Record Owners. You are a record owner if you own shares of common stock that are registered in your name with our transfer agent. If you are a record owner, you may participate directly in any or all of the features of the Plan.
Beneficial Owners. You are a beneficial owner if you own shares of common stock that are registered in the name of a broker, bank or other nominee. If you are a beneficial owner, you must (a) become a record owner by having one or more shares transferred into your own name, or (b) coordinate your participation in the Plan through the broker, bank or other nominee in whose name your shares of common stock are held.
Plan Restrictions
7.
| What are these restrictions on participation in the Plan other than those described under Question 6? |
Legality. You may not participate in the Plan if it would be unlawful for you to do so in the jurisdiction where you are a citizen or reside. If you live outside the U.S. and you are a qualified U.S. person, you should first determine if there are any laws or governmental regulations that would prohibit your participation in the Plan. We reserve the right to terminate participation of any participant if we deem it advisable under any foreign laws or regulations.
REIT Status. In order for us to maintain our qualification as a REIT, not more than 50% in value of any class or series of our outstanding capital stock may be owned, directly or indirectly, by five or fewer individuals (as defined in the Internal Revenue Code to include certain entities). We may terminate at any time any participant’s participation in the Plan if such participation would be in violation of the restrictions contained in our Charter. These restrictions prohibit, with specified exceptions, all stockholders, directly or indirectly, from beneficially owning more than 9.9% in value or in number, whichever is more restrictive, of our outstanding capital stock. Any attempted transfer or acquisition of capital stock that would create a direct or indirect ownership of capital stock in excess of this limit or otherwise result in our disqualification as a REIT will be null and void. Our Charter provides that we have various rights to enforce this limitation, including the transfer of such shares of capital stock to a trust. This summary of the ownership limitation is qualified in its entirety by reference to our Charter. We reserve the right to invalidate any purchases made under the Plan that we determine, in our sole discretion, may violate the ownership limitation set forth in our Charter or any REIT provision in the Internal Revenue Code.
Our Discretion. We reserve the right to modify, suspend or terminate the Plan. Additionally, we may modify, suspend or terminate the participation in the Plan by any participant in order to eliminate practices which are, in our sole discretion, not consistent with the purpose or operation of the Plan or which adversely affect the price of our shares of common stock.
Enrollment
8.
| How do I enroll in the Plan? |
If you are eligible to participate in the Plan, you may join the Plan at any time. Once you enroll in the Plan, you will remain enrolled until you withdraw from the Plan or we terminate the Plan or your participation in the Plan.
Enrollment Form. To enroll and participate in the Plan, you must complete the enclosed Enrollment Form and mail it to the Plan Administrator at Equiniti Trust Company, LLC, P.O. Box 10027, Newark, NJ 07101.
You may also enroll by accessing the Plan Administrator’s website at www.equiniti.com/us. If your shares of common stock are registered in more than one name (such as joint tenants or trustees), all such registered holders must sign the Enrollment Form. If you are eligible to participate in the Plan, you may sign and return the Enrollment Form to participate in the Plan at any time. The Plan Administrator must receive a properly executed Enrollment Form by the dividend record date for the relevant dividend payment.
Record Holders. If you own shares of common stock that are registered in your name (not the name of a broker, bank or other nominee), you can enroll in the Plan by completing an Enrollment Form and submitting it to the Plan Administrator. As a record holder, you may participate in any of the services of the Plan.
Beneficial Holders. If you are a beneficial holder, you may arrange to have your broker or bank participate in the Plan on your behalf. The Plan Administrator will not have a record of your transactions or your account since they will remain under the name of your broker or bank.
Dividend Reinvestment Options
9.
| How do I reinvest dividends? |
Choosing Your Investment Options. If you elect to reinvest your dividends, you must choose one of the following when completing the Dividend Reinvestment section of the Enrollment Form:
| | ● | Full Dividend Reinvestment: This option directs the Plan Administrator to reinvest the cash dividends paid on all of the shares of common stock owned by you then or in the future in additional shares. |
| | ● | Partial Dividend Reinvestment: This option allows you to specify a fixed number of full shares held by you on which you would like to receive a cash dividend payment and directs the Plan Administrator to reinvest the cash dividends paid on all remaining shares of common stock owned by you then or in the future. We will continue to pay you cash dividends, when, as and if declared by our board of directors, on the specified number of shares, unless you designate those shares for reinvestment pursuant to the Plan. |
No. Plan account shares are held in your name in non-certificated, “book-entry” form. This feature protects against the loss, theft or destruction of certificates evidencing your shares of common stock.
14.
| Can I get certificates if I want them? |
No.
15.
| May I deposit stock certificates I currently hold into my Plan account? |
If you own shares of common stock in certificated form, you may deposit all or a portion of the certificates in your possession with the Plan Administrator for safekeeping. To deposit your stock certificates, you should send the certificates to the Plan Administrator by registered or certified mail, return receipt requested (or some other form of traceable mail), and properly insured. The insured amount represents the approximate cost to you of replacing the certificates if they are lost in transit to the Plan Administrator. The Plan Administrator will promptly send you a statement confirming each stock certificate deposited. The Plan Administrator will credit the shares of common stock represented by the certificates to your account in book-entry form and will combine the shares with any whole and fractional shares then held in your Plan account.
In addition to protecting against the loss, theft or destruction of your certificates, this service also is convenient if you sell shares of common stock through the services of the Plan Administrator. See Question 16 for more information on how to sell your shares of common stock under the Plan.
The Plan Administrator charges a $7.50 per transaction fee for stock certificates deposited with it for “safekeeping”, which fee is waived if the shares deposited are to be sold at or about the same time as the stock certificates are deposited.
Sale and Transfer of Shares
16.
| How can I sell shares in my Plan account? |
You can sell any number of shares held in your Plan account at any time by contacting the Plan Administrator. After receipt of your sale request, the Plan Administrator will sell such shares through a designated broker or dealer. The Plan Administrator will mail to you a check for the proceeds of such sale, less applicable fees described in Question 22 and any taxes. The Plan Administrator generally intends to sell shares of common stock at least once per day at the then current market prices through one or more brokerage firms.
Cost of Selling Shares. Please see Question 22 for a description of such fees and costs.
Termination of Your Account Upon Sale of All Shares. If you no longer hold any shares in your Plan account, the Plan Administrator may close your Plan account. Similarly, if you hold less than one share in your Plan account, the Plan Administrator may liquidate the fractional share and remit the proceeds to you, less any applicable fees, and close your Plan account.
Timing and Control. If the Plan Administrator sells your shares, we do not have the authority or power to control the timing or pricing of shares sold or the selection of the broker making the sales. Therefore, you will not be able to precisely time your sales through the Plan, and will bear the market risk associated with fluctuations in the price of shares of common stock. That is, if you request the Plan Administrator to sell your shares, it is possible that the market price of shares of common stock could go down or up before your shares are sold and the per share sales price you receive will be the average price of all common stock shares sold through the Plan Administrator with respect to that sale date. In addition, you will not earn interest on a sales transaction.
17.
| How can I transfer or give gifts of shares? |
You may transfer or give gifts of shares of common stock to anyone you choose (subject to the restrictions set forth in our Charter, and as may be amended from time to time), by sending the Plan Administrator, (a) an Enrollment Form executed by you, (b) a stock assignment properly executed by you, (c) a letter from you setting forth a detailed description of the transfer and (d) a Form W-9 (Certificate of Taxpayer Identification Number) completed and executed by the person to whom you are transferring your shares. These materials should be sent to Equiniti Trust Company, LLC, Plan Administrator, P.O. Box 10027, Newark, New Jersey 07101.
Absent any instructions by you, if you are enrolled in the Plan, any transferee of your shares will also automatically be enrolled in the Plan as well.
18.
| Can I transfer my right to participate in the Plan to another person? |
You may not transfer your right to participate in the Plan to another person. However, you may change ownership of all or part of your Plan shares through a gift, sale or otherwise at any time.
Termination of Participation
19.
| How would I terminate my participation? |
You may withdraw from the Plan at any time. To do so, you must provide notice to the Plan Administrator instructing it to terminate your Plan participation. Notice may be provided by mail, telephone or through the Plan Administrator’s website. To be effective for any given dividend payment, the Plan Administrator must receive notice at least three days prior to the next purchase date. If your Plan withdrawal notice is received less than three days before the next purchase date, the dividend will be applied in accordance with the Plan, but subsequent dividends will be paid to you in cash. Upon termination of your Plan account, you will receive a certificate for the whole shares you held under the Plan, and a check for any fractional shares held in your account at the time of termination based on the current market value less any applicable service fees. After the Plan Administrator terminates your account, future dividends will be sent directly to you by check. Alternatively, if you so direct, the Plan Administrator will sell all whole and fractional shares in your Plan account and send you a check for the proceeds less any applicable fees.
Rejoining the Plan After Withdrawal. After you withdraw from the Plan, you may rejoin the Plan at any time by delivering a new Enrollment Form to the Plan Administrator. However, the Plan Administrator has the right to reject your Enrollment Form if you repeatedly join and withdraw from the Plan, or for any other reason. The Plan Administrator’s exercise of this right is intended to minimize unnecessary administrative expenses and to encourage use of the Plan as a long-term stockholder investment service.
Reports and Notices to Participants
20.
| How will I keep track of my investments? |
The Plan Administrator will send you a transaction notice confirming the details of each transaction you make. If you continue to participate in the Plan but have no transactions, the Plan Administrator will send you an annual statement after the end of the year detailing the status of your holdings of shares of common stock in your Plan account. Participants who have elected to have their dividends reinvested will receive a quarterly Plan account statement in addition to the transaction notices.
21.
| Where will notices be sent? |
The Plan Administrator will address all of its notices to you at your last known address. You should notify the Plan Administrator promptly, in writing, of any change of address.
Fees and Commissions
22.
| What are the costs of participating in the Plan? |
If the Plan acquires shares directly from us, you will not pay any fees or brokerage commissions for shares of common stock purchased with your reinvested dividends. (We have agreed to pay the Plan Administrator’s fees (i.e., 5% of the amount reinvested, up to a maximum fee of $5.00 per reinvesting account) in connection with reinvested dividends. If the Plan purchases shares in the open market or in privately negotiated transactions, you will be responsible for your pro rata shares of fees and commissions, including brokerage fees, incurred in connection therewith. As of the date of this prospectus, the Plan does not intend to acquire shares in the open market or through privately negotiated transactions.
If you request that the Plan Administrator sell your shares, you will pay a fee of $15.00 per transaction and $0.12 for each share sold.
See also Question 15 for information regarding the fees imposed in connection with depositing all or a portion of your certificates for safekeeping.
Federal Tax Consequences
23.
| What are the federal income tax consequences of participating in the Plan? |
The following is a brief summary of the U.S. federal income tax consequences of participation in the Plan as of the date of this prospectus. However, this summary does not reflect every situation that could result from participation in the Plan, and we advise you to consult your own tax and other advisors for information about your specific situation, including any applicable state, local or foreign income and other tax consequences that may result from your participation in the Plan. Any state tax consequences will vary from state to state, and any tax consequences to you if you reside outside of the U.S. will vary from jurisdiction to jurisdiction. This summary does not address all of the tax implications of your ownership of shares of the common stock of a REIT, including the effect of distributions made in respect of such shares.
Under Internal Revenue Service rulings in connection with similar plans, the fair market value of the shares acquired through the Plan (including the shares acquired as a result of any Plan discount) will be taxable as dividends to the extent of our current or accumulated earnings and profits notwithstanding that such dividends are in stock. The amount of such dividends will equal the fair market value of the stock acquired with the reinvested dividends as of the date the stock is acquired under the Plan, regardless of any Plan discount.
Distributions with respect to our shares that are not designated as capital gain dividends, will generally be taxable as ordinary income, and generally will not constitute “qualified dividend income” eligible to be taxed at capital gains rates for U.S. federal income tax purposes to the extent made out of our current or accumulated earnings and profits. Dividends paid to individual stockholders generally will not qualify for the “qualified dividend income” tax rate. Qualified dividend income generally includes dividends paid to most individual taxpayers by domestic C corporations and certain qualified foreign corporations. Because we are generally not subject to U.S. federal income tax on the portion of our REIT taxable income distributed to our stockholders, our dividends generally will not be eligible for the 20% tax rate on qualified dividend income. As a result, our ordinary REIT dividends will be subject to taxation at the highest marginal tax rate applicable to ordinary income, currently 37%. However, for taxable years prior to 2026, individual stockholders are generally allowed to deduct 20% of the aggregate amount of their “qualified REIT dividends,” subject to certain limitations, which would reduce the maximum marginal effective tax rate for individuals on the receipt of such ordinary dividends to 29.6%. Qualified REIT dividends generally include any dividend from a REIT received during the taxable year which is not a capital gain dividend or qualified dividend income. Notwithstanding the foregoing, the 20% tax rate for qualified dividend income will apply to our ordinary REIT dividends (i) attributable to dividends received by us from taxable corporations, including any taxable REIT subsidiary, and (ii) to the extent attributable to taxable REIT income upon which we have paid corporate income tax (e.g., to the extent that we distribute less than 100% of our taxable income). In general, to qualify for the 20% tax rate on qualified dividend income, a stockholder must hold our shares for more than 60 days during the 121-day period beginning on the date that is 60 days before the date on which such shares become ex-dividend. Dividends paid to a corporate stockholder will not be eligible for the dividends received deduction generally available for corporations and such dividends will be subject to taxation at the regular corporate tax rate of 21%. Distributions in excess of our current or accumulated earnings and profits will be treated for U.S. federal income tax purposes as a return of capital. The amount of a return of capital would first reduce the adjusted tax basis of the shares to which the distribution is attributable, with any excess treated as a return of capital and would be taxable as a gain on sale from the disposition of such shares.
In the event that we designate a part or the entire amount distributed as a capital gain dividend, the amount so designated should be treated as a long-term capital gain to the extent that such distribution does not exceed our actual net capital gain for the taxable year, without regard to the period for which a stockholder has held its shares. Corporate stockholders may be required to treat up to 20% of some capital gain dividends as ordinary income. Long-term capital gains are generally taxable at maximum U.S. federal rates of 20% in the case of stockholders who are individuals, and 21% for corporations. Capital gains dividends attributable to the sale of depreciable real property held for more than 12 months are subject to a 25% tax rate for individual stockholders, to the extent of previously claimed depreciation deductions.
Your tax basis in shares of common stock acquired under the Plan (including the shares acquired as a result of any Plan discount) will be equal to the fair market value of such shares as of the date the shares were acquired. Your holding period for shares of common stock acquired under the Plan generally will commence on the day following the date on which the common stock is credited to your Plan account or, if the shares are purchased in the open market, the holding period will commence on the day following the date of purchase.
You will not recognize gain or loss for U.S. federal income tax purposes upon your receipt of certificates for shares previously credited to your Plan account. However, you will generally recognize gain or loss (which for most participants, will be capital gain or loss) when you sell or exchange shares received from the Plan or when a fractional share interest is liquidated. Such gain or loss will equal the difference between the amount that you receive for such fractional share interest or such shares and your adjusted tax basis in such fractional share interest or shares. If you hold the shares as a capital asset for greater than one year, such gain or loss derived from a sale or exchange of such shares will be characterized as long-term capital gain or loss. The maximum tax rate on long-term capital gains applicable to individuals is 20%. Corporate stockholders will be subject to taxation on their net capital gain at the regular corporate tax rate of 21%.
Certain Plan participants, including individuals, estates and trusts, may also be subject to a nondeductible 3.8% tax on the lesser of (i) “net investment income,” for the taxable year, which includes, among other things, dividends on and gains from the sale or other disposition of stock or (ii) the amount by which such participant’s modified adjusted gross income for the taxable year exceeds a certain threshold amount depending on the participant’s U.S. federal income tax filing status. Participants should consult with their own tax advisers regarding this tax.
In the case of foreign participants who elect to have their dividends reinvested and whose dividends are subject to United States income tax withholding, an amount equal to the dividends payable to such participants who elect to reinvest dividends, less the amount of tax required to be withheld, will be applied by the Plan Administrator to the purchase of shares of Common Stock. A Form 1042S, mailed to each foreign participant after the final purchase of the calendar year, will show the amount of tax withheld in that year. A Form 1099 will be mailed to domestic participants in the event that Federal income tax withholding is imposed in the future on dividends to domestic participants.
The foregoing is intended only as a general discussion of the current federal income tax consequences of participation in the Plan, and may not be applicable to certain participants, such as tax-exempt entities. You should consult your own tax and other professional advisors regarding the foreign, federal, state and local income tax consequences (including the effects of any changes in applicable law or interpretations thereof) of your participation in the Plan or the disposal of shares acquired pursuant to the Plan.
Other Information
24.
| How can I vote my shares? |
You will receive proxy material for all shares in your Plan account. You may vote your shares of common stock either by designating the vote of the shares by proxy or by voting the shares in person at the meeting of stockholders. The proxy will be voted in accordance with your direction. If you do not return the proxy card or if you return it unsigned, none of your shares will be voted.
25.
| Can the Plan be amended, modified, suspended or terminated? |
We reserve the right to amend, modify, suspend or terminate the Plan at any time. You will receive written notice of any material amendment, modification, suspension or termination. We and the Plan Administrator also reserve the right to change any administrative procedures of the Plan.
If we terminate the Plan, you will receive a certificate for all whole shares held in your Plan account and a check representing the value of any fractional shares based on the then current market price. We also will return to you any uninvested dividends held in your account.
26.
| How will a stock split or a rights offering affect my Plan account? |
Stock Split. We will adjust your account to reflect any stock split or dividend payable in shares of common stock. In such event, the Plan Administrator will receive and credit to your Plan account the applicable number of whole and/or fractional shares of common stock.
Rights Offering. If we have a rights offering in which we issue separately tradable and exercisable rights to registered holders of shares of common stock, we will transfer the rights attributable to whole shares of common stock held in your Plan account to you as soon as practicable after we issue such rights. The Plan Administrator will sell for your account any rights attributable to fractional shares.
The Plan Administrator, at its sole discretion, may curtail or suspend transactions pending under the Plan until completion of any stock split or dividend, rights offering or other corporate action.
27.
| Are there any risks associated with the Plan? |
Your investment in shares of common stock purchased under the Plan is no different from any investment in shares of common stock that you hold directly. Neither we nor the Plan Administrator can assure you a profit or protect you against a loss on shares that you purchase. You bear the risk of loss and enjoy the benefits of any gain from market price changes with respect to shares purchased under the Plan. We encourage you to carefully consider the various risk factors associated with an investment in our shares of common stock set forth in the “Risk Factors” section of this prospectus.
28.
| What are the responsibilities of you and the Plan Administrator? |
Neither we nor the Plan Administrator will be liable for any act done in good faith or for any good faith failure to act, including, without limitation, any claim of liability (a) arising from the failure to terminate your account upon your death or judgment of incompetence prior to the Plan Administrator’s receipt of notice in writing of the death or incompetence, (b) relating to the prices and times at which the Plan Administrator buys or sells shares for your account, or (c) relating to any fluctuation in the market value of the shares of common stock.
We, the Plan Administrator and each of our respective agents will not have any duties, responsibilities or liabilities other than those expressly set forth in the Plan or as imposed by applicable law, including Federal securities laws. Since we have delegated all responsibility for administering the Plan to the Plan Administrator, we specifically disclaim any responsibility for any of the Plan Administrator’s actions or inactions in connection with the administration of the Plan. None of our directors, officers or stockholders will have any personal liability under the Plan.
The payment of dividends is at the discretion of our board of directors and will depend upon future earnings, our financial condition and other factors. The board of directors may change the amount and timing of dividends at any time without notice.
29.
| How will you interpret and regulate the Plan? |
We may interpret, regulate and take any other action in connection with the Plan that we deem reasonably necessary in our sole discretion to carry out the Plan. As a participant in the Plan, you will be bound by any actions taken by us or the Plan Administrator.
30.
| What law governs the Plan? |
The laws of the State of Maryland govern the Plan.
We will receive the proceeds from the sale of shares of our common stock that the Plan Administrator purchases directly from us. We will not receive proceeds from the sale of shares of common stock that the Plan Administrator purchases in the open market or in negotiated transactions. We intend to use the net proceeds of the sale of any newly issued shares of common stock issued under the Plan for general corporate purposes. General corporate purposes include, among other things, the acquisition of additional properties, the renovation or expansion of our existing properties, purchases of our common stock, repayment of debt and capital expenditures.
We will have significant discretion in the use of any net proceeds. Investors will be relying on the judgment of our management regarding the application of the proceeds from any sale of the securities. Until we use the net proceeds from the sale of shares of common stock pursuant to the Plan, such proceeds may be deposited in interest or non-interest bearing accounts or invested in marketable securities, including securities that may not be investment grade. We consider the Plan to be a cost-effective means of expanding our equity capital base and furthering our investment objectives while at the same time benefiting our stockholders.
Except to the extent the Plan Administrator purchases shares of common stock in the open market or in negotiated transactions, we will sell directly to you through the Plan Administrator the shares of common stock acquired under the Plan. The shares of common stock may be resold in market transactions on any national securities exchange on which shares of our common stock trade or in privately negotiated transactions. Our shares of common stock are currently listed on the New York Stock Exchange.
Persons who acquire shares of common stock through the Plan and resell them shortly after acquiring them, including coverage of short positions, under certain circumstances, may be participating in a distribution of securities that would require compliance with Regulation M under the Exchange Act, and may be considered to be underwriters within the meaning of the Securities Act of 1933, as amended. We will not extend to any such person any rights or privileges other than those to which it would be entitled as a participant under the Plan, nor will we enter into any agreement with any such person regarding such person’s purchase of such shares or any resale or distribution thereof.
Subject to the restrictions contained in our Charter, our bylaws, and the availability of shares of common stock registered for issuance under the Plan, there is no maximum number of shares of common stock that can be purchased by a stockholder pursuant to the reinvestment of dividends. In connection with any reinvestment of dividends in which the Plan Administrator purchases shares of common stock in the open market or negotiated transactions, you will pay your pro rata share of any trading fees. You also will have to pay any fees and commissions set forth in Question 22 of the Plan.
DISCLOSURE OF SEC’s POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILIITIES
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling us, we have been informed that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
The validity of the securities offered hereby and certain U.S. federal income tax matters will be passed upon for us by Dentons US LLP, New York, New York.
The consolidated financial statements of One Liberty Properties, Inc. and Subsidiaries appearing in One Liberty Properties, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2023, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon included therein, and incorporated herein by reference. Such financial statements are, and audited financial statements to be included in subsequently filed documents will be, incorporated herein in reliance upon the report of Ernst & Young LLP pertaining to such financial statements (to the extent covered by consents filed with the Securities and Exchange Commission) given on the authority of such firm as experts in accounting and auditing.
ONE LIBERTY PROPERTIES, INC.
DIVIDEND REINVESTMENT PLAN
1,000,000 shares of Common Stock
PROSPECTUS
June 11, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
| Other Expenses of Issuance and Distribution |
The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the sale and distribution of the securities being registered. All amounts except the SEC registration fee are estimated.
SEC Registration Fee | | $ | 3,486.32 | |
Accounting Fees and Expenses | | | 5,000.00 | |
Legal Fees and Expenses | | | 5,000.00 | |
Printing Expenses | | | 3,000.00 | |
Miscellaneous | | | 3,513.68 | |
Total | | $ | 20,000.00 | |
Item 15.
| Indemnification of Directors and Officers |
Indemnification
Under our Charter, we would be required to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:
| | ● | any present or former director or officer 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 only if he or she 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. |
The Charter allows us, with the approval of our board of directors, to indemnify our employees, as well as directors and officers of our predecessors, subject to the same limitations set forth in the immediately preceding paragraph.
Under the MGCL and the Charter, we must indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made a party by reason of his or her service in that capacity. The MGCL permits us to indemnify our present and former directors and officers, among others, against judgments, penalties, fines, settlements, and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or threatened to be made a party by reason of their service in those or other capacities unless it is established that:
| | ● | 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. |
We may not indemnify a director or officer in a suit (i) by or on our behalf in which the director or officer was adjudged liable to the corporation or (ii) in which the director or officer was adjudged liable on the basis that personal benefit was improperly received. A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct or was adjudged liable on the basis that personal benefit was improperly received. However, indemnification for an adverse judgment in a suit by or on behalf of the corporation, or for a judgment of liability on the basis that personal benefit was improperly received, is limited to expenses.
In addition, the MGCL permits us to advance reasonable expenses to a director or officer upon receipt of:
| | ● | 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. |
Insurance Coverage
We maintain directors’ and officers’ liability insurance which will indemnify our directors and officers against damages (including legal fees and expenses), arising out of certain kinds of claims (including claims made under the Securities Act), which might be made against them based on acts and things done (or not done) by them while acting in their capacity as directors and officers.
Disclosure of SEC’s Position on Indemnification for Securities Act Liabilities
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling us, we have been informed that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
See attached Exhibit List.
| (a) | The undersigned registrant hereby undertake: |
| | (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 of 1933; |
| | (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 this 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 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 this registration statement or any material change to such information in this registration statement; |
provided, however, that subparagraphs (i), (ii) and (iii) above shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| | (2) | That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933 to any purchaser: |
(A) 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
(B) 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 of 1933 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 of 1933 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 of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this 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 of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue. |
EXHIBIT INDEX
| Exhibit No. | Description of Document |
| Articles of Amendment and Restatement of One Liberty Properties, Inc. (incorporated by reference to Exhibit 3.1 to our Annual Report on Form 10-K for the year ended December 31, 2020). |
| | |
| Amended and Restated By-Laws of One Liberty Properties, Inc. effective as of December 7, 2022 (incorporated by reference to Exhibit 3.2 to our Current Report on Form 8-K filed on December 12, 2022). |
| | |
| Legal opinion of Dentons US LLP regarding the legality of the securities being registered. |
| | |
| Tax opinion of Dentons US LLP |
| | |
| 23.1 | Consent of Dentons (included in its opinions filed as Exhibits 5.1 and 8.1) |
| | |
| Consent of Ernst & Young LLP. |
| | |
| Power of Attorney (included on signature page). |
| | |
| Form of Enrollment Application. |
| | |
| Filing Fee Table |
SIGNATURES
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 Village of Great Neck Plaza, State of New York on June 11, 2024.
| | One Liberty Properties, Inc. |
| | | |
| | By: | /s/ PATRICK J. CALLAN, JR. |
| | | Patrick J. Callan, Jr. |
| | | President and Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints, Patrick J. Callan, Jr., Isaac Kalish and Mark H. Lundy, or any of them his or her true and lawful agent, proxy and attorney in fact, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments (including post effective amendments) to this registration statement (and any additional registration statement related hereto permitted by Rule 462(b) promulgated under the Securities Act of 1933 (and all further amendments, including post-effective amendments, thereto)) together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included in this registration statement or any such amendment, and (iv) take any and all actions which may be necessary or appropriate in connection therewith, granting unto such agent, proxy and attorney in fact full power and authority to do and perform each and every act and thing necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying and confirming all that such agents, proxies and attorneys in fact or any of their substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed on June 11, 2024 by the following persons in the capacities indicated.
Signature | | Title |
| | | |
/s/ MATTHEW J. GOULD | | Chairman of the Board of Directors |
Matthew J. Gould | | |
| | | |
/s/ FREDRIC H. GOULD | | Vice Chairman of the Board of Directors |
Fredric H. Gould | | |
| | | |
/s/ PATRICK J. CALLAN, JR. | | President, Chief Executive Officer and Director (principal executive officer) |
Patrick J. Callan, Jr. | | |
| | | |
/s/ CHARLES L. BIEDERMAN | | Director |
Charles L. Biederman | | |
| | | |
/s/ EDWARD GELLERT | | Director |
Edward Gellert | | |
| | | |
/s/ JEFFREY A. GOULD | | Director |
Jeffrey A. Gould | | |
| | | |
| | | |
/s/ J. ROBERT LOVEJOY | | Director |
J. Robert Lovejoy | | |
| | | |
/s/ LEOR SIRI | | Director |
Leor Siri | | |
| | | |
/s/ KAREN A. TILL | | Director |
Karen A. Till | | |
| | | |
/s/ ISAAC KALISH | | Chief Financial Officer and Senior Vice |
Isaac Kalish | | President (Principal Financial Officer) |
| | | |
/s/ MILI MATHEW | | Vice President, Financial (Principal |
Mili Mathew | | Accounting Officer) |
