As filed with the Securities and Exchange Commission on May 16, 2002
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Barnwell Industries, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 72-0496921
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1100 Alakea Street, Suite 2900, Honolulu, Hawaii 96813-2840
(Address of Principal Executive Offices) (Zip Code)
Barnwell Industries, Inc. 1998 Stock Option Plan
------------------------------------------------
(Full title of the plan)
Morton H. Kinzler
-----------------
Chairman of the Board, President and Chief Executive Officer
Barnwell Industries, Inc.
1100 Alakea Street, Suite 2900
Honolulu, Hawaii 96813-2840
---------------------------
(Name and address of agent for service)
(808) 531-8400
(Telephone number, including area code, of agent for service)
Copy to:
Floyd I. Wittlin, Esq.
Bingham Dana LLP
399 Park Avenue
New York, New York 10022-4689
(212) 318-7700
CALCULATION OF REGISTRATION FEE
Proposed
Title of Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Price Aggregate Offering Registration
be Registered Registered Per Share (1) Price (1) Fee
- ------------- ----------- ------------- -------------- ------------
Common Stock, 130,000 (2) $20.35 $2,645,500 $661.36
par value $0.50 shares
per share
1
(1) The proposed maximum aggregate offering price, estimated solely for the
purpose of calculating the registration fee, has been computed pursuant to
Rule 457(h) promulgated under the Securities Act and is based on the average
of the high and low prices of Barnwell Industries, Inc.'s Common Stock, par
value $0.50 per share (the "Common Stock"), on May 10, 2002, as reported on
the American Stock Exchange.
(2) Represents shares issuable under the Barnwell Industries, Inc. 1998 Stock
Option Plan.
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document or documents containing the information specified in Part I
are not required to be filed by Barnwell Industries, Inc. (the "Company") with
the Securities and Exchange Commission (the "Commission") as part of this Form
S-8 Registration Statement (the "Registration Statement") pursuant to Rule 424
under the Securities Act.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
The following documents have been previously filed by the Company with the
Commission and are incorporated in this Registration Statement by reference:
(a) The Company's annual report on Form 10-KSB for the fiscal year
ended September 30, 2001, filed on December 18, 2001.
(b) All other reports of the Company filed pursuant to Section
13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act") since the end of the fiscal year covered by the annual report
referenced in (a) above.
(c) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-C, effective August 3, 1965 including any
amendments or reports filed for the purpose of updating that description.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Registration Statement and prior to such time as the Company files
a post-effective amendment to this Registration Statement indicating that all
securities offered hereby have been sold, or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
-------------------------
Not applicable.
2
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The Company's Certificate of Incorporation provides that the Company will
indemnify each director of the Company in accordance with Section 145 of the
General Corporation Law of the State of Delaware (the "Delaware Law"). The
Company's Amended and Restated By-Laws provide for the indemnification of the
officers and directors of the Company to the full extent permitted by applicable
law.
Section 145 of the Delaware Law empowers a Delaware corporation to
indemnify any persons who are, or are threatened to be made, parties to any
threatened, pending or completed action, suit, proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person was an
officer or director of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such officer or director acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe his
conduct was unlawful. A Delaware corporation may indemnify officers and
directors in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation
in the performance of his duty. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually and reasonably incurred in connection therewith.
In addition, in accordance with Section 102 of the Delaware Law, the
Certificate of Incorporation of the Company contains a provision to limit the
personal liability of the directors of the Company for violations of their
fiduciary duty. This provision eliminates each director's liability to the
Company or its stockholders for monetary damages except (i) for any breach of
the director's duty of loyalty to the Company or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware Law providing
for liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemption, or (iv) for any transaction from which a director
derived an improper personal benefit. The effect of this provision is to
eliminate the personal liability of the directors to the Company or its
stockholders for monetary damages for actions involving a breach of their
fiduciary duty of care, including any such actions involving gross negligence.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not Applicable.
ITEM 8. EXHIBITS
--------
The following exhibits are filed (except where otherwise indicated) as
part of this Registration Statement:
Exhibit No. Description
- ----------- -----------
4.1 Barnwell Industries, Inc. 1998 Employee Stock Option Plan.
5.1 Opinion of Bingham Dana LLP.
3
23.1 Consent of KPMG LLP.
23.2 Consent of Bingham Dana LLP (included in the opinion filed as
Exhibit 5.1).
24.1 Power of Attorney (set forth on signature page).
ITEM 9. UNDERTAKINGS
------------
The undersigned small business issuer hereby undertakes:
(1) To file, during any period in which it offers or
sells securities, a post-effective amendment to
this registration statement to include any
additional or changed material information on
the plan of distribution.
(2) For determining liability under the Securities
Act, treat each post-effective amendment as a new registration
statement of the securities offered, and the offering of the
securities at that time to be the initial bona fide offering.
(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of
the offering.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Honolulu, State of Hawaii, on this 7th day of
March, 2002.
BARNWELL INDUSTRIES, INC.
By: /s/ Morton H. Kinzler
---------------------
Morton H. Kinzler
Chairman of the Board,
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby appoints Morton H. Kinzler, Russell M. Gifford, Alexander C.
Kinzler, each of them severally, acting alone and without the other, his true
and lawful attorney-in-fact with the authority to execute in the name of each
such person, and to file with the Securities and Exchange Commission, together
with any exhibits thereto and other documents therewith, any and all amendments
(including without limitation post-effective amendments) to this Registration
Statement on Form S-8 necessary or advisable to enable the Registrant to comply
with the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission in respect thereof, which
amendments may make such other changes in the Registration Statement as the
aforesaid attorney-in-fact executing the same deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
Chairman of the Board,
/s/ Morton H. Kinzler President and Chief March 8, 2002
- --------------------- Executive Officer and
Morton H. Kinzler Director
/s/ Russell M. Gifford Executive Vice President,
- ---------------------- Chief Financial Officer March 20, 2002
Russell M. Gifford and Treasurer
/s/ Alexander C. Kinzler Executive Vice President,
- ------------------------ Secretary and Director March 8, 2002
Alexander C. Kinzler
/s/ Martin Anderson Director March 18, 2002
- -------------------
Martin Anderson
/s/ Murray C. Gardner Director March 21, 2002
- ---------------------
Murray C. Gardner
/s/ Erik Hazelhoff-Roelfzema Director March 21, 2002
- ----------------------------
Erik Hazelhoff-Roelfzema
5
/s/ Alan D. Hunter Director April 1, 2002
- ------------------
Alan D. Hunter
/s/ Daniel Jacobson Director March 29, 2002
- -------------------
Daniel Jacobson
/s/ Terry Johnston Director March 19, 2002
- ------------------
Terry Johnston
6
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Barnwell Industries, Inc. 1998 Stock Option Plan.
5.1 Opinion of Bingham Dana LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Bingham Dana LLP (included in the opinion filed as
Exhibit 5.1).
24.1 Power of Attorney (set forth on signature page).
7
Exhibit 4.1
BARNWELL INDUSTRIES, INC.
1998 STOCK OPTION PLAN
1. Purpose. Barnwell Industries, Inc., a Delaware corporation
(the "Company"), intends that this 1998 Stock Option Plan (the "Plan") will
provide incentive to executive officers of the Company (which for purposes of
the Plan shall include its wholly-owned subsidiaries) to continue and increase
their efforts to improve operating results, to remain in the employ of the
Company and to have greater financial interest in the Company through ownership
of its Common Stock.
2. Administration. The Board of Directors of the Company or a
committee (the "Committee"), consisting of no fewer than two directors who are
appointed by the Board of Directors, shall administer the Plan. The Committee
shall have full power to construe and interpret the Plan and to establish and
amend rules and regulations for its administration. All action taken and
decisions made by the Committee pursuant to the Plan shall be final and
conclusive. As used herein, the word "Committee" shall be deemed to include the
Board of Directors, whether or not a committee shall have been appointed.
3. Eligibility. Persons eligible to receive options shall be
executive officers regularly providing services to the Company. Nothing
contained in the Plan shall be deemed to require the Company to continue the
employment of, or any other contractual arrangement with, any optionee.
4 Stock Subject to the Plan. Stock to be offered under the Plan
shall be shares of the Company's Common Stock, par value $.50 per share, which
may be authorized but unissued shares or shares acquired by the Company and held
in its treasury, as the Board of Directors may determine. Subject to Section 6
of the Plan, not more than 130,000 shares of Common Stock shall be sold on
exercise of options granted under the Plan. For purposes of the Plan, the term
"Common Stock" includes any stock into which such Common Stock shall have been
changed or any stock resulting from any reclassification of such Common Stock.
5. Award of Options. The Committee may, in its discretion, grant
options under the Plan from time to time prior to the expiration of ten years
from the date on which the Company's Board of Directors adopts this Plan. The
Committee may grant options effective as of any date within such ten-year period
as is specified by the Committee in the Stock Option Agreement (defined below in
Section 7(1)) relating to such options. However, the Committee may not grant an
incentive stock option, as described in Section 8, if the grant of such option
would violate the requirement of Section 8(a). The shares covered by the
unexercised portion of any terminated or expired options shall become available
again for the grant of options under the Plan.
6. Adjustments.
(a) Subject to any required action by the stockholders of the
Company, in the event that the outstanding shares of Common Stock are hereafter
increased or decreased or changed into or exchanged for a different number or
kind of shares or other securities of the Company or of another corporation by
reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split, combination of shares, share dividends or the
sale of additional shares or conversion of securities convertible into such
shares the Committee shall adjust the number and kind of shares for the purchase
of which options may be granted under the Plan and the number and kind of shares
as to which outstanding options, or portions thereof then unexercised, shall be
exercisable. In any such case, the Committee shall make such adjustment in
outstanding options without change in the total price applicable to the
unexercised portion of the option and with a corresponding adjustment in the
option price per share.
8
(b) Should the Company sell all or substantially all of its
assets and discontinue its business, or merge or consolidate with another
entity, or liquidate or dissolve in connection with those events, then, in lieu
of its obligation under Section 6(a), the Company's Board of Directors shall
amend or adjust both the Plan and outstanding options so as to terminate the
Plan completely, or to continue the Plan with respect to the exercise of options
which were exercisable or became exercisable at the date the Board of Directors
adopted the plan of sale, merger, consolidation, or liquidation. In any such
case, however, each optionee will be given either (i) a reasonable time in which
to exercise his options (to the extent possible under the options' terms as set
forth in Section 7(c)) before the effectiveness of the sale and discontinuation,
merger consolidation or liquidation, or (ii) the right to obtain, for his
payment of the option price, an equivalent amount of any securities such
optionee would have been entitled to obtain in consequence of that event, had he
exercised his options (to the extent possible under the options' terms as set
forth in Section 7(c)) immediately before the plan of sale and discontinuation,
merger, consolidation, or liquidation was adopted.
(c) Should the Company be recapitalized in a transaction not
covered by Section 6(a) by the issuance of any other class or classes of
securities in exchange for Common Stock, the Board of Directors shall amend the
Plan and outstanding options to reflect an equivalent number of units of such
securities as being subject to the Plan and such options and to reflect an
adjusted option price per unit of such securities as would equitably be obtained
in accordance with the terms otherwise applicable to the actual exchange.
(d) Neither Section 6(b) nor 6(c) will require the Company to
issue any fractional share under the Plan or upon exercise of outstanding
options; and any amount payable for option exercise will be appropriately
reduced in respect of any such fractional shares otherwise required by operation
of those Sections, but not issued by reason of this Section 6(d).
7. Terms of Option. Except to the extent Section 8(b) hereof
may otherwise require with respect to incentive stock options to be granted to
any person who immediately before the grant of such option owns shares
representing more than 10% of the total combined voting power of all classes of
shares of the Company or any subsidiary, all options under the Plan shall be
subject to the following conditions and to such other conditions as the
Committee and the optionee may agree:
(a) Option Term. No option granted under the Plan will be
exercisable earlier than the date six months following the date on which the
option is granted or after the expiration of ten years from the date on which
the option is granted.
(b) Option Exercise Price. The exercise price of an option granted
hereunder shall be equal to the Closing Price (as hereinafter defined) of the
Company's Common Stock on the trading day prior to the date on which the option
is granted (the "Option Price"); provided, however, if on the date on which the
option is granted the Company's Common Stock is not listed on any national
securities exchange or quoted on an automated quotation system of a registered
securities association, the Option Price shall be the fair value per share of
the Common Stock as determined in good faith and on a reasonable basis by the
Board of Directors of the Company (the "Fair Market Value").
(c) Vesting Schedule. Options granted shall become exercisable at
such times and in such amounts as set forth below:
(i) 25% of the options granted shall become exercisable
on the first anniversary of the date of grant of such options.
(ii) 25% of the options granted shall become exercisable
on the second anniversary of the date of grant of such options.
9
(iii) 25% of the options granted shall become exercisable
on the third anniversary of the date of grant of such options.
(iv) 25% of the options granted shall become exercisable
on the fourth anniversary of the date of grant of such options.
Notwithstanding the preceding sentence, no incentive stock option may be
granted that would cause the limits of Section 8(a) to be exceeded with respect
to an optionee. The Committee, in its sole discretion, may prescribe a different
vesting schedule for any incentive stock option granted under the Plan if
necessary to prevent the option from violating the requirements of Section 8(a).
However, in no event shall any option become exercisable earlier than the date
six months following the date on which the option is granted.
(d) Certain Definitions. For purposes of the Plan, the following
terms shall have the meanings set forth below:
(i) "Cause", with respect to the termination of an
optionee's employment by the Company, shall mean (A)
commission of a significant act of dishonesty or deceit in the
performance of the optionee's duties to the Company; (B)
willful failure by the optionee in any way to substantially
perform his duties to the Company (unless such failure is
curable and is cured within twelve days after the optionee
receives written notice of such failure); or (C) conviction of
a felony, other than a felony predicated upon the optionee' s
vicarious liability;
(ii) "Closing Price" shall mean (i) the closing sale
price of the Company's Common Stock on any national securities
exchange on which the Company's Common Stock shall be
registered and listed or (ii) if the Company's Common Stock is
traded in the over-the-counter market and quoted on the NASDAQ
Stock Market's National Market ("NASDAQ-NM"), the closing sale
price of the Common Stock on NASDAQ-NM or (iii) if the
Company's Common Stock shall not at the time be listed on any
such exchange or quoted on NASDAQ-NM, but is traded in the
over-the-counter market and quoted on an automated quotation
system of a registered securities association, the closing
price for such stock, as quoted on such system; and
(iii) "Disability", with respect to the termination of an
optionee's employment by the Company, shall mean the
optionee's physical or mental inability, for a substantially
consecutive period of one hundred eighty (180) days in any
consecutive twelve (12) month period, to render the services
to be performed by him for the Company.
When an installment of options has become exercisable, the optionee may
exercise that installment, in whole or in part, at any time prior to the
expiration or termination of the options. Subject to Section 7(a) of the Plan
and, in the case of incentive stock options, subject to Section 8(a), the
Committee may accelerate the time at which outstanding options may be exercised.
Notwithstanding any schedule for vesting stated above or other exercise
schedule or entitlement which effectively precludes full and immediate exercise
of the related option, any option will become immediately exercisable in full
upon the occurrence of the optionee's death, Disability, termination of such
optionee by the Company without Cause or a determination by the Board of
Directors that immediate exercisability would be in the best interests of the
Company and advisable for protection of the rights intended to be granted under
the option, provided that, in the case of an incentive stock option, such
acceleration would not cause the limits of Section 8(a) to be violated.
10
(e) Exercise of Options. Only the optionee to whom the Company
has granted such rights or his guardian or legal representative may exercise
options. Shares may be purchased from time to time on the exercise of options
only by sending a written notice of election to exercise in the form attached to
the Stock Option Agreement, together with full payment of the option price
therefor, to the Secretary of the Company (i) in cash (or an equivalent check or
other form of payment acceptable to the Company), or (ii) if the Committee shall
approve in its sole discretion, other Common Stock of the Company currently
registered in the name of, or beneficially owned by, the holder and surrendered
in due form for transfer to the Company. In the case of payment in the Company's
Common Stock, such stock shall be valued at the Closing Price as of the date of
surrender of the Common Stock (or if no Closing Price was available for such
date, on the next preceding day for which a Closing Price was available);
provided, however, if on the date of surrender the Company's Common Stock is not
listed on any national securities exchange or quoted on an automated quotation
system of a registered securities association, then such stock shall be valued
at its then Fair Market Value.
(f) Termination of Options. Subject to Section 7(c) hereof, if
an optionee ceases to be employed by the Company for any reason, the exercise
period for all options theretofore granted to him shall expire three months
after his employment terminates and the number of shares into which such options
are exercisable will be limited to the number of shares into which such options
were exercisable by him on the date he ceased to be employed, except that: (i)
if an optionee is terminated for Cause, all unexercised options shall terminate
automatically on notice of termination and (ii) if the optionee's employment
shall have been terminated because of his Disability or death or, if the
optionee shall have died during the three month immediately following
termination of his employment (other that termination for Cause), the options
theretofore granted to him may be exercised by the optionee or, in the case of
death, by the estate of the optionee or by a person who acquired the right to
exercise such options by bequest, inheritance or by reason of the death of the
optionee, at any time within twelve months after the optionee's Disability or
death. Notwithstanding the provisions of this Section 7(f), nothing herein will
extend the terms of the options specified in Section 7(a) of the Plan.
(g) Payment of Taxes. Upon settlement of any options, it shall be
a condition to the obligation of the Company that the optionee pay to the
Company such amount as the Company may request for the purpose of satisfying its
liability to withhold federal, state or local income or other taxes.
(h) Applicable Regulations. The Company shall not be obligated to
sell or issue any shares upon exercise of any option if the exercise thereof or
the delivery of shares thereunder would constitute a violation of any federal or
state securities law or listing requirements of any national securities exchange
or automated quotation system of a registered securities association on which
Common Stock may be listed or quoted.
(i) Purchase for Investment. In the event that the Company has
not registered the shares with respect to which options are being exercised
under the Securities Act of 1933, as amended, each optionee electing to purchase
such shares will be required to represent that he is acquiring such shares for
investment purposes only and not with a view to the sale or distribution
thereof, and to make such other representations as are deemed necessary by
counsel to the Company. Stock certificates evidencing such unregistered shares
acquired upon exercise of options shall bear a restrictive legend stating as
follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE PLEDGED OR HYPOTHECATED AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT
OF 1933 OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION
11
IS NOT REQUIRED UNDER SAID ACT, UNLESS IN THE OPINION OF COUNSEL FOR THE COMPANY
SUCH A LEGEND IS NOT NECESSARY.
(j) Rights as a Stockholder. The optionee shall have no rights as
a stockholder with respect to any shares covered by an option until the date of
issuance of a stock certificate for such shares. Without limiting the foregoing,
the Company shall make no adjustment for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
(k) Transfer of Option. A stock option shall not be transferable
other than by will or by the laws of descent and distribution.
(l) Form of Option. Options shall be evidenced by Stock Option
Agreements ("Stock Option Agreements") in such form as shall not be inconsistent
with the Plan. Any Stock Option Agreement entered into pursuant hereto may
contain such other terms, provisions and conditions not inconsistent herewith as
shall be determined by the Committee.
8. Incentive Stock Options. Options granted under the Plan to an
employee of the Company or any subsidiary may be incentive stock options (as
defined under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code")) or nonstatutory stock options, as determined by the Committee at the
time of grant of an option and subject to the applicable provisions of Section
422 of the Code and the regulations promulgated thereunder.
(a) Limit. No incentive stock option may be granted to an
optionee if the Closing Price in the aggregate at the date of grant of shares
with respect to which such option would first become exercisable in any calendar
year, when added to the Closing Price in the aggregate at the date of grant of
any other shares with respect to which an incentive stock option granted to such
optionee under this plan (or any other incentive stock option plan maintained by
the Company or any subsidiary) first becomes exercisable in such calendar year,
would exceed $100,000.
(b) 10% Stockholder. In the case of an incentive stock option
granted to an optionee who, immediately before the grant of such option, owns
shares representing more than 10% of the total combined voting power of all
classes of the shares of the Company, in no event shall the Option Price be less
than 110% of the Closing Price (as defined in Section 7(b) of the Plan) per
share of Common Stock on the date of grant, nor shall the option by its terms be
exercisable more than 5 years after the date such option is granted.
9. Use of Proceeds. Proceeds from the sale of Common Stock under
the Plan shall be added to the general funds of the Company.
10. Indemnification of Committee. In addition to such other
rights of indemnification as they may have as members of the Board of Directors
or as members of the Committee, the Company shall indemnify the members of the
Committee against all costs and expenses reasonably incurred by them in
connection with any action, suit or proceeding to which they or any of them may
be party to by reason of any action taken or failure to act under or in
connection with the Plan or any award made under the Plan, and against all
amounts paid by them in satisfaction of a judgment in any such action, suit or
proceeding, except a judgment based upon a finding of bad faith. Upon the
institution of any such action, suit or proceeding, a Committee member shall
notify the Company in writing, giving the Company an opportunity, at its own
expense, to handle and defend the same before such Committee member undertakes
to handle it on his own behalf.
11. Successors in Interest. The Plan may be adopted and continued
by any successor or successors of the Company, whether by merger, consolidation,
12
sale of assets or otherwise. Whether or not the Plan is so adopted and
continued, the obligations of the Company under the Plan shall be binding upon
any such successor or successors, and for this purpose reference in the Plan to
the Company shall be deemed to include any such successors.
12. Amendment or Termination of the Plan. The Board of Directors
may in its discretion terminate the Plan with respect to any shares for which
options have not theretofore been granted. The Board of Directors and the
Committee shall have the right to alter or amend the Plan or any part thereof
from time to time; provided, however, no change which would impair the right of
an optionee may be made in any options theretofore granted, without the consent
of such optionee; and provided, further, that the Board of Directors or the
Committee may not, without appropriate approval of not less than a majority of
the shares of Common Stock (or other voting stock entitled to vote thereon at
the time outstanding) present in person or by proxy at a meeting of holders of
such shares, alter or modify the Plan so as to increase the maximum amount of
Common Stock which may be issued under the Plan, extend the term of the Plan or
options granted thereunder, reduce the price at which options may be granted or
exercised, or change the eligibility requirements for participation in the Plan.
13. Expenses. The Company shall bear the expenses of administering
the Plan, other than taxes or similar charges payable by any optionee.
14. Effective Date. The Plan shall be effective upon the date on
which the Board of Directors adopts the Plan. However, the Plan shall be
effective only if approved by the stockholders of the Company within twelve
months of the date the Plan is adopted by the Board of Directors, and options
granted prior to the date of such stockholder approval shall lapse and be of no
further force or effect if such approval is not obtained.
15. Funding. Anything herein contained to the contrary
notwithstanding, the Company shall not be required to set aside any amount at
any time to fund any obligations of the Company to make any payments to any
optionee.
16. Right to Discharge Reserved. Nothing in the Plan shall confer
upon an optionee or any other person the right to continue in the employment of
the Company or any subsidiary or affect any right that the Company or such
subsidiary may have to terminate the employment of the optionee or any other
person.
17. Governing Law. All questions pertaining to the construction,
validity and effect of the Plan, or to the rights of any person under the Plan,
shall be determined in accordance with the laws of the State of New York.
13
EXHIBIT 5.1
Bingham Dana LLP
399 Park Avenue
New York, NY 10022-4689
May 15, 2002
Barnwell Industries, Inc.
1100 Alakea Street, Suite 2900
Honolulu, Hawaii 96813-2840
Dear Sir or Madam:
We have acted as counsel for Barnwell Industries, Inc., a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 to be filed with the Securities and Exchange Commission on
or about May 15, 2002 (the "Registration Statement").
The Registration Statement covers the registration of 130,000 shares of
Common Stock, $0.50 par value per share ("Common Stock"), of the Company (the
"Shares"), which are to be issued by the Company upon exercise of stock options
to be issued pursuant to the Barnwell Industries, Inc. 1998 Stock Option Plan,
as amended (the "Plan").
In connection with this opinion, we have examined the following documents:
(a) the Plan;
(b) a certificate of the Secretary of State of the State of
Delaware as to the good standing of the Company;
(c) copies, certified by the Secretary of State of the State of
Delaware, of the Company's Certificate of Incorporation on file in the office of
the Secretary of State;
(d) a certificate executed by the an officer of the Company,
certifying as to, and attaching copies of, the Company's Certificate of
Incorporation as amended, the Company's Amended and Restated By-Laws, the Plan,
and certain resolutions of the Company's Board of Directors authorizing the Plan
and the issuance of Shares thereunder; and
(e) a certificate executed by an officer of the Company certifying
as to the number of shares of Common Stock issued, and the number of shares of
Common Stock reserved for issuance.
This opinion is based entirely on our review of the documents listed
in the preceding paragraph, and we have made no other documentary review or
investigation of any kind whatsoever for purposes of this opinion. In our
examination, we have assumed the genuineness of all signatures, the conformity
to the originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form,
and the legal competence of each individual executing any document. As to all
matters of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind) we have relied
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entirely upon certificates of officers of the Company, and have assumed, without
independent inquiry, the accuracy of those certificates.
We further assume, without investigation, that (a) all options with
respect to the Shares have been or will be granted in accordance with the terms
of the Plan, that all Shares issued upon exercise of options granted or to be
granted pursuant to the Plan will be issued in accordance with the terms of such
Plan and that the purchase price of all Shares will be greater than or equal to
the par value per share of the Shares; (b) upon issuance of the Shares under the
Plan, the Company will have a sufficient number of authorized shares of Common
Stock reserved for the issuance of the Shares; and (c) prior to the dates of
issuance of the Shares, no change occurs in the applicable law or the pertinent
facts.
Subject to the limitations set forth below, we have made such examination
of law as we have deemed necessary for the purposes of this opinion. This
opinion is limited solely to the Delaware General Corporation Law as applied by
courts located in Delaware.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and delivered upon the exercise of options duly granted
pursuant to the Plan and against the payment of the purchase price therefore,
will be validly issued, fully paid, and non-assessable.
We express no opinion as to the effect of events occurring, circumstances
arising, or changes of law becoming effective or occurring, after the date
hereof on the matters addressed in this opinion letter, and we assume no
responsibility to inform you of additional or changed facts, or changes in law,
of which we may become aware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are within the category of persons whose consent is required by Section 7 of the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
Very truly yours,
/s/ Bingham Dana LLP
BINGHAM DANA LLP
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Barnwell Industries, Inc.:
We consent to the incorporation by reference in this Registration Statement of
Barnwell Industries, Inc. on Form S-8 of our report dated December 4, 2001,
appearing in the Annual Report on Form 10-KSB of Barnwell Industries, Inc. for
the fiscal year ended September 30, 2001.
/s/ KPMG LLP
Honolulu, Hawaii
May 14, 2002