UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 10, 2004
BRT REALTY TRUST
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(Exact name of Registrant as specified in charter)
Massachussets 001-07172 13-2755856
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(State or other (Commission file No.) (IRS Employer
jurisdiction of I.D. No.)
incorporation)
60 Cutter Mill Road, Suite 303, Great Neck, New York 11021
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code 516-466-3100
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 8.01. Other Events.
BRT Realty Trust (the "Trust") hereby files this Form 8-K for the purpose of
updating the description of its capital stock, for which this Form 8-K will be
incorporated by reference into any of the Trust's registration statements on
Form S-3, S-4 or S-8 (or applicable successor forms) to be filed by the Trust in
the future, until such capital stock description is subsequently amended or
modified and included in a document filed by the Trust with the United States
Securities and Exchange Commission pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended.
DESCRIPTION OF CAPITAL STOCK
General
The Trust is authorized to issue an unlimited number of Beneficial
Shares, $3.00 par value, of which 7,652,295 Beneficial Shares were issued and
outstanding as of the date of this Form 8-K (excluding treasury shares). The
outstanding Beneficial Shares are validly issued, fully paid and non assessable.
The Trust is also authorized to issue 10,000,000 Preferred Shares, $1.00 par
value, none of which is issued and outstanding. The Trustees are authorized to
issue the Preferred Shares in series and to establish from time to time the
number of Preferred Shares to be included in such series and to fix the
designation and any preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, and terms and
conditions of redemption of the Preferred Shares of each series.
Shareholders of the Trust do not have preemptive rights. Holders of
record of Beneficial Shares are entitled to cast one vote for each Beneficial
Share held on all matters presented for a vote of the shareholders. In meetings
where a quorum is present shareholder action requires approval of a majority of
votes cast.
The Declaration of Trust provides that special meetings of shareholders
may be called by the President or a majority of the Trustees and shall be called
by the Secretary upon the written request of shareholders holding not less than
20% of the outstanding shares entitled to vote at such a meeting.
Subject to the preferential rights, if any, of the holders of Preferred
Shares, holders of Beneficial Shares are entitled to receive distributions when
and as declared by the Board of Trustees out of funds legally available
therefor. In the event of liquidation, shareholders are entitled to share
ratably in the assets available for distribution after payment of liabilities
and of such preferential amounts, if any, as the holders of any Preferred Shares
at the time outstanding shall be entitled. There are no conversion, redemption
(except as may be necessary for REIT qualification, as set forth below),
exchange, sinking fund, or similar provisions regarding the Beneficial Shares.
American Stock Transfer & Trust Company is the Transfer Agent and
Registrar for the Beneficial Shares.
Shareholder Liability to Third Persons and Indemnification by the Trust
The Declaration of Trust provides that shareholders shall not be
personally liable in connection with the Trust's property or the affairs of the
Trust. The Declaration of Trust further provides that the Trust shall indemnify
and hold harmless each shareholder from all claims and liabilities to which the
shareholder may become subject by reason of his being or having been a
shareholder, and that the Trust shall reimburse each shareholder for all legal
and other expenses reasonably incurred by him in connection with any such claim
or liability. However, with respect to tort claims and contractual claims where
shareholder liability is not disavowed as provided above, claims for taxes and
certain statutory liabilities, the shareholders may, in some jurisdictions, be
personally liable to the extent that such claims are not satisfied by the Trust.
The Declaration of Trust provides that upon payment of any such claim the
shareholders will be entitled to reimbursement by the Trust. Inasmuch as the
Trust carries public liability insurance which it considers adequate, any risk
of personal liability to shareholders is limited to situations in which the
Trust's assets plus its insurance coverage would be insufficient to satisfy the
claims against the Trust and its shareholders. The Trust intends, as a matter of
general policy, to make investments with a view to avoiding, to the extent
possible, shareholder liability for obligations of the Trust by making such
investments based on advice of counsel, or with due consideration as to the
availability of indemnification or insurance coverage, as well as other
considerations.
Repurchase and Transferability of Shares
If the Trustees shall at any time and in good faith be of the opinion
that direct or indirect ownership of securities of the Trust has or may become
concentrated to an extent which is contrary to the requirements of the REIT
provisions of the Code, the Trustees have the power, in their sole discretion,
to refuse to sell, transfer or deliver Beneficial Shares to any person, or to
call for redemption from the person or entity whose most recent acquisition or
purchase of Beneficial Shares resulted in a concentration of Beneficial Shares
which is believed to be contrary to the REIT provisions of the Code, a number of
Beneficial Shares held by such person or entity sufficient in the opinion of the
Trustees to bring the direct or indirect ownership of Beneficial Shares of the
Trust into conformity with the requirements of the REIT provisions of the Code.
The redemption price is to be equal to the fair market value of the Beneficial
Shares as reflected in the closing bid price for the Beneficial Shares as of the
date fixed for redemption. From and after the date fixed for redemption by the
Trustees, the holder of any Beneficial Shares so called for redemption ceases to
be entitled to dividends, voting rights and other benefits with respect to such
Beneficial Shares, except only the right to payment of the redemption price
fixed as aforesaid.
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BRT REALTY TRUST
Date: September 10, 2004 By: /s/ Simeon Brinberg
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Simeon Brinberg
Secretary