POWER REIT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-K/A
(Amendment No. 1)
X Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the fiscal year ended December 31, 2011
Commission File Number: 000-54560
Power REIT
(Exact name of registrant as specified in its charter)
Maryland 45-3116572
(State of organization) (I.R.S. Employer Identification No.)
301 Winding Road, Old Bethpage, NY 11804
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 750-0373
Securities Registered Pursuant to Section 12(b) of the Act:
Title of each class: Common Shares of beneficial interest, with $0.001 par
value
Name of each exchange on which registered: American Stock Exchange
Securities Registered Pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer,
as defined in Rule 405 of the Securities Act.
Yes No X
Indicate by check mark if the registrant is not required to file reports
pursuant to Section 13 or Section 15(d) of the Act
Yes No X
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that
the registrant was required to file such reports), and (2) has been
subject to such filing requirement for the past 90 days:
Yes X No
Indicate by check mark whether the registrant has submitted electronically
and posted on its corporate Web site, if any, every Interactive Data File
required to be submitted and posted pursuant to Rule 405 of Regulation S-T
(Sec. 232.405 of this chapter) during the preceding 12 months (or for such
shorter period that the registrant was required to submit and post such
files).
Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See definition of "large accelerated filer, accelerated
filer, and smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer Accelerated filer
Non-accelerated filer Smaller reporting company X
Indicate by check mark whether the registrant is a shell company (as
defined in Rule 12b-2 of the Act). Yes No X
The aggregate market value of the voting stock held by non-affiliates of
the Registrant as of June 30, 2011, the Registrant's most recently
completed second fiscal quarter, was approximately $17,931,000 based upon
the closing price on June 30, 2011. For purposes of this calculation,
shares held by persons who hold more than 5% of the outstanding shares and
shares held by executive officers and trustees have been excluded. This is
not a determination of affiliate or executive officer status for any other
purpose.
At March 1, 2012, there were 1,623,250 outstanding shares of beneficial
interest.
Notices and communications from the Securities and Exchange Commission for
the registrant may be sent to David H. Lesser, CEO and Chairman of the
Board of Trustees, Power REIT, c/o Richard Baumann, Morrison & Cohen LLP,
909 Third Avenue, New York, New York 10022.
DOCUMENTS INCORPORATED BY REFERENCE
This section titled "Documents Incorporated by Reference" is replaced in
its entirety by:
Part III of this annual report on Form 10-K incorporates by reference
Registrant's definitive proxy statement filed with the Securities and
Exchange Commission on April 30, 2012.
EXPLANATORY NOTE
This Amendment No. 1 (the "Amendment") to Registrant's Annual Report on
Form 10-K for the year ending December 31, 2011 filed on March 28, 2012
(the "Original Report") is being filed with the Securities and Exchange
Commission ("SEC") to comply with Instruction G.1 of Form 10-K and Rule
12b-23 by (1) providing risk disclosure in Items 1A and Item 7 that, in
the Original Report, was incorporated by reference to the Registrant's
prospectus filed with the SEC pursuant to Rule 424(b)(3) under the
Securities Act as of December 1, 2011 and (2) updating the "Documents
Incorporated by Reference" section of the Original Report's Cover Page.
Additionally, the Registrant has filed this Amendment to disclose the
company that provides the Registrant with business, accounting and other
general administrative services.
No changes have been made to the Original Report other than additional
disclosure contained in this Amendment and updates to the Cover Page and
Exhibit Index. Unless expressly stated, this Amendment does not reflect
events occurring after the filing of the Original Report, nor does it
modify or update in any way the disclosures contained in the Original
Report, which speak as of the date of its original filing. Accordingly,
this Amendment should be read in conjunction with the Original Report and
Registrant's other SEC filings subsequent to the filing of the Original
Report.
Unless the context requires otherwise, references to "Registrant", "we,"
"us," "our," "Trust," and the "Company" refer specifically to Power REIT.
Unless the context requires otherwise, references to "Operating
Partnership" or "umbrella partnership" refer specifically to a to-be
formed Delaware limited partnership or limited liability company that will
be controlled by Power REIT as the sole general partner.
Item 1 Business
Caravan Partners, LLC ("Caravan") provides the Registrant with business,
accounting and other general administrative services. Caravan is
affiliated with Arun Mittal, the Registrant's Vice President, Secretary
and Treasurer.
Item 1A RISK FACTORS
Registrant's response in the Original Report to Item 1A is replaced in its
entirety by the following:
An investment in the Company's common shares involves risks. Anyone who is
making an investment decision regarding the Company's securities should
carefully consider the following risk factors, together with all of the
other information included in, or incorporated by reference into, this
prospectus before making that decision. Some of these factors relate
principally to the Company's business and business plans. The risks and
uncertainties described below are not the only ones facing us. Additional
risks and uncertainties not presently known to us or that we currently
deem immaterial may also have a material adverse effect on our business
and operations. If any of the matters included in the following risks were
to occur, the Company's business, financial condition, results of
operations, cash flows or prospects could be materially adversely
affected. In such case, you may lose all or part of your investment.
Our business strategy includes growth plans. Our financial condition and
results of operations could be negatively affected if we fail to grow or
fail to manage our growth effectively.
The Company intends to pursue a growth strategy focused on infrastructure
investments that qualify as real assets. Our prospects must be considered
in light of the risks, expenses and difficulties frequently encountered by
companies in significant growth stages of development. G&A expenses,
including expenses related to tax, legal and audit have been increasing
and expected to continue to increase due to the more complex organization
of Power REIT and expenses related to growth. We cannot assure you that we
will be able to expand our market presence in our existing markets or
successfully enter new markets or that any such expansion will not
adversely affect our results of operations. Failure to manage our growth
effectively could have a material adverse effect on our business, future
prospects, financial condition or results of operations and could
adversely affect our ability to successfully implement our business
strategy or pay a dividend.
We operate in a highly competitive market for investment opportunities.
We compete with public and private funds, commercial and investment banks
and commercial financing companies to make the types of investments that
we plan to make in the U.S. infrastructure sector. Many of our competitors
are substantially larger and have considerably greater financial,
technical and marketing resources than us. For example, some competitors
may have a lower cost of funds and access to funding sources that are not
currently available to us. In addition, some of our competitors may have
higher risk tolerances or different risk assessments, allowing them to
consider a wider variety of investments and establish more relationships
than us. Furthermore, many of our competitors are not subject to the
restrictions that our REIT status imposes on us. These competitive
conditions may adversely affect our ability to make investments in the
infrastructure sector and could adversely affect our distributions to
stockholders.
Because we expect to distribute substantially all of our taxable income
from investments to our stockholders or lenders, we will continue to need
additional capital to make new investments. If additional funds are
unavailable or not available on favorable terms, our ability to make new
investments will be impaired. Issuance of additional securities will
result in dilution.
If we distribute substantially all of our distributions and interest
income from investments to our stockholders and we desire to make new
investments, our business will require a substantial amount of capital. We
may acquire additional capital from the issuance of securities senior to
our common shares, including additional borrowings or other indebtedness
or the issuance of additional securities, including limited partnership
interests. We may also acquire additional capital through the issuance of
additional equity. However, we may not be able to raise additional capital
in the future on favorable terms or at all. Unfavorable economic
conditions could increase our funding costs, limit our access to the
capital markets or result in a decision by lenders not to extend credit to
us. This may impact materially affect the Company's business and ability
to grow and may impact the market's perception of the Company and the
share price.
Additional issuance of equity securities may result in dilution to our
shareholders. Although the Company expects to deploy additional capital in
accretive transactions, such additional dilution may reduce your
percentage ownership of the Company and voting percentage.
Our investment portfolio is currently concentrated in a single asset and
in the future we may continue to have concentrated exposure to a
relatively few number of investments, industries and lessees. Furthermore,
the Company will continue to be subject to our current and future lessees'
financial condition.
The Company currently has a single investment in Pittsburgh & West
Virginia Railroad, which has been leased to Norfolk Southern Corporation,
our Railroad Lessee, under a long-term, triple-net lease. The current
economic slowdown may have a negative impact on the operations of the
Railroad Lessee due to possible downturns in its business. This negative
impact could result in the Railroad Lessee's inability to make rental
payments when due. The Railroad Lessee may seek the protection of
bankruptcy, insolvency or similar laws, which could result in the
rejection and termination of such Lessee's lease and cause a reduction in
the Company's cash flow and adversely affect our financial condition.
As the Company grows, its portfolio may be concentrated in a limited
number of investments. An inherent risk associated with this investment
concentration is that we may be adversely affected if one or more of our
investments perform poorly or if the fair value of any one investment
decreases. Financial difficulty or poor business performance on the part
of any single lessee or the default on any single lease will expose us to
a greater risk of loss than would be the case if we were "diversified"
holding numerous investments. Further, the Company intends to concentrate
is investment activities in the infrastructure sector, including energy
and transportation, which will subject us to more risks than if we were
broadly diversified across sectors. At times, the performance of the
infrastructure sector may lag the performance of other sectors or the
broader market as a whole.
Legislative, regulatory, accounting or tax changes or actions, or
significant litigation, could adversely affect us, the infrastructure
industry or the REIT industry.
The Company and its investments are and will be subject to federal, state
and local laws and regulations and are subject to judicial and
administrative decisions that affect operations, investments, accounting
treatment, tax benefits and the health of lessees that lease the Company's
properties. If these laws, regulations or decisions change, we may have to
incur significant expenses in order to comply, or we may have to restrict
our operations. In addition, if we do not comply with applicable laws,
regulations and decisions, or fail to obtain licenses that may become
necessary for the conduct of our business, we may be subject to civil
fines and criminal penalties, any of which could have a material adverse
effect upon our business, results of operations or financial condition.
Actions by regulatory agencies or significant litigation against us or by
us could require us to devote significant time and resources to defending
our business and may lead to penalties that materially affect us and our
shareholders. Proposed changes to the accounting treatment of leases by
both lessors and lessees under U.S. GAAP may adversely impact our
financial statements and our growth plans.
Changes in interest rates may negatively affect the value of our assets
and the trading price of our stock.
Our investment in certain assets will generally decline in value if long-
term interest rates increase. If interest rates were to rise from their
current historically low levels, it may affect the market perceived or
actual value of our assets and/or dividends and consequently our stock
price may decline in value.
Our quarterly results may fluctuate.
We could experience fluctuations in our quarterly operating results due to
a number of factors, including the return on our current or future
investments, including any future investments with revenue participation,
the interest rates payable on our debt investments, the default rates on
such investments, the level of our expenses, variations in and the timing
of the recognition of realized and unrealized gains or losses, the degree
to which we encounter competition in our markets and general economic
conditions. As a result of these factors, results for any period should
not be relied upon as being indicative of performance in future periods.
We may fail to remain qualified as a REIT, which would reduce the cash
available for distribution to our shareholders and may have other adverse
consequences.
Qualification as a REIT for federal income tax purposes is governed by
highly technical and complex provisions of the U.S. Internal Revenue Code
for which there are only limited judicial or administrative
interpretations, including interpretation of lease agreements with our
lessees, which may contain complex tax indemnification and non-cash
payment provisions. Our qualification as a REIT also depends on various
facts and circumstances that are not entirely within our control. In
addition, legislation, new regulations, administrative interpretations or
court decisions might change the tax laws with respect to the requirements
for qualification as a REIT or the federal income tax consequences of
qualification as a REIT.
If, with respect to any taxable year, we were to fail to maintain our
qualification as a REIT, we would not be able to deduct distributions to
our shareholders in computing our taxable income and would have to pay
federal corporate income tax (including any applicable alternative minimum
tax) on our taxable income. If we had to pay federal income tax, the
amount of money available to distribute to our shareholders would be
reduced for the year or years involved. In addition, we would be
disqualified from treatment as a REIT for the four taxable years following
the year during which qualification was lost and thus our cash available
for distribution to our shareholders would be reduced in each of those
years, unless we were entitled to relief under relevant statutory
provisions. Failure to qualify as a REIT may also subject us to the
Investment Company Act of 1940 ("1940 Act") and could result in additional
expenses or adverse consequences.
Although we currently intend to operate in a manner designed to allow us
to continue to qualify as a REIT, future economic, market, legal, tax or
other considerations might cause us to revoke or lose our REIT status,
which could have a material adverse effect on our business, future
prospects, financial condition or results of operations and could
adversely affect our ability to successfully implement our business
strategy or pay a dividend.
In order to maintain our status as a REIT, we may be forced to borrow
funds or sell assets during unfavorable market conditions.
As a REIT, we must distribute at least 90% of our annual REIT taxable
income, subject to certain adjustments, to our shareholders. To the extent
that we satisfy the REIT distribution requirement but distribute less than
100% of our taxable income, we will be subject to federal corporate income
tax on our undistributed taxable income. In addition, we will be subject
to a 4% nondeductible excise tax if the actual amount that we pay to our
shareholders in a calendar year is less than a minimum amount specified
under federal tax laws.
From time to time, we may have taxable income greater than our cash flow
available for distribution to our shareholders (for example, due to
substantial non-deductible cash outlays, such as capital expenditures or
principal payments on debt). If we did not have other funds available in
these situations, we could be required to borrow funds, sell investments
at disadvantageous prices or find alternative sources of funds to make
distributions sufficient to enable us to pay out enough of our taxable
income to satisfy the REIT distribution requirement and to avoid income
and excise taxes in a particular year. These alternatives could increase
our operating costs and diminish our available cash flow, sustainable
future cash flow or future ability to grow.
If an investment that was initially believed to be a real asset is later
deemed not to have been a real asset at the time of investment, we could
lose our status as a REIT or be precluded from investing according to our
current business plan.
The Company must meet income and assets tests to qualify as a REIT. If an
investment that was originally believed to be a real asset is later deemed
not to have been a real asset at the time of investment, our status as a
REIT may be jeopardized or we may be precluded from investing according to
our current business plan, either of which would have a material adverse
effect on our business, financial condition and results of operations. We
also may be required to dispose of investments, which could have a
material adverse effect on us and our shareholders, because even if we
were successful in finding a buyer, we may have difficulty in finding a
buyer to purchase such investments on favorable terms or in a sufficient
timeframe.
Issuance of securities with claims that are senior to those of the common
shares of Power REIT may limit or prevent us from paying dividends on our
common shares and there is no limitation on the amount of indebtedness we
may incur in the future.
Power REIT common shares are equity interests. As such, Power REIT common
shares rank junior to any indebtedness and other non-equity claims with
respect to assets available to satisfy claims on Power REIT. Power REIT
may issue senior securities, which may expose Power REIT to typical risks
associated with leverage, including increased risk of loss. If Power REIT
issues preferred securities, which will rank "senior" to Power REIT's
common shares in its capital structure, the holders of such preferred
securities may have separate voting rights and other rights, preferences
or privileges more favorable than those of Power REIT's common shares, and
the issuance of such preferred securities could have the effect of
delaying, deferring or preventing a transaction or a change of control
that might involve a premium price for security holders or otherwise be in
Power REIT's best interest.
In addition, limited partnership interests or other securities issued by
the Operating Partnership may have a senior priority on cash-flow or
liquidation proceeds generated by the Operating Partnership. To the
extent, the Operating Partnership is unable to make cash distributions to
Power REIT, Power REIT may be forced to issue additional equity or debt,
at unfavorable terms, to maintain compliance with IRS rules that require
it to distribute 90% of its taxable income to its shareholders. If Power
REIT is unable to make such distributions, it may lose its REIT status.
Unlike indebtedness, for which principal and interest customarily are
payable on specified due dates, in the case of Power REIT common shares,
dividends are payable only when, as and if declared by Power REIT's board
and depend on, among other things, Power REIT's results of operations,
financial condition, debt service requirements, distributions received
from the Operating Partnership, other cash needs and any other factors
Power REIT's board may deem relevant or as required by law. Power REIT may
incur substantial amounts of additional debt and other obligations that
will rank senior to its common shares.
Factors may cause us to lose our NYSE Amex listing.
We could lose our listing on the NYSE Amex depending on a number of
factors, including failure to qualify as a REIT, or failure to meet the
NYSE Amex ongoing listing requirements, including those relating to the
number of shareholders, the price of our common shares and the amount and
composition of our assets.
Low trading volume in our common shares may adversely affect your ability
to resell shares at prices you find attractive, or at all.
PW common shares are traded on the NYSE Amex. The average daily trading
volume for PW's common shares is less than larger institutions. During the
12 months to September 30, 2011, the average daily trading volume for PW
common shares on the NYSE Amex was approximately 3,059 shares. During the
12 months to October 31, 2011, the average daily trading volume for PW
common shares on the NYSE Amex was approximately 3,476 shares. Due to its
relatively small trading volume, sales of PW common shares, and after the
completion of the Reincorporation Merger, sales of Power REIT common
shares, may place significant downward pressure on the market price of
such common shares. Furthermore, it may be difficult for holders to sell
their shares at prices they find attractive, or at all.
The price of our common shares may fluctuate significantly and this may
make it difficult for you to sell our common shares when you want or at
prices you find attractive.
The market value of our common shares will likely continue to fluctuate in
response to a number of factors, most of which are beyond our control. The
market value of our common shares may also be affected by conditions
affecting the financial markets generally, including the recent volatility
of the trading markets. These conditions may result in: (i) fluctuations
in the market prices of stocks generally and, in turn, our common shares;
and (ii) sales of substantial amounts of our common shares in the market,
in each case to a degree that could be unrelated or disproportionate to
any changes in our operating performance. Such market fluctuations could
adversely affect the market value of our common shares. A significant
decline in our share price could result in substantial losses for
shareholders and could lead to costly and disruptive securities
litigation.
Item 7 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The last sentence of the last paragraph of Registrant's response to Item 7
in the Original Report is replaced in its entirety by the following
sentence:
See Note Regarding Forward Looking Statements and Item 1A for risk factors
related to the Company's business.
Item 15 EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
A list of all exhibits filed as a part of this report is set forth below:
Exhibit 2.1 Agreement and Plan of Merger by and among Pittsburgh & West
Virginia Railroad, Power REIT and Power REIT PA, LLC, dated
December 1, 2011, incorporated herewith by reference to such
exhibit to the Registrant's report on Form 8-K filed with the
Commission as of December 5, 2011.
Exhibit 3.1 Articles of Amendment and Restatement of Declaration of
Trust of Power REIT, filed November 30, 2011, incorporated
herewith by reference to such exhibit to the Registrant's
report on Form 8-K filed with the Commission as of December 5,
2011.
Exhibit 3.2 By-laws of Power REIT, dated October 20, 2011, incorporated
herewith by reference to the Registrant's registration
statement on Form S-4 filed with the Commission as of November
8, 2011.
Exhibit 14 Code of Business Conduct and Ethics
Exhibit 21 Subsidiaries of the Registrant
Exhibit 31.1* Sarbanes-Oxley Act ("SOX") Section 302 Certification of
David H. Lesser.
Exhibit 31.2* SOX Section 302 Certification of Arun Mittal.
Exhibit 32.1* SOX Section 906 Certification of David H. Lesser and Arun
Mittal.
Exhibit 101 The following materials from this annual report on Form
10-K , formatted in XBRL (eXtensible Business Reporting
Language): (i) Consolidated Statement of Operations, (ii)
Consolidated Balance Sheet, (iii) Consolidated Statement of
Cash Flows, (iv) Consolidated Statement of Changes in
Shareholders' Equity, and (v) Notes to the Audited Financial
Statements, tagged as blocks of text.
*Filed herewith. All other exhibits have been filed with the Original
Report filed with the SEC on March 28, 2012
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
POWER REIT
By: /s/ David H. Lesser
David H. Lesser
CEO and Chairman of the Board
Date: December 19, 2012
By: /s/ Arun Mittal
Arun Mittal
Vice President Business Development, Secretary and Treasurer
Date: December 19, 2012