recognize gain on the disposition of the asset within the five year period beginning on the day that we acquired the asset, then we will have to pay tax on the built-in gain at the highest regular corporate rate. The results described in this paragraph assume that no election will be made under Treasury Regulations Section 1.337(d)-7 for the subchapter C corporation to be subject to an immediate tax when the asset is acquired. |
• | Seventh, for taxable years beginning after December 31, 2000, we could be subject to a 100% tax on certain payments that we receive from one of our taxable REIT subsidiaries (“TRSs”), or on certain expenses deducted by one of our TRSs, if the economic arrangement between us, the TRS and the tenants at our properties are not comparable to similar arrangements among unrelated parties. |
• | Eighth, if we fail to satisfy a REIT asset test, as described below, during our 2005 and subsequent taxable years, due to reasonable cause and we nonetheless maintain our REIT qualification under the Code because of specified cure provisions, we will generally be required to pay a tax equal to the greater of $50,000 or the highest corporate tax rate multiplied by the net income generated by the nonqualifying assets that caused us to fail such test. |
• | Ninth, if we fail to satisfy any provision of the Code that would result in our failure to qualify as a REIT (other than a violation of the REIT gross income tests or a violation of the asset tests described below) during our 2005 and subsequent taxable years and the violation is due to reasonable cause, we may retain our REIT qualification but will be required to pay a penalty of $50,000 for each such failure. |
• | Tenth, we may be required to pay monetary penalties to the IRS in certain circumstances, including if we fail to meet record-keeping requirements intended to monitor our compliance with rules relating to the composition of a REIT’s stockholders. |
• | Finally, the earnings of our lower-tier entities that are subchapter C corporations, including TRSs but excluding our QRSs (as defined below), are subject to federal corporate income tax. |
(1) | that is managed by one or more trustees or directors; |
(2) | the beneficial ownership of which is evidenced by transferable shares, or by transferable certificates of beneficial interest; |
(3) | that would otherwise be taxable as a domestic corporation, but for Sections 856 through 859 of the Code; |
(4) | that is neither a financial institution nor an insurance company to which certain provisions of the Code apply; |
(5) | the beneficial ownership of which is held by 100 or more persons; |
(6) | during the last half of each taxable year, not more than 50% in value of the outstanding capital stock of which is owned, directly or constructively, by five or fewer individuals, as defined in the Code to include certain entities; |
(7) | that uses a calendar year for federal income tax purposes and complies with the recordkeeping requirements of the federal income tax laws; and |
(8) | that meets certain other tests, described below, regarding the nature of its income and assets. |
• | First, at least 75% of our gross income, excluding gross income from prohibited transactions and certain “hedging transactions” entered into after July 30, 2008, for each taxable year must be derived directly or indirectly from investments relating to real property or mortgages on real property, including “rents from real property,” gains on the disposition of real estate, dividends paid by another REIT and interest on obligations secured by mortgages on real property or on interests in real property, or from some types of temporary investments. |
• | Second, at least 95% of our gross income, excluding gross income from prohibited transactions and, commencing with our 2005 taxable year, certain “hedging transactions,” for each taxable year must be derived from any combination of income qualifying under the 75% test and dividends, interest, and gain from the sale or disposition of stock or securities. |
• | such rent must not be based in whole or in part on the income or profits derived by any person from the property (although the rent may be based on a fixed percentage of receipts or sales); |
• | such rent may not be received or accrued, directly or indirectly, from any person if the REIT owns, directly or indirectly (including by attribution, upon the application of certain attribution rules): (i) in |
• | the portion of such rent that is attributable to personal property for a taxable year that is leased under, or in connection with, a lease of real property may not exceed 15% of the total rent received or accrued under the lease for the taxable year. |
• | the REIT has held the property for not less than two years; |
• | the aggregate capital expenditures made by the REIT, or any partner of the REIT, during the two-year period preceding the date of the sale that are includable in the basis of the property do not exceed 30% of the selling price of the property; |
• | either (1) during the year in question, the REIT did not make more than seven sales of property other than foreclosure property or sales to which Section 1033 of the Code applies, (2) the aggregate adjusted bases of all such properties sold by the REIT during the year did not exceed 10% of the aggregate bases of all of the assets of the REIT at the beginning of the year or (3) for sales made after July 30, 2008, the aggregate fair market value of all such properties sold by the REIT during the year did not exceed 10% of the aggregate fair market value of all of the assets of the REIT at the beginning of the year; |
• | in the case of property not acquired through foreclosure or lease termination, the REIT has held the property for at least two years for the production of rental income; and |
• | if the REIT has made more than seven sales of non-foreclosure property during the taxable year, substantially all of the marketing and development expenditures with respect to the property were made through an independent contractor from whom the REIT derives no income. |
• | our failure to meet these tests was due to reasonable cause and not due to willful neglect; and |
• | we attach a schedule of the nature and amount of each item of income to our U.S. federal income tax return. |
• | at least 75% of the value of our total assets must be represented by “real estate assets” (which also includes any property attributable to the temporary investment of new capital, but only if such property is stock or a debt instrument and only for the 1-year period beginning on the date the REIT receives such proceeds), cash and cash items (including receivables) and government securities (“75% Value Test”); |
• | not more than 25% of the value of our total assets may be represented by securities other than securities that constitute qualifying assets for purposes of the 75% Value Test; |
• | except with respect to securities of a TRS or QRS and securities that constitute qualifying assets for purposes of the 75% Value Test: |
- | not more than 5% of the value of our total assets may be represented by securities of any one issuer the “5% Value Test”); |
- | we may not hold securities possessing more than 10% of the total voting power of the outstanding securities of any one issuer (the “10% Vote Test”); and |
- | we may not hold securities having a value of more than 10% of the total value of the outstanding securities of any one issuer (“10% Value Test”); |
• | for taxable years beginning after December 31, 2015, not more than 25% of the value of our total assets may be represented by debt instruments of publicly offered REITs unless it would otherwise be treated as a real estate asset for purposes of the 75% Value Test. |
• | If we fail to satisfy the Asset Tests at the end of a calendar quarter, we will not lose our REIT qualification if: |
– | we satisfied the Asset Tests at the end of the preceding calendar quarter; and |
– | the discrepancy between the value of our assets and the Asset Test requirements arose from changes in the market values of our assets and was not wholly or partly caused by the acquisition of one or more non-qualifying assets. |
• | the dividends are declared in October, November or December and are made payable to stockholders of record on a specified date in any of these months, and such dividends are actually paid during January of the following year; or |
• | the dividends are declared before we timely file our U.S. federal income tax return for such year, the dividends are paid in the 12-month period following the close of the year and not later than the first regular dividend payment after the declaration, and we elect on our U.S. federal income tax return for such year to have a specified amount of the subsequent dividend treated as if paid in such year. |
• | 85% of our ordinary income for such year; |
• | 95% of our capital gain net income for such year; and |
• | any undistributed taxable income required to be distributed from prior periods. |
• | a citizen or resident of the United States; |
• | a corporation (including an entity treated as a corporation for federal income tax purposes) created or organized under the laws of the United States, any of its states or the District of Columbia; |
• | an estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
• | a trust if a court within the United States can exercise primary supervision over the administration of the trust, and one or more United States persons have the authority to control all substantial decisions of the trust. |
• | dividend payments; and |
• | the payment of the proceeds from the sale of shares of our capital stock effected at a United States office of a broker, as long as the income associated with these payments is otherwise exempt from U.S. federal income tax, and provided that the following additional requirements are met: |
- | the payor or broker does not have actual knowledge or reason to know that you are a United States person and you have furnished to the payor or broker either (i) a valid IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or an acceptable substitute form upon which you certify, under penalties of perjury, that you are a non-United States person or (ii) other documentation upon which it may rely to treat the payments as made to a non-United States person in accordance with Treasury Regulations; or |
- | you otherwise establish your right to an exemption. |
• | the proceeds are transferred to an account maintained by you in the United States; |
• | the payment of proceeds or the confirmation of the sale is mailed to you at a United States address; or |
• | the sale has some other specified connection with the United States as provided in the Treasury Regulations, unless the broker does not have actual knowledge or reason to know that you are a United States person and the documentation requirements described above are met or you otherwise establish an exemption. |
• | a controlled foreign corporation for United States tax purposes; |
• | a foreign person 50% or more of whose gross income is effectively connected with the conduct of a United States trade or business for a specified three-year period; or |
• | a foreign partnership, if at any time during its taxable year: |
• | one or more of its partners are “U.S. persons,” as defined in Treasury Regulations, who in the aggregate hold more than 50% of the income or capital interest in the partnership; or |
• | such foreign partnership is engaged in the conduct of a United States trade or business; |
• | unless the broker does not have actual knowledge or reason to know that you are a United States person and the documentation requirements described above are met or you otherwise establish your right to an exemption. Backup withholding will apply if the sale is subject to information reporting and the broker has actual knowledge that you are a United States person. |
• | block transactions (which may involve crosses) and transactions on the New York Stock Exchange or any other organized market where the securities may be traded; |
• | purchases by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement; |
• | ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
• | sales “at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise; and |
• | sales in other ways not involving market makers or established trading markets, including direct sales to purchasers. |
Item 14. | Other Expenses of Issuance and Distribution. |
SEC Registration Fee | | | $13,905 |
Accounting Fees(1) | | | $5,000 |
Legal Fees and Disbursements(1) | | | $10,000 |
Printing Fees(1) | | | $5,000 |
Miscellaneous(1) | | | $1,095 |
Total: | | | $35,000 |
(1) | Does not include expenses of preparing any accompanying prospectus supplements, listing fees, transfer agent fees and other expenses related to offerings of particular securities. |
Item 15. | Indemnification of Officers and Directors. |
• | the act or omission of the director or officer was material to the matter giving rise to the proceeding and (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty; |
• | the director or officer actually received an improper personal benefit in money, property or services; or |
• | in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
• | a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and |
• | a written undertaking by the director or officer or on the director’s or officer’s behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director or officer did not meet the standard of conduct. |
• | any present or former director or officer of ours who is made or threatened to be made a party to, or witness in a proceeding by reason of his or her service in such capacity; and |
• | any individual who, while a director or officer of ours and at our request, serves or has served as a director, officer, trustee, member, manager, or partner of another corporation, real estate investment trust, limited liability company, partnership, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to, or witness in a proceeding by reason of his or her service in such capacity; |
• | in either case, from and against any claim or liability to which such person may become subject or which such person may incur by reason of his or her service in such capacity. |
Item 16. | Exhibits. |
Item 17. | Undertakings. |
(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: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(B) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(C) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
Exhibit No. | | | Description of Exhibit |
1.1 | | | Form of Underwriting Agreement for common stock, preferred stock, warrants or subscription rights.** |
| | Plan of Conversion dated December 8, 2016 (incorporated by reference to Annex B of Amendment No. 1 to our Registration Statement on Form S-4 filed January 12, 2017 (the “S-4 Registration”) (Reg. No. 333-215221). | |
| | Articles of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed March 20, 2017). | |
| | By-laws of the Registrant (incorporated by reference to Exhibit 3.2 to our Current Report on Form 8-K filed March 20, 2017). | |
4.1 | | | Form of board of director resolutions with respect to any preferred shares to be issued .** |
4.2 | | | Form of warrant agreement.** |
4.3 | | | Form of subscription rights agreement.** |
| | Opinion of Dentons US LLP with respect to the legality of the securities being issued.* | |
| | Tax Opinion of Dentons US LLP.* | |
23.1 | | | |
| | Consent of Ernst & Young LLP, independent registered public accounting firm.* | |
| | Powers of Attorney (included on the signature page of this Registration Statement).* | |
| | Filing Fee Table |
* | Filed herewith. |
** | Incorporated by reference to a future filing to be made in connection with the offering of the securities. |
| | BRT APARTMENTS CORP. | ||||
| | | | |||
| | By: | | | /s/ Jeffrey A. Gould | |
| | | | Jeffrey A. Gould | ||
| | | | Chief Executive Officer and President |
Signature | | | Title |
| | ||
/s/ Israel Rosenzweig | | | Chairman of the Board of Directors |
Israel Rosenzweig | | ||
| | ||
/s/ Jeffrey A. Gould | | | President, Chief Executive Officer and Director (principal executive officer) |
Jeffrey A. Gould | | ||
| | ||
/s/ Carol Cicero | | | Director |
Carol Cicero | | | |
| | ||
/s/ Alan H. Ginsburg | | | Director |
Alan H. Ginsburg | | | |
| | ||
/s/ Fredric H. Gould | | | Director |
Fredric H. Gould | | | |
| | ||
/s/ Matthew J. Gould | | | Director |
Matthew J. Gould | | | |
| |
Signature | | | Title |
/s/ Louis C. Grassi | | | Director |
Louis C. Grassi | | | |
| | ||
/s/ Gary Hurand | | | Director |
Gary Hurand | | | |
| | ||
/s/ Jeffrey Rubin | | | Director |
Jeffrey Rubin | | | |
| | ||
/s/ Jonathan H. Simon | | | Director |
Jonathan H. Simon | | | |
| | ||
/s/ Elie Weiss | | | Director |
Elie Weiss | | | |
| | ||
/s/ George E. Zweier | | | Chief Financial Officer and Vice President (Principal Financial and Accounting Officer) |
George E. Zweier | |
|
Dentons US LLP
1221 Avenue of the Americas
New York, NY 10020-1089 P +1 212 768 6700 F +1 212 768 6800
United States |
大成 Salans FMC SNR Denton McKenna Long
dentons.com
|
1. |
the Registration Statement;
|
2. |
the Articles of Incorporation of the Company, as amended and restated to date (as so amended and restated, the “Articles of Incorporation”);
|
3. |
the By-Laws of the Company, as amended to date (as so amended, the “Bylaws”);
|
4. |
corporate proceedings of the Company relating to its proposed issuance of the Securities; and
|
5. |
such other instruments and documents as we have deemed relevant or necessary in connection with our opinions set forth herein.
|
|
BRT Apartments Corp. June 14, 2022 Page 2 |
大成 Salans FMC SNR Denton McKenna Long
dentons.com
|
|
BRT Apartments Corp. June 14, 2022 Page 3 |
大成 Salans FMC SNR Denton McKenna Long
dentons.com
|
1. |
When (i) the Registration Statement has become effective under the Securities Act and (ii) an issuance of the Common Stock has been duly authorized by the Company and, upon issuance
and delivery of the Common Stock against payment therefor in accordance with the terms of such corporate proceeding taken by the Company and any applicable underwriting agreement or purchase agreement, and as contemplated by the
Registration Statement and/or the applicable prospectus supplement, or upon the exercise of any Warrants to purchase Common Stock in accordance with the terms thereof, or conversion or exchange of Preferred Stock that, by its terms, is
convertible into or exchangeable for Common Stock, or upon the exercise of any Rights to purchase Common Stock in accordance with the terms thereof and receipt by the Company of any additional consideration payable upon such conversion,
exchange or exercise, as applicable, the shares of Common Stock will be validly issued, fully paid and non-assessable
|
2. |
When (i) the Registration Statement has become effective under the Securities Act, (ii) a series of Preferred Stock has been duly authorized and established by the Company in
accordance with the terms of the Articles of Incorporation, the By-Laws and applicable law, (iii) appropriate Articles Supplementary setting forth the number of shares and the terms of any class or series of Preferred Stock to be issued
by the Company have been filed with and accepted for record by the State Department of Assessments and Taxation of Maryland and (iv) the issuance of such series of Preferred Stock has been appropriately authorized by the Company and, upon
issuance and delivery of such series of Preferred Stock against payment therefor in accordance with the terms of such corporate proceeding taken by the Company and any applicable underwriting agreement or purchase agreement, and as
contemplated by the Registration Statement and/or the applicable prospectus supplement, or upon the exercise of any Warrants for such series of Preferred Stock in accordance with the terms thereof, or upon the exercise of any Rights for
Preferred Stock in accordance with the terms thereof and receipt by the Company of any additional consideration payable upon conversion, exchange or exercise, as applicable, such series of Preferred Stock will be validly issued, fully
paid and non-assessable.
|
3. |
When (i) the Registration Statement has become effective under the Securities Act, (ii) the Warrants and, if applicable, a warrant agreement conforming to the description thereof in
the Registration Statement and/or the applicable prospectus supplement have been duly authorized by the Company and any such warrant agreement has been delivered by the Company and the warrant agent named therein and (iii) Warrants
conforming to the requirements of any related warrant agreement have been duly authenticated by the applicable warrant agent and the Warrants have been duly executed and delivered on behalf of the Company against payment therefor in
accordance with the terms of such corporate proceeding taken by the Company, any applicable underwriting agreement or purchase agreement and any applicable warrant agreement, and as contemplated by the Registration Statement and/or the
applicable prospectus supplement, the Warrants will constitute valid and binding obligations of the Company, enforceable in accordance with their terms.
|
|
BRT Apartments Corp. June 14, 2022 Page 4 |
大成 Salans FMC SNR Denton McKenna Long
dentons.com
|
4. |
When (i) the Registration Statement has become effective under the Securities Act and (ii) the Rights and, if applicable, a standby underwriting agreement conforming to the
description thereof in the Registration Statement and/or the applicable prospectus supplement have been duly authorized by the Company and any such standby underwriting agreement has been delivered by the Company and the underwriter(s)
named therein, and assuming (a) that the terms of the Rights are as described in the Registration Statement and/or the applicable prospectus supplement, (b) that the terms of the Rights do not violate any law applicable to the Company or
result in a default under or breach of any agreement or instrument binding upon the Company and (c) that the Rights are then issued as contemplated in the Registration Statement and/or the applicable prospectus supplement, the Rights will
constitute valid and binding obligations of the Company, enforceable in accordance with their terms.
|
Very truly yours,
|
|
/s/ Dentons US LLP
|
|
Dentons US LLP
|
|
Dentons US LLP
1221 Avenue of the Americas New York, NY 10020-1089 United States dentons.com
|
BRT Apartments Corp.
60 Cutter Mill Road
Great Neck, NY 11021
|
|
June 14, 2022
Page 2 of 3 |
|
June 14, 2022
Page 3 of 3 |
|
Very truly yours
/s/ Dentons US LLP
Dentons US LLP |
Security Type
|
Security Class
Title(1)
|
Fee
Calculation
Rule
|
Amount
Registered(2)
|
Proposed
Maximum
Offering
Price Per
Unit
|
Maximum
Aggregate Offering
Price
|
Fee Rate
|
Amount of
Registration
Fee
|
Equity(1)
|
Common stock, par value
$0.01 per share
|
_
|
_
|
_
|
_
|
_
|
|
Equity(1)
|
Preferred stock, par value
$0.01 per share
|
_
|
_ |
_
|
_
|
_
|
_
|
Other(1)
|
Warrants
|
_
|
_
|
_
|
_
|
_
|
_
|
Other(1)
|
Subscription Rights
|
_
|
_
|
_
|
_
|
_
|
_
|
Unallocated
(Universal)
Shelf
|
Rule 457(o)
|
(2)
|
(2)
|
$150,000,000
|
$0.0000927
|
$13,905
|
|
Total Offering Amounts
|
$13,905
|
||||||
Total Fees Previously Paid
|
_
|
_
|
_
|
||||
Total Fee Offsets
|
_
|
_
|
_
|
||||
Net Fee Due
|
$13,905
|
(1) |
Represents securities that may be offered and sold from time-to-time in one or more offering by the Registrant.
|
(2) |
This registration statement covers an indeterminate amount and number of securities of each identified class of securities up to a proposed maximum aggregate offering price of
$150,000,000, which may be offered from time to time in unspecified numbers and indeterminate prices, and as may be issued upon conversion, exchange, or exercise of any securities registered hereunder, including any applicable
anti-dilution provisions. Separate consideration may or may not be received for securities that are issuable on conversion, redemption, repurchase or exchange of other securities. Pursuant to Rule 416(a) promulgated under the Securities
Act of 1933, as amended, this registration statement also covers an indeterminate number of securities that may become issuable as a result of stock splits, stock dividends or similar transactions relating to the securities registered
hereunder.
|
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