Post Effective Amendment No. 2 to Form S-3 for Monmouth Real Estate Investment Corporation
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 16, 2003
Registration No. 333-104502
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MONMOUTH REAL ESTATE INVESTMENT CORPORATION
(Exact name of registrant as specified in charter)
Delaware 22-1897375
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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Juniper Business Plaza, Suite 3-C, 3499 Route 9 North, Freehold, New Jersey 07728
732-577-9996
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Anna T. Chew
Juniper Business Plaza, Suite 3-C, 3499 Route 9 North, Freehold, New Jersey 07728
732-577-9996
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Gary D. Gilson
Blackwell Sanders Peper Martin, LLP
Two Pershing Square
2300 Main Street, Suite 1000
Kansas City, Missouri 64108
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Approximate date of commencement of proposed sale to the public:
From time to time after the Registration Statement becomes effective
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] _________
If this Form is a post-effective amendment filed pursuant to Rule
462(c)under the Securities Act, check the following box and list the Securities
Act registrations statement number of the earlier effective registration
statement for the same offering. [ ] ___________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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EXPLANATORY NOTE
On May 15, 2003, Monmouth Real Estate Investment Corporation, a Maryland
corporation ("Monmouth Maryland") became the successor issuer to Monmouth Real
Estate Investment Corporation, a Delaware corporation ("Monmouth Delaware"), as
a result of the merger of Monmouth Delaware with and into Monmouth Maryland,
with Monmouth Maryland being the surviving corporation. Immediately prior to the
merger, Monmouth Maryland had no assets or liabilities other than nominal assets
or liabilities. Monmouth Maryland acquired all of the assets and assumed all of
the liabilities and obligations of Monmouth Delaware in the merger. Pursuant to
Rule 414(d) promulgated under the Securities Act of 1933, as amended, Monmouth
Maryland, as a successor issuer to Monmouth Delaware, hereby expressly adopts
the Registration Statement on Form S-3 (Registration No. 333-104502) as its own
Registration Statement for all purposes of the Securities Act and the Securities
Exchange Act of 1934, as amended.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an itemized statement of estimated expenses to be paid by
the Registrant in connection with the issuance and sale of the securities being
registered.
Securities and Exchange Commission registration fee....... $ 775
Accounting fees and expenses............................... 5,000*
Printing fees.............................................. 3,000*
Legal fees and expenses..................................... 5,000*
Transfer agent, registrar and trustee fees.................. -0-
Miscellaneous............................................... 5,000*
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Total.............................................. $ 18,775*
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*Estimated
Item 15. Indemnification of Directors and Officers
Monmouth Real Estate Investment Company (the "Company") is organized in the
State of Maryland. The Maryland General Corporation Law ("MGCL") permits a
corporation to include in its charter a provision limiting the liability of its
directors and officers to the corporation and its stockholders for money damages
except for liability resulting from (i) actual receipt of an improper personal
benefit or profit in money, property or services or (ii) active and deliberate
dishonesty established by a final judgment as being material to the cause of
action.
The MGCL requires a corporation to indemnify its present and former
directors or officers who have been successful, on the merits or otherwise, in
the defense of any proceeding to which the person is made a party by reason of
his or her service in that capacity. The MGCL permits a corporation to indemnify
its present and former directors and officers in connection with any proceeding
to which they may be made a party by reason of their service in those or other
capacities unless it is established that (i) the act or omission of the
indemnified party 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, (ii) the indemnified party actually received an improper personal
benefit in money, property or services or (iii) in the case of any criminal
proceeding, the indemnified party had reasonable cause to believe that the act
or omission was unlawful.
The indemnification may be against judgments, penalties, fines, settlements
and reasonable expenses actually incurred by the director or officer in
connection with the proceeding; provided, however, that if the proceeding is one
by or in the right of the Maryland corporation, indemnification may not be made
in respect of any proceeding in which the director or officer has been adjudged
to be liable to the corporation.
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In addition, a director or officer of a Maryland corporation may not be
indemnified with respect to any proceeding charging improper personal benefit to
the director or officer in which the director or officer was adjudged to be
liable on the basis that personal benefit was improperly received. The
termination of any proceeding by conviction or upon a plea of nolo contendere or
its equivalent or an entry of an order of probation prior to judgment creates a
rebuttal presumption that the director or officer did not meet the requisite
standard of conduct required for permitted indemnification. The termination of
any proceeding by judgment, order or settlement, however, does not create a
presumption that the director or officer did not meet the requisite standard of
conduct for permitted indemnification.
As a condition to advancing expenses to a director who is a party to a
proceeding, the MGCL requires the Company to obtain (a) 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 Company and (b) a
written statement by or on his or her behalf to repay the amount paid or
reimbursed by the Company if it is ultimately determined that the standard of
conduct was not met.
The Company's Articles of Incorporation provide that the Company must
indemnify its directors and officers, whether serving the Company or at its
request any other entity, to the full extent required or permitted by Maryland
law, including the advance of expenses under the procedures and to the full
extent permitted by law. The Company's Articles of Incorporation contain a
provision which limits a director's or officer's liability for monetary damages
to the Company or its stockholders.
The Company has entered into Indemnification Agreements with its directors
and certain officers which generally provide that the Company is required to
indemnify any director or officer who was, is or becomes a party to or witness
or other participant in: (i) any threatened, pending or completed action, suit
or proceeding in which such director or officer may be or may have been
involved, as a party or otherwise, by reason of the fact that the director or
officer was acting in his or her capacity as a director or officer of the
Company; or (ii) any inquiry, hearing or investigation that such director or
officer in good faith believes might lead to the institution of any such action,
suit or proceeding against any and all expenses, to the fullest extent permitted
by law.
Item 16. Exhibits.
Exhibit Description of Exhibit
Number Filed herewith:
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(4.1) Articles of Incorporation of Monmouth Real Estate Investment
Corporation (incorporated by reference from Appendix B of
Monmouth Real Estate Investment Corporation's Definitive Proxy
Statement, filed with the SEC on April 7, 2003).
(4.2) Bylaws of Monmouth Real Estate Investment Corporation
(incorporated by reference from Appendix C of Monmouth Real
Estate Investment Corporation's Definitive Proxy Statement, filed
with the SEC on April 7, 2003).
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(5) Opinion of Blackwell Sanders Peper Martin LLP.*
(8) Opinion of Blackwell Sanders Peper Martin LLP regarding tax
matters.
(23.1) Consent of Blackwell Sanders Peper Martin LLP (included in
Exhibits 5 and 8).
(23.2) Consent of KPMG LLP.*
(24) Power of Attorney.*
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*Previously Filed
Item 17. Undertakings.
The 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 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 thereto) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
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,
including (but not limited to) any addition or deletion of a managing
underwriter;
Provided, however, that paragraphs 1(i) and (1)(ii) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and 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 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.
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4. The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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
shall be deemed to be the initial bona fide offering thereof.
5. 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 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 Act and will
be governed by the final adjudication of such issue.
[The remainder of this page is intentionally left blank.]
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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 the
requirements for filing on Form S-3 and has duly caused this post-effective
amendment to this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Township of Freehold, State of
New Jersey on the 16th day of July, 2003:
Monmouth Real Estate Investment Corporation
By: /s/ EUGENE W. LANDY
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Printed Name: Eugene W. Landy
Title: Chairman of the Board and President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 16th day of July, 2003.
/s/ Eugene W. Landy /s/ Matthew I. Hirsch*
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Eugene W. Landy Matthew I. Hirsch
Chairman of the Board, Director
President and Director
(Principal Executive Officer)
/s/ Cynthia J. Morgenstern /s/Charles P. Kaempffer*
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Cynthia J. Morgenstern Charles P. Kaempffer
Executive Vice President and Director Director
/s/ Ernest V. Bencivenga /s/ Samuel A. Landy*
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Ernest V. Bencivenga Samuel A. Landy
Treasurer and Director Director
/s/ Anna T. Chew /s/ John R. Sampson*
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Anna T. Chew John R. Sampson
Controller and Director Director
(Principal Financial and Accounting Officer)
/s/ Daniel D. Cronheim* /s/ Peter J. Weidhorn*
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Daniel D. Cronheim Peter J. Weidhorn
Director Director
*By: Eugene W. Landy, attorney in fact
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Stephen B. Wolgrin
Director
Index to Exhibits
Exhibit Description of Exhibit
Number Filed herewith:
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(4.1) Articles of Incorporation of Monmouth Real Estate Investment
Corporation (incorporated by reference from Appendix B of
Monmouth Real Estate Investment Corporation's Definitive Proxy
Statement, filed with the SEC on April 7, 2003).
(4.2) Bylaws of Monmouth Real Estate Investment Corporation
(incorporated by reference from Appendix C of Monmouth Real
Estate Investment Corporation's Definitive Proxy Statement, filed
with the SEC on April 7, 2003).
(5) Opinion of Blackwell Sanders Peper Martin LLP.*
(8) Opinion of Blackwell Sanders Peper Martin LLP regarding tax
matters.
(23.1) Consent of Blackwell Sanders Peper Martin LLP (included in
Exhibits 5 and 8).
(23.2) Consent of KPMG LLP.*
(24) Power of Attorney.*
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*Previously Filed