0000899681-14-000460.txt : 20140626 0000899681-14-000460.hdr.sgml : 20140626 20140619172915 ACCESSION NUMBER: 0000899681-14-000460 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20140619 DATE AS OF CHANGE: 20140619 GROUP MEMBERS: ESTATE OF R. DAVID SUDARSKY GROUP MEMBERS: MORTON H. KINZLER SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BARNWELL INDUSTRIES INC CENTRAL INDEX KEY: 0000010048 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 720496921 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-20279 FILM NUMBER: 14931122 BUSINESS ADDRESS: STREET 1: 1100 ALAKEA ST. STREET 2: SUITE 2900 CITY: HONOLULU STATE: HI ZIP: 96813 BUSINESS PHONE: 808-531-8400 MAIL ADDRESS: STREET 1: 1100 ALAKEA ST. STREET 2: SUITE 2900 CITY: HONOLULU STATE: HI ZIP: 96813 FORMER COMPANY: FORMER CONFORMED NAME: BMA CORP/TN DATE OF NAME CHANGE: 19770324 FORMER COMPANY: FORMER CONFORMED NAME: BARNWELL OFFSHORE INC DATE OF NAME CHANGE: 19671101 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Kinzler Morton H. CENTRAL INDEX KEY: 0001421821 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 1100 ALAKEA STREET STREET 2: SUITE 2900 CITY: HONOLULU STATE: HI ZIP: 96813 SC 13D/A 1 barnwell-sc13da_061714.htm AMENDMENT NO. 15 barnwell-sc13da_061714.htm
SECURITIES AND EXCHANGE COMMISSION
 Washington, D.C. 20549
Schedule 13D/A
(Amendment No. 15)
Under the Securities Exchange Act of 1934
 
 
Barnwell Industries, Inc.
(Name of Issuer)
 
 
Common Stock, $0.50 par value per share
(Title of Class of Securities)
 
 
068221100
(CUSIP Number)
 
 
Morton H. Kinzler
c/o Barnwell Industries, Inc.
1100 Alakea Street, Suite 2900
Honolulu, Hawaii 96813
(808) 531-8400
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications)
 
 
August 6, 2009
(Date of Event which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box o.
 
 NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See Rule 13d-7 for other parties to whom copies are to be sent.
 
 *The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
 
 The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
 
 
 

 
 
 
 
   
 
 
 SCHEDULE 13D/A
 
 
CUSIP No.: 068221100
 
1.
NAME OF REPORTING PERSON
   
 
Morton H. Kinzler
   
   
2.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
   
 
(a) [   ]
 
(b) [X]
   
   
3.
SEC USE ONLY
   
   
4.
SOURCE OF FUNDS                                                                            PF; OO
   
   
5.
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)                                                                                             [   ]
   
   
6.
CITIZENSHIP OR PLACE OF ORGANIZATION
   
 
United States
 
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
7.
SOLE VOTING POWER 
1,352,560
8.
SHARED VOTING POWER 
727,600(1)
9.
SOLE DISPOSITIVE POWER 
1,352,560
10.
SHARED DISPOSITIVE POWER
727,600(1)
 
   
11.
Aggregate Amount Beneficially Owned by Each Reporting Person  
2,082,008(2)
   
   
12.
Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares  
[   ]
   
   
13.
Percent of Class Represented By Amount In Row (11)    
25.2%(3)
   
   
14.
Type of Reporting Person 
IN
 
(1)           The 727,600 shares common stock, par value $0.50 per share (the “Common Stock”), of Barnwell Industries, Inc., a Delaware corporation (the “Company”), are owned by the Estate of R. David Sudarsky, to which Mr. Kinzler has been appointed executor.
 
(2)           Includes 727,600 shares of Common Stock owned by the Estate of R. David Sudarsky and 1,848 shares Common Stock owned by Mr. Kinzler’s wife, to which Mr. Kinzler disclaims beneficial ownership.
 
(3)           Based on 8,277,160 shares of Common Stock of the Company outstanding as of May 8, 2014, as represented in the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014.

 
 
 
 

 
 
 
 
   
 
 
CUSIP No.: 068221100
 
1.
NAME OF REPORTING PERSON
   
 
Estate of R. David Sudarsky
   
   
2.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
   
 
(a) [   ]
 
(b) [X]
   
   
3.
SEC USE ONLY
   
   
4.
SOURCE OF FUNDS                                                                            OO
   
   
5.
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)                                                                                             [   ]
   
   
6.
CITIZENSHIP OR PLACE OF ORGANIZATION
   
 
State of Florida
 
Number of
Shares
Beneficially
Owned by Each
Reporting
Person With
7.
SOLE VOTING POWER  0
 
8.
SHARED VOTING POWER 
727,600
(1)
9.
SOLE DISPOSITIVE POWER  0
 
10.
SHARED DISPOSITIVE POWER
727,600
(1)
 
   
11.
Aggregate Amount Beneficially Owned by Each Reporting Person  
727,600
 
   
   
12.
Check Box If The Aggregate Amount In Row (11) Excludes Certain Shares   [  ]
 
   
   
13.
Percent of Class Represented By Amount In Row (11)     8.8%
(2)
   
   
14.
Type of Reporting Person  OO
 
 
(1)           The Executor of the Estate of R. David Sudarsky is Morton H. Kinzler.
 
(2)           Based on 8,277,160 shares of Common Stock of the Company outstanding as of May 8, 2014, as represented in the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014.

 
 
 
 

 
 
 
Explanatory Note
 
This filing constitutes Amendment No. 15 to the Schedule 13D relating to the common stock, par value $0.50 per share (the “Common Stock”), of Barnwell Industries, Inc., a Delaware corporation, and hereby amends the Schedule 13D filed with the Securities and Exchange Commission, as last amended by Amendment No. 14 filed on December 21, 2012, to furnish the additional information set forth herein.  Morton H. Kinzler has been appointed as the executor of the Estate of R. David Sudarsky (the “Estate”), in accordance with the terms of the will of R. David Sudarsky.  Both Mr. Kinzler and the Estate own shares of Common Stock.
 
Item 2.    Identity and Background.
 
Item 2 is hereby amended and restated in its entirety as follows:
 
(a)  The names of the reporting persons are Morton H. Kinzler and the Estate of R. David Sudarsky.
 
(b)  Mr. Kinzler’s business address is c/o Barnwell Industries, Inc., 1100 Alakea Street, Suite 2900, Honolulu, Hawaii 96813.  The Estate’s business address is c/o Stephen Newman, Esq., The Wagner Law Group, 7108 Fairway Drive, Suite 125, Palm Beach Gardens, Florida 33418.
 
(c)  Mr. Kinzler is Chairman of the Board and Chief Executive Officer of the Company.  The Estate was organized upon the death of R. David Sudarsky on March 31, 2014.
 
(d)  Neither Mr. Kinzler nor the Estate have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) during the last five years.
 
(e)  Neither Mr. Kinzler nor the Estate have, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
 
(f)  Mr. Kinzler is a citizen of the United States.  The Estate was created under the laws of the State of Florida upon the death of R. David Sudarsky.
 
Item 3.    Source and Amount of Funds or Other Consideration.
 
Item 3 is hereby amended to add the following:
 
On March 31, 2014, Mr. Kinzler was appointed as the executor of the Estate, in accordance with the terms of the will of R. David Sudarsky.  As a result such appointment, Mr. Kinzler is charged with collecting and distributing the assets of the Estate, including the 727,600 shares of Common Stock held by the Estate.  Accordingly, indirect beneficial ownership may be attributable to Mr. Kinzler with respect to the 727,600 shares of Common Stock held by the Estate.
 
Between September 27, 2013 and September 30, 2013, Mr. Kinzler acquired with personal funds an aggregate of 1,000 shares of Common Stock in various open-market transactions.
 
Mr. Kinzler was appointed attorney-in-fact by R. David Sudarsky pursuant to a Durable Power of Attorney dated August 6, 2009 (the “Power of Attorney”), which Power of Attorney terminated at the death of Dr. Sudarsky on March 31, 2014.  Under the Power of Attorney, Mr. Kinzler was authorized to manage all of Dr. Sudarsky’s property and affairs, including: selling Dr. Sudarsky’s stocks; signing and delivering assignments or stock powers and other documents required for sale; purchasing stocks; voting Dr. Sudarsky’s stock at shareholders’ meetings and by proxy on Dr. Sudarsky’s behalf; and generally handling or managing Dr. Sudarsky’s investments.  As a result of the Power of Attorney, Mr. Kinzler shared with Dr. Sudarsky the above powers with respect to the 727,600 shares of Common Stock held by Dr. Sudarsky.  Accordingly, indirect beneficial ownership may have been attributable to Mr. Kinzler with respect to the 727,600 shares of Common Stock held by Dr. Sudarsky.  However, during the period of time when the Power of Attorney was effective, Mr. Kinzler did not vote or sell any of the 727,600 shares of Common Stock held by Dr. Sudarsky.
 
Item 4.   Purpose of the Transaction.
 
Item 4 is hereby amended to add the following:
 
 
 
 

 
 
Mr. Kinzler was Chairman of the Board and Chief Executive Officer of the Company prior to the acquisition of indirect beneficial ownership of the 727,600 shares of Common Stock held by Dr. Sudarsky and the Estate described in Item 3, and continues to serve in those capacities.  Mr. Kinzler held 1,351,560 shares of Common Stock in his own name prior to his acquisition of indirect beneficial ownership of an additional 727,600 shares of Common Stock through the Power of Attorney (as disclosed in Item 3), subsequently acquired 1,000 shares of Common Stock (as disclosed in Item 3) for investment purposes, and held 1,352,560 shares of Common Stock in his own name prior to his acquisition of indirect beneficial ownership of an additional 727,600 shares of Common Stock through his appointment as executor of the Estate (as disclosed in Item 3).
 
Mr. Kinzler may, from time to time, acquire additional shares of Common Stock for investment purposes if market conditions are favorable.  Mr. Kinzler may also dispose of some or all of the shares of Common Stock that he beneficially owns.
 
Except as set forth in this Item 4, Mr. Kinzler has no other plans or proposals with respect to the Company, including any of the matters referred to in paragraphs (a) through (j) of Item 4 of Schedule 13D.
 
Item 5.    Interest in Securities of the Issuer.
 
Items 5 is hereby amended and restated in its entirety as follows:
 
(a)  Mr. Kinzler may be deemed to beneficially own 2,082,008 shares of Common Stock.  The foregoing 2,082,008 shares of Common Stock includes 727,600 shares of Common Stock owned by the Estate of R. David Sudarsky and 1,848 shares Common Stock owned by Mr. Kinzler’s wife, to which Mr. Kinzler disclaims beneficial ownership.  The foregoing 2,082,008 shares of Common Stock represent approximately 25.2% of the Company’s outstanding Common Stock (based on 8,277,160 shares of Common Stock of the Company outstanding as of May 8, 2014, as represented in the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014).  The Estate beneficially owns 727,600 shares of Common Stock.
 
(b)  For Mr. Kinzler, see Items 7-10 on his Cover Page for information on voting and dispositive power with respect to the shares of Common Stock disclosed in Item 5(a).  For the Estate, see Items 7-10 on its Cover Page for information on voting and dispositive power with respect to the shares of Common Stock disclosed in Item 5(a).
 
(c)  For Mr. Kinzler, see Item 3 for information on transactions with respect to the Common Stock during the past sixty days or since the date on which Mr. Kinzler last filed an amendment to this Schedule 13D.  For the Estate, see Item 3 for information on transactions with respect to the Common Stock during the past sixty days.
 
(d)  For Mr. Kinzler, none, except for 727,600 shares of Common Stock owned by the Estate of R. David Sudarsky and 1,848 shares of Common Stock owned by Mr. Kinzler’s wife disclosed in Item 5(a).  For the Estate, none, except that Mr. Kinzler is charged with collecting and distributing the assets of the Estate, including the 727,600 shares of Common Stock disclosed in Item 5(a).
 
(e)  Not applicable for either Mr. Kinzler or the Estate.
 
Item 6.    Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
 
Items 6 is hereby amended and restated in its entirety as follows:
 
Mr. Kinzler was appointed attorney-in-fact by Dr. Sudarsky pursuant to the Power of Attorney, as described in Item 3.  The description of terms of the Power of Attorney set forth herein does not purport to be complete and is qualified in its entirety by the full text of the Power of Attorney, a copy of which is attached as Exhibit 99.1 to this Schedule 13D/A and is incorporated by reference herein.  The Power of Attorney terminated at the death of Dr. Sudarsky on March 31, 2014.
 
Mr. Kinzler and the Estate are parties to an agreement with respect to the joint filing of this Schedule 13D/A and any amendments thereto. A copy of such agreement is attached as Exhibit 99.2 to this Schedule 13D/A and is incorporated by reference herein.
 
Item 7.    Material to be Filed as Exhibits.
 
99.1           Durable Power of Attorney dated August 6, 2009.
 
99.2           Joint Filing Agreement dated June 19, 2014
 
 
 
 

 

 
SIGNATURE
 
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
 
 
Dated: June 19, 2014
By:
/s/ Morton H. Kinzler
   
Name: Morton H. Kinzler
 

 
 
ESTATE OF R. DAVID SUDARSKY
     
 
By:
/s/ Morton H. Kinzler
   
Name: Morton H. Kinzler
Title:   Executor

EX-99.1 2 barnwell-ex991_061714.htm DURABLE POWER OF ATTORNEY barnwell-ex991_061714.htm
Exhibit 99.1
 
DURABLE POWER OF ATTORNEY
 
By this Durable Power of Attorney, I, R. DAVID SUDARSKY, presently residing in Fort Lauderdale, Broward County, Florida, appoint my friend, MORTON H. KINZLER, presently residing in Hollywood, Florida, as my attorney-in-fact to manage my affairs.
 
This Durable Power of Attorney shall not be affected by any physical or mental disability that I may suffer, except as provided by statute, and it shall be exercisable from this date. All acts done pursuant to this power by my attorney-in-fact shall bind me, my heirs, devisees, and personal representatives. This power of attorney is nondelegable.
 
All of my property and interest in property are subject to this Durable Power of Attorney.
 
Without limiting the broad powers conferred by the preceding provisions, I authorize my attorney-in-fact to:
 
1.           Collect all sums of money and other property that may be payable or belonging to me and execute receipts, releases, cancellations, or discharges.
 
2.           Settle any accounts in which I have any interest and pay or receive the balance of that account.
 
3.           Borrow money on such terns and with such security as my attorney-in-fact thinks fit and execute all notes, mortgages, and other instruments that my attorney-in-fact finds necessary or desirable.
 
4.           Draw, accept, endorse or otherwise deal with any checks or other commercial instruments, specifically including the right to make withdrawals from any checking or savings account.
 
5.           Redeem bonds issued by the United States Government or any of its agencies, any other bonds, any certificates of deposit, or other similar assets belonging to me.
 
6.           Sell any of my assets including but not limited to real estate, bonds, shares of stock, warrants, or debentures; execute all assignments and deeds or other instruments necessary or proper for transferring them to the purchaser or purchasers; and give good receipts and discharges for all money payable with regard to them.
 
7.           Invest the proceeds of any redemptions or sales and any other money in bonds, shares of stock and other securities, or real estate, as my attorney-in-fact thinks fit.
 
8.           Vote at all meetings of stockholders of any company and otherwise act as my proxy with respect to my shares of stock or other securities or investments that now or hereafter belong to me, and appoint substitutes or proxies with respect to any of those shares of stock.
 
9.           Execute on my behalf any tax return and act for me in any examination, audit, hearing, conferences, or litigation relating to taxes, including the authority to file and prosecute refund claims and enter into any settlements.
 
10.        Prosecute, defend and settle all actions or other legal proceedings with regard to any of my assets in any manner.
 
11.        Purchase bonds issued by the United States, commonly known as “flower bonds,” that can be applied at face or maturity value on account of estate tax liabilities.
 
12.        Transfer any of my assets to the trustee of any living trust of which I am or may become grantor.
 
13.         Do anything regarding my estate, property, and affairs that I could do myself, if competent.
 
14.         Make gifts of any of my property to any person (including any attorney-in-fact) in connection with estate and income tax planning procedures for me; provided, however, that such gifts quality for the federal gift tax exclusion allowable per donee and for the exclusion for certain transfers for educational expenses or medical expenses under section 2503(b) and (e) of the Internal Revenue Code of 1986, as amended from time to time (the “Code”).
 
15.         Exercise any power of revocation or amendment retained by me over any living trust of which I am or may become grantor.
 
16.           Arrange for and consent to any medical, therapeutic, and/or surgical procedures for me, including the administration of drugs.
 
17.         Enter any safe deposit box held in my name (alone or jointly) and remove any or all contents.
 
18.         Collect and receive all sums of money and other property that may be payable to me by reason of my participation in a qualified retirement plan; by reason of my being the beneficiary of a participant in a qualified retirement plan; or that may be payable to me, as owner or beneficiary, from an Individual Retirement Account.
 
19.         Make on my behalf any elections of choices available to me and give on my behalf any consents required, by reason of either my participation in or my being the beneficiary of a participant in a qualified retirement plan, and make any elections or choices available to me and give on my behalf any consents required under any Individual Retirement Account of which I am the owner or beneficiary.
 
20.         Establish for my benefit one or more Individual Retirement Accounts with any trustee or custodian.
 
21.        Transfer any of my assets to the trustee or custodian of an Individual Retirement Account established for my benefit.
 
The powers conferred upon my attorney-in-fact extend to all of my right, title and interest in property in which I may have an interest jointly with any other persons, whether in an estate by the entireties, joint tenancy, or tenancy in common.
 
It is my intention that this power of attorney shall be exercisable in any state or jurisdiction where I may have any property or interest in property.
 
Photographic copies of this instrument shall have the same force and effect as the original.
 
I hereby confirm all acts of my attorney-in-fact pursuant to this power.
 
Any act that is done under this power between the revocation of this instrument and notice of that revocation of my attorney-in-fact shall be valid unless the person claiming the benefit of the act had notice of that revocation.
 
IN WITNESS WHEREOF, I have executed this Durable Power of Attorney and set my hand and seal this 6th day of August, 2009.
 
   
 
/s/ R. David Sudarsky
 
 
R. DAVID SUDARSKY

 

 

 
SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF:
 
/s/ Frank Tosto
   
 
Frank Tosto
   
WITNESS:
(Print Name)
   
ADDRESS:
30 Chapel Hill Rd.
   
 
New Milford, CT 06776

EX-99.2 3 barnwell-ex992_061714.htm JOINT FILING AGREEMENT barnwell-ex992_061714.htm
 
Exhibit 99.2
 
Joint Filing Agreement Pursuant to Rule 13d-1(k)(1)
 
 
 
 
In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing on behalf of each of them of a statement on Schedule 13D/A (including amendments thereto) with respect to the common stock, par value $0.50 per share, of Barnwell Industries, Inc., and that this Joint Filing Agreement be included as an Exhibit to such joint filing.
 
IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing Agreement this 19th day of June, 2014.
 

 
 
By:
/s/ Morton H. Kinzler
   
Name: Morton H. Kinzler
 
 

 
 
ESTATE OF R. DAVID SUDARSKY
     
 
By:
/s/ Morton H. Kinzler
   
Name: Morton H. Kinzler
Title:   Executor