Maryland | 47-4156046 | ||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | ||
Large Accelerated Filer | ☐ | Accelerated Filer | ☐ | ||||||
Non-Accelerated Filer | ☒ | Smaller Reporting Company | ☒ | ||||||
Emerging Growth Company | ☐ | ||||||||

• | Class C common stock; |
• | preferred stock; |
• | warrants; |
• | rights; and |
• | units. |
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2024, filed with the SEC on March 4, 2025; |
• | our Quarterly Report on Form 10-Q for the three months ended March 31, 2025, filed with the SEC on May 7, 2025; |
• | our Current Reports on Form 8-K, filed with the SEC on February 4, 2025, March 4, 2025 (File No. 001-40814), March 13, 2025 and April 7, 2025; |
• | the information specifically incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended December 31, 2024 from our definitive proxy statement on Schedule 14A, filed with the SEC on April 30, 2025. |
• | the description of our Class C Common Stock contained in our Registration Statement on Form 8-A, filed with the SEC on February 9, 2022, including any amendment or report filed for the purpose of updating such description, inclusive of such updates found in our Annual Report on Form 10-K for the fiscal year ended December 31, 2024; and |
• | the description of our Series A Preferred Stock contained in our Registration Statement on Form 8-A, filed with the SEC on September 14, 2021, including any amendment or report filed for the purpose of updating such description, inclusive of such updates found in our Annual Report on Form 10-K for the fiscal year ended December 31, 2024. |
• | Our listing on the NYSE does not guarantee an active and liquid market for our Class C Common Stock, and the market price and trading volume of the shares of our Class C Common Stock may fluctuate significantly. |
• | Our Class C Common Stock is subordinate to our Series A Preferred Stock and our existing and future debt, and our common stockholders’ interests could be diluted by the issuance of additional preferred stock, future offerings of debt securities, which could be senior to our common stock, or equity securities, and by other transactions. |
• | We are focused on future acquisitions of industrial manufacturing properties and have reduced the number of non-core properties in our portfolio, and therefore the prior performance of our real estate investments may not be comparable to our ongoing results. |
• | We face risks associated with cybersecurity incidents through cyber-attacks, cyber intrusions or otherwise, as well as failures of systems on which we rely and other significant disruptions of our information technology networks and related systems. |
• | We face significant competition for real estate investment opportunities, which may limit our ability to acquire suitable investments and achieve our investment objectives or pay distributions. |
• | We plan to sell our remaining non-core properties as we seek to pursue growth through our investment strategy. However, investments in real estate are illiquid, and it may not be possible to dispose of assets in a timely manner or on favorable terms, which could adversely affect our financial condition, operating results and cash flows. |
• | Disruptions in the financial markets and uncertain economic conditions could adversely affect market rental rates, commercial real estate values and our ability to secure debt financing at interest rates acceptable to us or at all, to service future debt obligations, or to pay distributions to our stockholders. |
• | Our real estate properties and related intangible assets may be subject to impairment charges. |
• | Downturns relating to certain geographic regions, industries or business sectors may have a more significant adverse impact on our assets and our ability to pay distributions than if we had a more diversified investment portfolio. |
• | We are subject to risks related to tenant concentration, and an adverse development with respect to a large tenant could materially and adversely affect us. |
• | We may change our targeted investments or investment strategy. |
• | We have incurred losses in the past and we may experience additional losses in the future. |
• | Our charter and bylaws contain provisions that may delay, defer or prevent an acquisition of our common stock or a change in control. |
• | Certain provisions in the Partnership Agreement of the Operating Partnership may delay, make more difficult, or prevent unsolicited acquisitions of us. |
• | We are subject to risks from natural disasters, such as hurricanes, tornados and flooding, and changes in weather patterns. |
• | We are subject to risks relating to litigation and regulatory liability. |
• | Inflation and rising interest rates may adversely affect our financial condition and results of operations or result in a decrease in the value of our Class C Common Stock. |
• | Each of our current properties depends upon a single-tenant for its rental income, and our financial condition and ability to make distributions may be adversely affected by the bankruptcy or insolvency of a tenant, a downturn in the business of a tenant or a tenant’s lease termination in bankruptcy, or otherwise. |
• | We have a substantial amount of indebtedness outstanding, which may expose us to the risk of default under our debt obligations. |
• | Increases in mortgage rates or changes in underwriting standards may make it difficult for us to finance or refinance properties, which could reduce the number of properties we can acquire, our cash flow from operations and the amount of cash available for distribution to our stockholders. |
• | We may be subject to adverse legislative or regulatory tax changes. |
• | the title and stated value of such preferred stock; |
• | the number of shares of such preferred stock offered, the liquidation preference per share and the offering price of such shares; |
• | the dividend rate(s), period(s) and payment date(s) or method(s) of calculation thereof applicable to such preferred stock; |
• | whether dividends shall be cumulative or non-cumulative and, if cumulative, the date from which dividends on such preferred stock shall accumulate; |
• | the procedures for any auction and remarketing, if any, for such preferred stock; |
• | the provisions for a sinking fund, if any, for such preferred stock |
• | the provisions for redemption, if applicable, of such preferred stock |
• | any listing of such preferred stock on any securities exchange |
• | the terms and conditions, if applicable, upon which shares of such preferred stock will be convertible into shares of our common stock, including the conversion price (or manner of calculation thereof) and conversion period; |
• | a discussion of material U.S. federal income tax considerations applicable to such preferred stock; |
• | any limitations on issuance of any series of preferred stock ranking senior to or on a parity with such series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; |
• | in addition to those limitations described herein, any other limitations on actual and constructive ownership and restrictions on transfer, in each case as may be appropriate to preserve our status as a REIT; and |
• | any other specific terms, preferences, rights, limitations or restrictions of such preferred stock. |
• | senior to our common stock and to all other equity securities issued by the Company, the terms of which expressly provide that such securities rank junior to the Series A Preferred Stock; |
• | on parity with all equity securities issued by the Company, the terms of which expressly provide that such securities rank on parity with the Series A Preferred Stock; and |
• | junior to all equity securities issued by the Company, the terms of which expressly provide that such securities rank senior to the Series A Preferred Stock. |
• | the quotient obtained by dividing (i) the sum of the $25.00 liquidation preference per share of Series A Preferred Stock to be converted plus an amount equal to all dividends accrued and unpaid (whether or not authorized or declared) on the Series A Preferred Stock to, but not including, the Change of Control Conversion Date (unless the Change of Control Conversion Date is after a dividend record date and prior to the corresponding dividend payment date, in which case no additional amount for the accrued and unpaid dividend payable on the payment date will be included in this sum), by (ii) the Common Stock Price (as defined in the articles supplementary designating the Series A Preferred Stock (the “Articles Supplementary”)); and |
• | 1.9194 (as adjusted as described below, the “Share Cap”). |
• | the title and issuer of such warrants; |
• | the aggregate number of such warrants; |
• | the price or prices at which such warrants will be issued; |
• | the currencies in which the price or prices of such warrants may be payable |
• | the designation, amount and terms of the securities purchasable upon exercise of such warrants; |
• | the designation and terms of the other securities with which such warrants are issued and the number of such warrants issued with each such security; |
• | the date on and after which such warrants and any related securities purchasable upon exercise of such warrants will be separately transferable; |
• | the price or prices at which and currency or currencies in which the securities purchasable upon exercise of such warrants may be purchased; |
• | the date on which the right to exercise such warrants shall commence and the date on which such right shall expire; |
• | the minimum or maximum amount of such warrants which may be exercised at any one time; |
• | information with respect to book-entry procedures, if any; |
• | a discussion of material U.S. federal income tax considerations applicable to such warrants; and |
• | any other material terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants. |
• | the date for determining the stockholders entitled to the rights distribution; |
• | the aggregate number of shares of common stock or preferred stock purchasable upon exercise of the rights and the exercise price; |
• | the designation and terms of the preferred stock purchasable upon exercise of the rights, if applicable; |
• | the aggregate number of rights being issued; |
• | the date, if any, on and after which the rights may be transferable separately; |
• | the date on which the right to exercise such rights shall commence and the date on which such right shall expire; |
• | discussion of material U.S. federal income tax considerations applicable to such rights; and |
• | any other terms of such rights, including terms, procedures and limitations relating to the distribution, exchange, listing, transferability and exercise of such rights. |
• | the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
• | the aggregate number of, and the price at which we will issue, the units; |
• | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; |
• | whether the units will be issued in fully registered or global form; |
• | the name of the unit agent; |
• | a description of the terms of any unit agreement to be entered into between us and a bank or trust company, as unit agent, governing the units; |
• | a discussion of the material U.S. federal income tax consequences applicable to such units; and |
• | whether the units will be listed on any national securities exchange. |
• | any person who beneficially owns, directly or indirectly, 10.0% or more of the voting power of the corporation’s outstanding voting stock; or |
• | an affiliate or associate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner, directly or indirectly, of 10.0% or more of the voting power of the then outstanding stock of the corporation. |
• | 80.0% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation; and |
• | two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares of stock held by the interested stockholder with whom or with whose affiliate the business combination is to be effected or held by an affiliate or associate of the interested stockholder. |
• | one-tenth or more but less than one-third; |
• | one-third or more but less than a majority; or |
• | a majority or more of all voting power. |
• | a classified board, |
• | a two-thirds vote requirement for removing a director, |
• | a requirement that the number of directors be fixed only by vote of the directors, |
• | a requirement that a vacancy on the board be filled only by the remaining directors and for the remainder of the full term of the directorship in which the vacancy occurred, and |
• | a majority requirement for the calling of a special meeting of stockholders. |
• | 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. |
• | 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 us; and |
• | a written undertaking by or on behalf of the director or officer to repay the amount paid or reimbursed by us if it is ultimately determined that the director or officer did not meet the standard of conduct. |
• | 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 that capacity; or |
• | any individual who, while a director or officer of the Company and at our request, serves or has served as a director, officer, partner, member, manager or trustee of another corporation, REIT, limited liability company, partnership, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity. |
• | acquire, purchase, own, operate, lease, manage and dispose of any real property and any other assets; |
• | authorize, issue, sell, repurchase or otherwise purchase securities; |
• | borrow or lend money; |
• | make or revoke any tax election; |
• | maintain insurance coverage in amounts and types as it determines is necessary; |
• | retain employees or other service providers; |
• | form or acquire interests in joint ventures; and |
• | merge, consolidate or combine the Operating Partnership with another entity. |
• | result in such limited partner or any other person owning, directly or indirectly, shares of our stock in excess of the ownership limit in our charter, except as provided in our charter; |
• | result in our stock being owned by fewer than 100 persons (determined without reference to any rules of attribution), except as provided in our charter; |
• | result in the general partner being “closely held” within the meaning of Section 856(h) of the Internal Revenue Code; |
• | cause the general partner to own, directly or constructively, 9.9% or more of the ownership interests in a tenant within the meaning of Section 856(d)(2)(B) of the Internal Revenue Code; |
• | cause the general partner to be treated as a “successor corporation” to Rich Uncles Real Estate Investment Trust I, an unincorporated California association, within the meaning of Section 856(g)(3) of the Internal Revenue Code; or |
• | adversely affect the ability of the general partner to continue to qualify as a REIT or subject the general partner to any additional taxes under Section 857 or Section 4981 of the Internal Revenue Code. |
• | the holders of a majority of the Class C OP Units (including those held by us) approve such transaction; |
• | as a result of such transaction, all limited partners (other than us) will receive for each Class C OP Unit an amount of cash, securities or other property equal to the product of the conversion factor and the greatest amount of cash, securities or other property paid in the transaction to a holder of one share of our Class C Common Stock, provided that if, in connection with the transaction, a purchase, tender or exchange offer shall have been made to and accepted by the holders of more than 50% of the outstanding shares of our Class C Common Stock, each holder of Class C OP Units (other than us) shall be given the option to exchange its Class C OP Units for the greatest amount of cash, securities or other property which a limited partner would have received had it (A) exercised its exchange right and (B) sold, tendered or exchanged pursuant to such offer the shares of our Class C Common Stock received upon exercise of the exchange right immediately prior to the expiration of the offer; or |
• | we are the surviving entity in the transaction and either (A) the holders of our Class C Common Stock do not receive cash, securities or other property in the transaction or (B) all limited partners (other than the Company or its subsidiaries) receive an amount of cash, securities or other property (expressed as an amount per share of Class C Common Stock) that is no less than the product of the conversion factor and the greatest amount of cash, securities or other property (expressed as an amount per share of Class C Common Stock) received in the transaction by any holder of our Class C Common Stock. |
• | any amendment affecting the operation of the conversion factor or the exchange right (except as provided in the Partnership Agreement) in a manner adverse to the limited partners; |
• | any amendment that would adversely affect the rights of the limited partners to receive the distributions payable to them hereunder, other than with respect to the issuance of additional partnership interests pursuant to the Partnership Agreement; |
• | any amendment that would alter the partnership’s allocations of the profit and loss to the limited partners, other than with respect to the issuance of additional partnership interests pursuant to the Partnership Agreement; and |
• | any amendment that would impose on the limited partners any obligation to make additional capital contributions to the partnership. |
• | the occurrence of an event of bankruptcy as to a general partner or the dissolution, death, removal or withdrawal of a general partner unless the limited partners elect to continue the business of the Operating Partnership in accordance with the terms of the Partnership Agreement; |
• | the passage of 90 days after the sale or other disposition of all or substantially all of the assets of the Operating Partnership (provided that if the Operating Partnership receives an installment obligation as consideration for such sale or other disposition, the Operating Partnership shall continue, unless sooner dissolved under the provisions of the Partnership Agreement, until such time as such note or notes are paid in full); |
• | the exchange of all limited partnership interests (other than any of such interests held by the general partner or affiliates of the general partner) for shares of our Class C Common Stock or the securities of any other entity; or |
• | the election by the general partner that the Operating Partnership should be dissolved. |
• | financial institutions; |
• | insurance companies; |
• | real estate investment trusts; |
• | regulated investment companies; |
• | dealers in securities; |
• | traders in securities that elect to use a mark-to market method of accounting for their securities holdings; |
• | partnerships, other pass-through entities, trusts and estates; |
• | persons who hold our stock on behalf of other persons as nominees; |
• | persons subject to the alternative minimum tax; |
• | persons who receive our stock through the exercise of employee stock options or otherwise as compensation; |
• | persons holding our stock as part of a “straddle,” “hedge,” “conversion transaction,” “constructive ownership transaction,” “synthetic security” or other integrated investment; |
• | Subchapter “S” corporations; and, |
• | tax-exempt organizations; and |
• | and foreign investors. |
• | a citizen or resident of the United States; |
• | a corporation (including an entity treated as corporation for U.S. federal income tax purposes) created or organized under the laws of the United States or of a political subdivision thereof (including the District of Columbia); |
• | an estate whose income is subject to U.S. federal income taxation regardless of its source; or |
• | any trust if (1) a U.S. court is able to exercise primary supervision over the administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (2) it has a valid election in place to be treated as a U.S. person. |
• | We will be taxed at regular corporate rates on any undistributed taxable income, including undistributed net capital gains. |
• | If we have net income from “prohibited transactions,” which are, in general, sales or other dispositions of inventory or property held primarily for sale to customers in the ordinary course of business, other than foreclosure property, such income will be subject to a 100% tax. See “Prohibited Transactions.” |
• | If we should fail to satisfy the 75% gross income test or the 95% gross income test, as discussed below, but nonetheless maintain our qualification as a REIT because we satisfy other requirements, we will be subject to a 100% tax on an amount based on the magnitude of the failure, as adjusted to reflect the profit margin associated with our gross income. |
• | If we elect to treat property that we acquire in connection with a foreclosure of a mortgage loan or certain leasehold terminations as “foreclosure property,” we may thereby avoid the 100% tax on gain from a resale of that property (if the sale would otherwise constitute a prohibited transaction), but the income from the sale or operation of the property may be subject to U.S. corporate income tax at the highest applicable rate. |
• | If we should violate the asset tests (other than certain de minimis violations) or other requirements applicable to REITs, as described below, and yet maintain our qualification as a REIT because there is reasonable cause for the failure and other applicable requirements are met, we may be subject to an excise tax. In that case, the amount of the excise tax will be at least $50,000 per failure and, in the case of certain asset test failures, will be determined as the amount of net income generated by the assets in question multiplied by the highest corporate tax rate if that amount exceeds $50,000 per failure. |
• | If we should fail to distribute during each calendar year at least the sum of (a) 85% of our REIT ordinary income for such year; (b) 95% of our REIT capital gain net income for such year; and (c) any undistributed taxable income from prior periods, we would be subject to a nondeductible 4% excise tax on the excess of the required distribution over the sum of (i) the amounts that we actually distributed and (ii) the amounts we retained and upon which we paid income tax at the corporate level. |
• | We may be required to pay monetary penalties to the IRS in certain circumstances, including if we fail to meet record keeping requirements intended to monitor our compliance with rules relating to the composition of a REIT’s stockholders, as described in “ – Requirements for Qualification—General.” |
• | A 100% tax may be imposed on transactions between us and a taxable REIT subsidiary (“TRS”) (as described below) that do not reflect arm’s-length terms. |
• | If we dispose of an asset acquired by us from a C corporation in a transaction in which we took the C corporation’s tax basis in the asset, we may be subject to tax at the highest regular corporate rate on the appreciation inherent in such asset as of the date of acquisition by us. |
• | We will generally be subject to tax on the portion of any excess inclusion income derived from an investment in residual interests in real estate mortgage investment conduits (“REMICs”) or “taxable mortgage pools” to the extent our shares are held in record name by specified tax-exempt organizations not subject to tax on unrelated business taxable income (“UBTI”) or non-U.S. sovereign investors. |
• | The earnings of our subsidiaries, including our TRSs (as discussed below), are subject to U.S. federal corporate income tax to the extent that such subsidiaries are subchapter C corporations. |
(1) | it is managed by one or more trustees or directors; |
(2) | its beneficial ownership is evidenced by transferable shares or by transferable certificates of beneficial interest; |
(3) | it would be taxable as a domestic corporation but for compliance with the REIT requirements; |
(4) | it is neither a financial institution nor an insurance company under the Internal Revenue Code; |
(5) | its beneficial ownership is held by 100 or more persons; |
(6) | during the last half of each taxable year, not more than 50% in value of its outstanding stock is owned (subject to certain attribution rules), directly or indirectly, by five or fewer “individuals” (as defined in the Internal Revenue Code to include specified tax-exempt entities); |
(7) | it elects to be taxed as a REIT, or has made such election for a previous taxable year, and satisfies all relevant filing and other administrative requirements that must be met to elect and maintain REIT qualification; and |
(8) | it meets other tests described below, including with respect to the nature of its income and assets. |
(a) | The sum of (i) 90% of our “REIT taxable income,” computed without regard to our net capital gains and the dividends-paid deduction and (ii) 90% of the net income (after tax) if any from foreclosure property, minus |
(b) | the sum of specified items of non-cash income. |
• | income retained by the REIT in the prior taxable year on which the REIT was subject to corporate level income tax (less the amount of tax); |
• | distributions received by the REIT from TRSs or other taxable C corporations; or |
• | income in the prior taxable year from the sales of “built-in gain” property acquired by the REIT from C corporations in carryover basis transactions (less the amount of corporate tax on such income). |
Item 14. | Other Expenses of Issuance and Distribution. |
Amount | |||
SEC registration fee | $20,834.29 | ||
FINRA filing fee | * | ||
Printing fees | * | ||
Legal fees and expenses | * | ||
Accountants’ fees and expenses | * | ||
Miscellaneous | * | ||
Total | $* | ||
* | These fees and expenses are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time. These amounts do not include expenses of preparing and printing any accompanying prospectus supplements, listing fees, trustee fees and expenses, transfer agent fees and other expenses related to offerings of particular securities from time to time. Estimated fees and expenses associated with future offerings will be provided in the applicable prospectus supplement. |
Item 15. | Indemnification of Directors and Officers. |
• | 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. |
• | 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 us; and |
• | a written undertaking by or on behalf of the director or officer to repay the amount paid or reimbursed by us if it is ultimately determined that the director or officer did not meet the standard of conduct. |
• | 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 that capacity; or |
• | any individual who, while a director or officer of the Company and at our request, serves or has served as a director, officer, partner, member, manager or trustee of another corporation, REIT, limited liability company, partnership, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity. |
Item 16. | Exhibits. |
Number | Description | ||
1.1* | Form of Underwriting Agreement | ||
Articles of Amendment and Restatement of Modiv Industrial, Inc. (incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K (File No. 000-55776) filed with the Securities and Exchange Commission on July 8, 2021) | |||
Articles of Amendment to the Articles of Amendment and Restatement of Modiv Inc. changing its name to Modiv Industrial, Inc. (incorporated by reference to Exhibit 3.4 to our Quarterly Report on Form 10-Q (File No. 001-40814) filed with the Securities and Exchange Commission on August 14, 2023) | |||
Second Amended and Restated Bylaws of Modiv Industrial, Inc., adopted on March 9, 2023 (incorporated by reference to Exhibit 3.2 to our Annual Report on Form 10-K (File No. 001-40814) filed with the Securities and Exchange Commission on March 13, 2023) | |||
Articles Supplementary designating 7.375% Series A Cumulative Redeemable Perpetual Preferred Stock, $0.001 par value per share (incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K (File No. 001-40814) filed with the Securities and Exchange Commission on September 17, 2021) | |||
Fourth Amended and Restated Limited Partnership Agreement of Modiv Operating Partnership, LP, dated February 3, 2025 (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K (File No. 001-40814) filed with the Securities and Exchange Commission on February 4, 2025) | |||
Second Amended and Restated Distribution Reinvestment Plan (incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K (File No. 001-40814) filed with the Securities and Exchange Commission on February 15, 2022) | |||
4.7* | Form of Warrant Agreement | ||
4.8* | Form of Rights Agreement | ||
4.9* | Form of Unit Agreement | ||
Opinion of Morrison & Foerster LLP regarding the legality of the securities being registered | |||
Opinion of Morrison & Foerster LLP regarding certain tax matters | |||
Consent of Grant Thornton LLP | |||
Consent of Morrison & Foerster LLP (included in Exhibit 5.1) | |||
Number | Description | ||
Consent of Morrison & Foerster LLP (included in Exhibit 8.1) | |||
Power of Attorney (included on the signature page to this Registration Statement) | |||
Filing Fee Table | |||
* | To be filed by amendment or incorporated by reference in connection with the offering of a particular class or series of securities |
** | Filed herewith |
Item 17. | Undertakings. |
(a) | The undersigned 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; |
(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 the 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% 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 the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of 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, 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 to any purchaser: |
(i) | 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 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 |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities: |
(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, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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 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 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 SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. |
MODIV INDUSTRIAL, INC. | ||||||
By: | /s/ Aaron S. Halfacre | |||||
Aaron S. Halfacre | ||||||
Chief Executive Officer, President and Director (Principal Executive Officer) | ||||||
Signature | Title | Date | ||||
/s/ Aaron S. Halfacre | Chief Executive Officer, President and Director (Principal Executive Officer) | May 30, 2025 | ||||
Aaron S. Halfacre | ||||||
/s/ Raymond J. Pacini | Executive Vice President, Chief Financial Officer, Secretary and Treasurer (Principal Financial Officer) | May 30, 2025 | ||||
Raymond J. Pacini | ||||||
/s/ Sara Grisham | Vice President and Principal Accounting Officer (Principal Accounting Officer) | May 30, 2025 | ||||
Sara Grisham | ||||||
/s/ Thomas H. Nolan | Chairman of the Board and Director | May 30, 2025 | ||||
Thomas H. Nolan | ||||||
/s/ Christopher Gingras | Director | May 30, 2025 | ||||
Christopher Gingras | ||||||
/s/ Kimberly Smith | Director | May 30, 2025 | ||||
Kimberly Smith | ||||||
/s/ Connie Tirondola | Director | May 30, 2025 | ||||
Connie Tirondola | ||||||