ABCP 8-K
AmBase Corp (ABCP)
8-K
2024-02-28
For: 2024-02-28
View Original
Added on
April 06, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): February 28, 2024 (February 28, 2024 )
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification Number)
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(Address of principal executive offices, including zip code)
(201 ) 265-0169
(Registrant's telephone number, including area code)
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):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)).
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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None.
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with
any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 |
Entry Into a Material Definitive Agreement.
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As previously disclosed in periodic reports filed by AmBase Corporation (the “Company”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the
Company’s financial statements have expressed a qualification about the Company’s ability to continue as a going concern and the Company has been considering various alternatives to provide the necessary cash resources to continue operations and
continue the litigation related to the 111 West 57th Property. The Company has been considering and evaluating various strategic funding and financing alternatives in order to raise capital. Possible funding alternatives considered have included a
variety of sources, including but not limited to litigation funding agreements, offerings of equity or debt securities, loans, or any combination thereof with third parties, existing shareholders of the Company and/or Company management.
Equity Offering; Commencement and Summary of Terms
In order to provide the necessary cash resources to continue operations and continue the litigation related to the 111 West 57th Property, and repay amounts currently
owed, on February 28, 2024, the Company has commenced a private placement offering (the “Equity Offering”) of 44,200,460 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”). The following is a
description of the principal terms of, and the means by which interested and qualified stockholders of the Company may participate in, the Equity Offering.
The purchase price for one share of Common Stock in the Equity Offering is $0.20. The Company expects to receive gross proceeds of approximately $8.8 million in
connection with the Equity Offering before deducting offering expenses. There are no limitations on the Company’s use of such proceeds when received, although it is anticipated that a substantial part of the proceeds will be applied to repayment
of existing Company obligations.
The Shares are not being registered under the Securities Act of 1933, as amended (the “Securities
Act”), and are being offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act, and Rule 506(c) promulgated thereunder. As such, the Shares will be “restricted securities” under the Securities Act and will generally
be subject to a minimum holding period of six months under Rule 144 before the Shares may be resold. The Shares will be offered and sold only to existing stockholders of record of the Company as of February 28, 2024 (the “Record Date”).
Each qualifying stockholder will be permitted to purchase up to his, her or its pro rata share of the Shares in the Equity Offering, based on the amount of shares of Common Stock owned by such stockholder as of the Record Date, in an amount equal
to up to one hundred and eight and one-half percent (108.5%) of the number of shares of Common Stock beneficially owned by such stockholder as of the Record Date. For example, a qualifying stockholder who owned 10,000 shares as of the Record Date
would be eligible to purchase up to 10,850 Shares. Only those stockholders who qualify as accredited investors under Rule 501(a) of Regulation D of the Securities Act may purchase Shares in the Equity Offering, and each such stockholder will be
required to provide documentary evidence that he, she or it qualifies as an accredited investor. The Equity Offering commenced on or about February 28, 2024, and will remain open for a period of thirty (30) calendar days ending on March 29, 2024
(the “Subscription Deadline”).
The Shares will be offered and sold pursuant to a Subscription Agreement (the “Subscription Agreement”) to be entered into by and between the Company and each
subscribing stockholder (each, a “Purchaser” and collectively, the “Purchasers”). The Subscription Agreement provides for a disclosure package consisting solely of the Company’s current Exchange Act filings, includes a required investor
questionnaire, a required confirmation of record or beneficial ownership, and contains customary representations and warranties and agreements of the Company and the Purchasers and customary indemnification rights and obligations of the parties.
The foregoing summary of the Subscription Agreement is qualified entirely by reference the Form of Subscription Agreement that is filed as Exhibit 10.1 hereto and is incorporated herein by reference. Interested prospective Purchasers may download or reproduce a copy of the Subscription Agreement, complete it and the accompanying investor questionnaire and confirmation, and follow the instructions contained therein for
delivery of the documentation and the applicable purchase price to the Company. The Subscription Agreement will be available for download from the following link: http://amstock.mobular.net/amstock/ABCP.
In connection with the Equity Offering, the Company also entered into a standby purchase agreement (the “Standby Purchase Agreement”) with BARC Investments, LLC
(“BARC”), an affiliate of the Company owned and controlled by Company directors Alessandra F. Bianco and Richard A. Bianco, Jr. and their sibling Christina Bianco. Under the terms of the Standby Purchase Agreement:
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BARC has subscribed to purchase its pro rata share of Shares in the Equity Offering at $0.20 per Share;
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BARC has agreed to act as a standby purchaser and shall subscribe to purchase all of the Shares that are not otherwise validly subscribed for by other stockholders by the Subscription Deadline at
$0.20 per Share; and
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BARC was granted a contractual preemptive right to participate in future equity offerings by the Company to maintain its percentage ownership in the Company as measured following the completion of
the Equity Offering.
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The Standby Purchase Agreement also contains customary representations and warranties and agreements of the Company and the BARC and customary indemnification rights
and obligations of the parties, in each case substantially the same as contained in the Subscription Agreement.
The foregoing description of the Standby Purchase Agreement is qualified entirely by reference to that agreement. The form of Standby Purchase Agreement will be filed
as an exhibit to future filings by the Company under the Exchange Act.
The Equity Offering is expected to be completed promptly within five business days following the Subscription Deadline. However, there can be no assurance that the
Equity Offering will be completed within the timeframe contemplated or at all, and there can be no assurance that the Company will be able to secure any such funding and/or financing arrangements on acceptable terms or at all. Moreover, there can
be no assurance that the net proceeds of the Equity Offering, when it is completed, will be sufficient to meet all of the Company’s future funding requirements.
The terms of the Equity Offering were evaluated by a Special Committee of the Board comprised exclusively of one independent director, advised by the Company’s outside
litigation counsel and outside securities counsel. Based upon review and consideration by the Special Committee of various factors, including review of the existing litigation related to the 111 West 57th Property, the results of the prior search
for litigation funding alternatives, the Company’s need for financing, and the terms of the Equity Offering, the Special Committee made a recommendation to the full Board of Directors of the Company to approve the Equity Offering as being fair and
in the best interests of the Company and its stockholders, and the Board of Directors approved the Equity Offering on that basis on February 23, 2024.
Other Related Matters
The Company will continue to consider and explore other litigation funding agreements with third party litigation funders that it could enter into for portions of the
litigation costs for up to $5 million of funding, at market terms to be agreed upon at such times. In general litigation funding agreements are structured so that the litigation funder would receive back their initial funding amount first (i.e.
before any recovery is received by the Company), plus an additional multiple of 1.0 times to 3.5 times the amount funded (depending on various factors), plus depending on the funder, additional fees, expenses, interest and potentially an additional
percentage of the total recovery received.
The Board of Directors of the Company also anticipates that at the Company’s 2024 Annual Meeting of Stockholders (the “Annual Meeting”), anticipated to be held in June
2024, the Company’s stockholders will be asked to consider and authorize an Amendment to the Company’s Restated Certificate of Incorporation to increase the number of shares of common stock the Company is authorized to issue. The details of matters
to be voted on by stockholders will be included in the Company’s Definitive Proxy Statement for the Annual Meeting.
With respect to its disputes and litigation relating to its interest in the 111 West 57th Property, the Company is pursuing, and will continue to pursue, other options
to realize the Company’s investment value, various legal courses of action to protect its legal rights, recovery of its asset value from various sources of recovery, as well as considering other possible economic strategies, including the possible
sale of the Company’s interest in and/or rights with respect to the 111 West 57th Property; however, there can be no assurance that the Company will prevail with respect to any of its claims.
For additional information concerning the Company’s legal proceedings relating to the 111 West 57th Property, see the description of legal proceedings in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, and the Company’s quarterly report on Form 10-Q for the quarter ended September 30,
2023 (collectively, the “Prior Periodic Reports”).
The information in this Current Report on Form 8-K should be read in conjunction with the Prior Periodic Reports, including without limitation the disclosures under
the headings “Risk Factors” and “Cautionary Statement for Forward-Looking Information.”
| Item 3.02 |
Unregistered Sale of Equity Securities
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The disclosure of the Equity Offering under Item 1.01 above is incorporated herein by reference.
| Item 9.01 |
Financial Statements and Exhibits
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Exhibits
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Exhibit Number
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Exhibit Title
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Form of Subscription Agreement.
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104.1
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The Cover Page from this Current Report on Form 8-K, formatted in Inline XBRL.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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AMBASE CORPORATION
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/s/ John Ferrara
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John Ferrara
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Vice President and Chief Financial Officer and Controller
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AmBase Corporation
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| Date: |
February 28, 2024
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Exhibit 10.1
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (the “Agreement”))
made and effective as of the date AmBase Corporation, a Delaware corporation (the “Company”) executes this Agreement (the “Effective Date”), is by and between the Company and [__________________________________] (Please enter complete legal
name of Investor) (“Investor”), with reference to the facts set forth below.
WHEREAS, pursuant to a private placement of securities to existing stockholders of the Company (the “Equity Offering”), the Company proposes to offer and sell up to 44,200,460 shares (the “Shares”)
of the Company’s common stock, par value $0.01 per share (the “Common Stock”), at a purchase price of $0.20 per Share (the “Purchase Price”);
WHEREAS, the Shares are not being registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be offered and sold only to existing stockholders of record of the Company as of February 28, 2024 (the “Record Date”) pursuant to the exemption provided in Section 4(a)(2) under the Securities Act, and Rule 506(c) promulgated thereunder;
WHEREAS, only those stockholders who qualify as accredited investors under Rule 501(a) of Regulation D of the Securities Act
may purchase Shares in the Equity Offering, and each qualifying stockholder will be permitted to purchase up to his, her or its pro rata share of the Shares in the Equity Offering, based on the amount of shares of Common Stock owned by such
stockholder as of the Record Date, in an amount equal to up to one hundred and eight and one-half percent (108.5%) of the number of shares of Common Stock beneficially owned by such stockholder as of the Record Date (the “Basic Subscription Privilege”);
WHEREAS, the undersigned Investor is a stockholder of the Company as of the Record Date and desires to exercise its Basic
Subscription Privilege pursuant to the Equity Offering on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as set forth below.
| 1. |
Agreement of Purchase and Sale.
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1.1 Purchase and Sale. Company hereby agrees to sell, and Investor hereby agrees to purchase, __________1 Shares for an aggregate Purchase Price of $0.20 per Share, or
$_________________ in the aggregate (the “Subscription Amount”).
1.2Payment. Investor shall pay the Purchase Price as follows:
1.2.1 Purchase Price. At least two (2) Business Days prior to the Closing Date (as defined below), in accordance with instructions from the Company,
Investor shall deposit with the Company the full Subscription Amount.
1.3 Investor’s Deliveries. Prior to the Closing Date, Investor shall execute, acknowledge (where appropriate) and deliver to Company: (i) this Agreement, (ii) the Investor
Questionnaire in the form attached hereto as Exhibit A, (iii) documentary evidence satisfactory the Company of the types listed in Appendix
A hereto OR a Third Party Investor Qualification Certificate in the form of Appendix B attached hereto, (iv) the Confirmation of Record or Beneficial Ownership in the
form of Appendix C attached hereto and the supporting documents required thereby; and (v) such other documents as may reasonably be requested by Company.
1 [Amount may not exceed 108.5% of the number of Confirmed Shares certified as owned beneficially or of record by the Investor on
Appendix C hereto.]
1.4 Advisors. Investor has consulted with a qualified attorney or other knowledgeable professional as to the legal, tax and financial risks associated with a purchase of the
Shares.
1.5 Closing Date. It is anticipated that the transactions contemplated in this Agreement shall close on or about April 7, 2024 (the “Closing Date”) IF AND ONLY IF all funds and
instruments required pursuant to Section 1 have been delivered to the Company.
2. Distribution of Funds and Documents. Subject to the terms of Section 1.2.1 regarding the Subscription Amount, all cash, if any, received hereunder by
Company shall, until the Closing Date, be kept on deposit with other funds in Company’s general operating account(s), in any state or national bank, and may be transferred to any other such general operating account(s).
3. Default. THE SUBSCRIPTION AMOUNT WILL BE FULLY REFUNDED BY THE COMPANY (A) IF THE INVESTOR IS NOT ACCEPTED BY THE COMPANY, OR (B) IF THE COMPANY TERMINATES THE EQUITY
OFFERING AT ANY TIME PRIOR TO THE CLOSING. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT ANY OBLIGATIONS OF INVESTOR THAT SURVIVE THE CLOSING DATE OR EARLY TERMINATION OF THIS AGREEMENT AND THE COMPANY SHALL HAVE THE RIGHT TO PURSUE ANY
CAUSE OF ACTION IT MAY HAVE AGAINST INVESTOR FOR INVESTOR’S FAILURE TO PERFORM ANY OTHER COVENANT UNDER THIS AGREEMENT AFTER THE CLOSING DATE OR EARLIER TERMINATION OF THIS AGREEMENT.
4. Representations and Warranties.
4.1 Company Representations and Warranties.
4.1.1 Existence and Good Standing; Authority. The Company is a corporation validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power
and authority to carry on its business as presently conducted.
4.1.2 Authorization of Agreement; Enforceability. This Agreement has been duly and validly authorized, executed and delivered by the Company. This Agreement is valid, binding and enforceable against the
Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principals.
4.1.3 Due Authorization and Issuance of Shares. All of the shares of Common Stock to be issued pursuant to the Equity Offering and this Agreement will have been duly authorized for issuance prior to the
Closing, and, when issued and sold for the consideration set forth in this Agreement in connection with the Equity Offering, will be validly issued, fully paid and non-assessable; and none of such shares of Common Stock will have been issued in
violation of the preemptive rights of any security holders of the Company arising as a matter of law or under or pursuant to the Company’s Certificate of Incorporation, as amended, the Company’s Bylaws, as amended, or any material agreement or
instrument to which the Company is a party or by which it is bound.
4.1.4 No Conflicts. The Company is not in violation of its Certificate of Incorporation, as
amended, or Bylaws, as amended, or in default under any agreement, indenture or instrument to which the Company is a party, the effect of which violation or default could reasonably be expected to have a material adverse effect on the Company, and
the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby will not conflict with, or constitute a breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of the Company pursuant to the terms of any agreement, indenture or instrument to which the Company is a party which lien, charge or encumbrance could reasonably be expected to have a material
adverse effect on the Company, or result in a violation of the Certificate of Incorporation or Bylaws of the Company or any order, rule or regulation of any court or governmental agency having jurisdiction over the Company or any of its property;
and, except as required by the Securities Act, the Exchange Act, and applicable state securities laws, no consent, authorization or order of, or filing or registration with, any court or governmental agency is required for the execution, delivery
and performance of this Agreement.
Page 2
4.1.5 SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act,
including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits
thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the
expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and
the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent
basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present
in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
4.1.6 Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest financial statements included within the SEC Reports, (i) there has been no event, occurrence or
development that has had or that could reasonably be expected to result in (a) a material adverse effect on the legality, validity or enforceability of this Agreement, (b) a material adverse effect on the results of operations, assets, business
or condition (financial or otherwise) of the Company, or (c) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement (any of (a), (b) or (c), a “Material
Adverse Effect”), (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not
required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Securities and Exchange Commission (the “Commission”), (iii) the Company has not altered its method of accounting, (iv) the
Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued
any equity securities to any officer, director or affiliate (as such term is defined under the Securities Act), except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for
confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement and the Equity Offering, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably
expected to occur or exist with respect to the Company or its businesses, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this
representation is made or deemed made that has not been publicly disclosed.
4.1.7 Litigation. Except as disclosed in the SEC Reports, there is no material action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened in
writing against or affecting the Company or its properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”). Except as
disclosed in the SEC Reports, none of the Actions materially adversely affects or challenges the legality, validity or enforceability of any of this Agreement or the Shares. There has not been, and to the knowledge of the Company, there is not
pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company under the Exchange Act or the Securities Act.
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4.2 Commissions. The parties mutually warrant and covenant that no brokerage commissions, finder’s fees, or similar commissions or fees shall be
due or payable by the Investor on account of this transaction. Each party shall indemnify, protect, defend (with legal counsel acceptable to the other), and hold the other harmless from the claims for such commission or finder’s fees or
similar commissions or fees arising out of the actions of the indemnifying party, including, without limitation, attorneys’ fees and costs, incurred in connection therewith or to enforce this indemnity, which indemnities shall survive the
Closing Date.
4.3 Investor Representations and Warranties. Investor hereby represents and warrants to Company that the following are true and correct on the date
of this Agreement and shall be true and correct as of the Closing Date.
4.3.1
Investor acknowledges that it has received or had access to and read, and fully understands the SEC Reports. Investor acknowledges that it is basing its decision to invest in the Shares on the
disclosures contained in the SEC Reports and Investor has relied only on the information contained in said materials and has not relied upon any representations made by any other person. Investor recognizes that an investment in the Shares
involves substantial risk and Investor is fully cognizant of and understands all of the risk factors related to the purchase of the Shares, including, but not limited to, those risks set forth in the SEC Reports under the heading “RISK
FACTORS.”
4.3.2 Investor’s overall commitment to investments that are not readily marketable is not disproportionate to its individual net worth, and its investment in the Shares will not cause such overall commitment to
become excessive. Investor has adequate means of providing for its financial requirements, both current and anticipated, and has no need for liquidity in this investment. Investor can bear and is willing to accept the economic risk of losing
its entire investment in the Shares. Investor has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the investment in the Shares.
4.3.3 The documentary evidence submitted to the Company or in support of a Third Party Investor Qualification Certificate for the purpose of qualifying as an accredited investor, as applicable, including
without limitation the documentary evidence listed in Appendix A, is true, accurate and complete; if Investor is qualifying on the basis of income, then Investor has a reasonable
expectation of reaching the income level necessary to qualify as an accredited investor during the current year; if Investor is qualifying on the basis of net worth, then the documentary evidence regarding liabilities of the Investor, if any,
identifies all direct or indirect liabilities of the Investor and no other liabilities exist as of the date hereof.
4.3.4
All information that Investor has provided to the Company or in support of a Third Party Investor Qualification Certificate for the purpose of qualifying as an accredited investor, as applicable,
concerning its suitability to invest in the Shares is complete, accurate, and correct as of the date of its signature on the last page of this Agreement. Investor hereby agrees to notify Company immediately of any material change in any such
information occurring prior to the Closing Date, including any information about changes concerning its net worth and financial position.
4.3.5 Investor has had the opportunity to ask questions of, and receive answers from, Company and its officers, directors and employees concerning the Company, its business, assets and operations and the terms
and conditions of the offering of the Shares and to obtain any additional information deemed necessary to verify the accuracy of the information contained in the SEC Reports. Investor has been provided with all materials and information
requested by either Investor or others representing Investor, including any information requested to verify any information furnished Investor.
4.3.6
Investor is purchasing the Shares for Investor’s own account and for investment purposes only and has no present intention, agreement, or arrangement for the distribution, transfer, assignment,
resale, or subdivision of the Shares. Investor understands that, due to the restrictions referred to in Section 4.4.7, and the lack of any market existing or
to exist for the Shares, Investor’s investment in the Shares will be highly illiquid and may have to be held indefinitely.
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4.3.7
Investor understands that there are restrictions on the transfer, resale, assignment, or subdivision of the Shares imposed by applicable federal and state securities laws. Investor is fully aware
that the Shares has not been registered with the Securities and Exchange Commission in reliance on the exemptions specified in Rule 506(c) of Regulation D issued by the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended, which reliance is based in part upon Investor’s representations set forth herein and the documents provided by the Investor pursuant to Section 1.3 hereof. Investor understands that the Shares has not been registered under
applicable state securities laws and is being offered and sold pursuant to the exemptions specified in said laws, and unless it is registered, it may not be re-offered for sale or resold except in a transaction or as a security exempt under
those laws.
4.3.8 Investor understands that none of Company or its officers, members, managers, employees or affiliates, legal counsel, or advisors represent Investor in any way in connection with the purchase of the
Shares and the entering into any of the related agreements associated with the purchase. Investor also understands that legal counsel to Company, does not represent, and shall not be deemed under the applicable codes of professional
responsibility to have represented or to be representing, Investor.
4.3.9 THE SHARES OFFERED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATES AND IS BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. THE SHARES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE U.S. SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION, OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR
ENDORSED THE MERITS OF THE EQUITY OFFERING OR THE ACCURACY OR ADEQUACY OF THIS AGREEMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
4.3.10
Investor hereby agrees to indemnify, defend, and hold harmless Company, its officers, directors and advisors of and from any and all damages, losses, liabilities, costs, and expenses (including
reasonable attorneys’ fees and costs) that they may incur by reason of Investor’s failure to fulfill all of the terms and conditions of this Agreement or by reason of the untruth or inaccuracy of any of the representations, warranties,
covenants, or agreements contained herein or in any other documents Investor has furnished to any of the foregoing in connection with this Agreement and the transactions contemplated hereby. This indemnification includes, but is not limited
to, any damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) incurred by the Company, its officers, directors and advisors defending against any alleged violation of federal or state securities laws
which is based upon or related to any untruth or inaccuracy of any of the representations, warranties or agreements contained herein or in any other documents Investor has furnished to any of the foregoing in connection with this Agreement and
the transactions contemplated hereby.
4.3.11
Within three (3) days after receipt of a written request from Company, Investor agrees to provide such information and to execute and deliver such documents as may be reasonably necessary to comply
with any and all laws and regulations to which Company or Investor is subject.
4.3.12
Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to the offer and sale of the Shares or the transactions
contemplated by this Agreement.
4.3.13
The representations, warranties and other information set forth in the Investor Questionnaire are, and shall continue to be, true, correct and complete in all respects.
4.3.14 Investor is the beneficial or record owner of the number of shares set forth in the Confirmation of Record or Beneficial Ownership, and the documents furnished to the Company therewith are true, accurate
and complete.
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4.4 Survival of Representations and Warranties. The representations and warranties of Investor and Company set forth herein above shall survive
the Closing Date or termination of this Agreement.
5. General Provisions.
5.1 Interpretation. The use herein of (i) the neuter gender includes the masculine and the feminine, (ii) the singular number includes the plural,
whenever the context so requires and (iii) the words “I” and “me” include “we” and “us” if Investor is more than one person. Captions in this Agreement are inserted for convenience of reference only and do not define, describe, or limit the
scope or the intent of this Agreement or any of the terms hereof. All exhibits referred to herein and attached hereto are incorporated by reference. This Agreement contains the entire agreement between the parties relating to the transactions
contemplated hereby, and all prior or contemporaneous agreements, understandings, representations and statements, whether oral or written, are merged herein.
5.2 Modification. No modification, waiver, amendment, discharge, or change of this Agreement shall be valid unless the same is in writing and
signed by the party against which the enforcement thereof is or may be sought.
5.3 Cooperation. Investor and Company acknowledge that it may be necessary to execute documents other than those specifically referred to herein to
complete the acquisition of the Shares as provided herein. Investor and Company agree to cooperate with each other in good faith by executing such other documents or taking such other action as may be reasonably necessary to complete this
transaction in accordance with the parties’ intent evidenced in this Agreement.
5.4 Assignment. Neither party may assign its rights under this Agreement.
5.5 Notices. Unless otherwise specifically provided herein, all notices, demands, or other communications given hereunder shall be in writing and
shall be addressed as follows:
If to the Company:
Richard A. Bianco
President and Chief Executive Officer
12 Lincoln Blvd. Suite 202
Emerson, NJ 07630
(201) 265-0167 (ph)
With a copy (which shall not constitute notice to the Company) to:
David Warburg
Seyfarth Shaw LLP
620 Eighth Avenue, 33rd Floor
New York, NY 10018
(212) 218-4653 (ph)
If to Investor, to Investor’s address as provided to Company.
Either party may change such address by written notice to the other party. Unless otherwise specifically provided for herein, all notices,
payments, demands or other communications given hereunder shall be deemed to have been duly given and received: (i) upon personal delivery, or (ii) as of the third Business Day after mailing by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as set forth above, or (iii) the immediately succeeding Business Day after deposit with Federal Express or other similar overnight delivery system that maintains tracking and evidence of delivery.
Page 6
5.6 Periods of Time. All time periods referred to in this Agreement include all Saturdays, Sundays, and state or United States holidays, unless
Business Days are specified, provided that if the date or last date to perform any act or give any notice with respect to this Agreement falls on a Saturday, Sunday, or state or national holiday, such act or notice may be timely performed or
given on the next succeeding Business Day.
5.7 Counterparts. This Agreement may be executed in counterparts, all of which when taken together shall be deemed fully executed originals.
5.8 Indemnification. To the fullest extent permitted by law, the Investor hereby agrees to indemnify and hold harmless the Company, its affiliates,
and their respective directors, officers and authorized agents from and against any and all losses, claims, damages, expenses and liabilities relating to or arising out of any breach of any representation, warranty, covenant or undertaking made
by or on behalf of the Investor in this Agreement.
5.9 Joint and Several Liability. If any party consists of more than one person or entity, the liability of each such person or entity signing this
Agreement shall be joint and several.
5.10 Governing Law; Jurisdiction; Service of Process; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York. ANY DISPUTES ARISING FROM, OR BASED ON ANY RIGHT ARISING OUT OF OR IN ANY WAY RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MUST BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK,
COUNTY OF NEW YORK, CITY OF NEW YORK, OR, IF IT HAS OR CAN ACQUIRE JURISDICTION, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND EACH PARTY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE
APPROPRIATE APPELLATE COURTS) FOR SUCH LIMITED PURPOSE IN ANY SUCH PROCEEDING AND WAIVES ANY OBJECTION TO VENUE LAID THEREIN FOR SUCH LIMITED PURPOSE. PROCESS IN ANY PROCEEDING REFERRED TO IN THE PRECEDING SENTENCE MAY BE SERVED ON EITHER
PARTY ANYWHERE IN THE WORLD. EACH PARTY HERETO VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY LAW, THAT A FINAL AND NONAPPEALABLE JUDGMENT AGAINST A PARTY IN ANY ACTION OR PROCEEDING
CONTEMPLATED ABOVE SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION WITHIN OR OUTSIDE THE UNITED STATES BY SUIT ON THE JUDGMENT, A CERTIFIED OR EXEMPLIFIED COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND AMOUNT OF
SUCH JUDGMENT.
5.11 Time. Time is of the essence with respect to all dates set forth in this Agreement.
5.12 Third-Party Beneficiaries. Investor and Company do not intend to benefit any party that is not a party to this Agreement and no such party
shall be deemed to be a third party beneficiary of this Agreement or any provision hereof.
5.13 Severability. If any term, covenant, condition, provision, or agreement herein contained is held to be invalid, void or otherwise unenforceable
by any court of competent jurisdiction, such fact shall in no way affect the validity or enforceability of the other portions of this Agreement.
5.14 Binding Agreement. Subject to any limitation on assignment set forth herein, all terms of this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective legal representatives, successors and assigns.
Page 7
5.15 ACCEPTANCE OR REJECTION OF INVESTOR’S OFFER. THIS AGREEMENT DOES NOT CONSTITUTE AN OFFER OF ANY KIND BY COMPANY AND SHALL NOT BIND COMPANY
UNLESS DULY EXECUTED AND DELIVERED BY COMPANY. TO SUBMIT AN OFFER, INVESTOR SHALL DELIVER TO COMPANY THE DOCUMENTS CONTEMPLATED BY SECTION 1.3 OF THIS AGREEMENT. THE COMPANY MAY ACCEPT OR REJECT INVESTOR’S OFFER IN ITS SOLE AND ABSOLUTE
DISCRETION. IF THE COMPANY DOES NOT ACCEPT INVESTOR’S OFFER PRIOR TO THE SUBSCRIPTION DEADLINE, THE OFFER SHALL BE DEEMED REJECTED. IN THE EVENT THE OFFER IS REJECTED, THE SUBSCRIPTION AMOUNT SHALL BE RETURNED TO INVESTOR WITHOUT INTEREST AND
THIS AGREEMENT SHALL NOT BECOME EFFECTIVE.
[SIGNATURE PAGE FOLLOWS]
Page 8
IN WITNESS WHEREOF, this Subscription Agreement has been executed as of the Effective Date.
|
INVESTOR:
|
||||
|
[NAME OF INVESTOR]
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
ACCEPTED AND AGREED:
|
||||
|
AMBASE CORPORATION
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
Page 9
Exhibit A
Investor Questionnaire
This Investor Questionnaire relates to the undersigned’s intention to purchase Shares of the Company in the Equity Offering for
an aggregate Subscription Amount of $___________________.
In order to induce the Company to accept the Subscription Agreement, and as further consideration for such acceptance, the
undersigned hereby makes the following acknowledgments, representations and warranties, with the full knowledge that the Company will expressly rely thereon in making a decision to accept or reject the undersigned’s Subscription Agreement:
| 1. |
The undersigned’s primary state of residence (for individuals) or principal place of business (for entities) is:.
|
| . |
| 2. |
The undersigned’s date(s) of birth is(are): ____________________/____________________.
|
| 3. |
The following information is required in order that the Company may accurately determine if the undersigned prospective investor is an “Accredited Investor,” as defined in Rule 501(a) of Regulation
D under the Securities Act of 1934 and, if applicable, whether the undersigned prospective investor is a Benefit Plan Investor (defined below).
|
The undersigned represents that the undersigned meets the requirements of the initialed categories:
If a Natural Person or Grantor Trust, the
Natural Person or Grantor Trust affirms that (initial as appropriate):
_______The undersigned is has an individual net worth, or joint net worth with the undersigned’s spouse or
spousal equivalent, of more than $1,000,000, provided that for purposes of calculating such net worth: (1) the undersigned’s primary residence will not be included as an asset; (2) indebtedness that is secured by the undersigned’s primary
residence, up to the estimated fair market value of the primary residence at the time of the closing of the undersigned’s acquisition of Shares, will not be included as a liability, provided, however, that if the amount of such indebtedness
outstanding at the time of the closing of the undersigned’s acquisition of Shares exceeds the amount of indebtedness outstanding sixty days before such time, other than as a result of the acquisition of the primary residence (such as, for
example, if the undersigned takes out a home equity loan that is not used to acquire a primary residence during such sixty-day time frame), the amount of such new indebtedness will be included as a liability; and (3) indebtedness that is secured
by the undersigned’s primary residence is in excess of the estimated fair market value of the primary residence will be included as a liability.
_______The undersigned has an individual income in excess of $200,000, or joint income with the undersigned’s
spouse or spousal equivalent in excess of $300,000, in each of the two most recent years and has a reasonable expectation of reaching the same income level in the current year;
_______The undersigned holds in a current Series 7, Series 65, or Series 82 FINRA license.
If other than a Natural Person (initial as appropriate):
_______The undersigned is an organization described in Code Section 501(c)(3), or a corporation, business trust, partnership,
or limited liability company, not formed for the specific purpose of acquiring the Shares, with total assets in excess of $5,000,000.
_______The undersigned is a trust, with total assets over $5,000,000, not formed for the specific purpose of
acquiring Shares and whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of an investment in Shares.
Page 10
_______The undersigned is a broker-dealer registered under Section 15 of the Securities Exchange Act of 1934, as
amended.
_______The undersigned is an investment company registered under the Investment Company Act of 1940, as amended,
or a business development company (as defined in Section 2(a)(48) of the Investment Company Act of 1940, as amended).
_______The undersigned is a small business investment company licensed by the Small Business Administration
under Section 301(c) or (d) or the Small Business Investment Act of 1958, as amended.
_______The undersigned is a Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural
Development Act.
_______The undersigned is a private business development company (as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940, as amended).
_______The undersigned is a plan established and maintained by a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets of more than $5,000,000.
_______The undersigned is a bank as defined in Section 3(a)(2) of the Securities Act, any savings and loan association or
other institution as defined in Section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity, or any insurance company as defined in Section 2(13) of the Securities Act.
_______The undersigned is an entity (including an individual retirement account or Keogh plan) in which all of the equity
owners (or beneficiaries, in the case of an individual retirement account or Keogh plan) are Accredited Investor.
_______The undersigned is an investment adviser registered pursuant to section 203 of the Investment Advisers Act or
registered pursuant to the laws of a state or an investment adviser relying on the exemption from registering with the SEC under section 203(l) or (m) of the Investment Advisers Act.
_______The undersigned is either (A) a family office, as defined in rule 202(a)(11)(G)–1 of the Investment Advisers Act, with
assets under management in excess of $5,000,000, that is not formed for the specific purpose of acquiring Shares, and whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that
such family office is capable of evaluating the merits and risks of an investment in Shares, or (B) a family client, as defined in rule 202(a)(11)(G)–1 of the Investment Advisers Act, of a family office meeting the requirements described in the
preceding clause (A) and whose purchase is directed by such family office.
________The undersigned is an employee benefit plan within the meaning of ERISA, if the investment decision is
made by a plan fiduciary (as defined in section 3(21) of ERISA), which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000
or, if a self-directed plan, with investment decisions made solely by persons who are accredited investors.
_______The undersigned is an entity in which all of the equity owners are “accredited investors.”
_______A grantor revocable trust where each of the grantors meet the qualifications under “Natural Persons” above.
Page 11
| 4. |
Furthermore, the undersigned represents that the undersigned meets the requirements of the initialed category: (REQUIRED – PLEASE
INITIAL THE APPLICABLE CATEGORY BELOW)
|
| — |
The undersigned is purchasing the Shares with funds that constitute, directly or indirectly, the assets of a Benefit Plan Investor (defined below). The undersigned hereby represents and warrants
that its investment in the Company: (i) does not violate and is not otherwise inconsistent with the terms of any legal document constituting or governing the employee benefit plan; (ii) has been duly authorized and approved by all necessary
parties; and (iii) is in compliance with all applicable laws.
|
| — |
The undersigned is not purchasing the Shares with funds that constitute, directly or indirectly, the assets of a Benefit Plan Investor (defined below).
|
The term “Benefit Plan Investor” means a benefit plan investor
within the meaning of U.S. Department of Labor Regulation 29 C.F.R. Section 2510.3-101, which includes (i) any employee benefit plan (as defined in Section 3(3) of ERISA), whether or not such plan is subject to Title I of ERISA (which includes both
U.S. and Non-U.S. plans, plans of governmental entities as well as private employers, church plans and certain assets held in connection with nonqualified deferred compensation plans); (ii) any plan described in Code Section 4975(e)(1) (which
includes a trust described in Code Section 401(a) which forms a part of a plan, which trust or plan is exempt from tax under Code Section 501(a), a plan described in Code Section 403(a), an individual retirement account described in Code Sections
408(a) or 408A, an individual retirement annuity described in Code Section 408(b), a medical savings account described in Code Section 220(d), and an education individual retirement account described in Code Section 530); and (iii) any entity whose
underlying assets include plan assets by reason of a plan's investment in the entity (generally because 25 percent or more of a class of interests in the entity is owned by plans). Benefit Plan Investors also include that portion of any insurance
company’s general account assets that are considered “plan assets” and the assets of any insurance company separate account or bank common or collective trust in which plans invest. 100% of an Investor’s Interest whose underlying assets include
“plan assets,” such as a fund investor, shall be treated as “plan assets” by the Company for purposes of meeting an exemption under the Department of Labor regulation.
| 5. |
The undersigned acknowledges that the undersigned has consulted with a qualified attorney or other knowledgeable professional as to the tax and real estate issues associated with the purchase of
Shares.
|
| 6. |
The undersigned represents and warrants that the documentary evidence submitted to Verify Investor, LLC or a Safe Harbor Party, as applicable, for the purpose of qualifying as an Accredited
Investor, including without limitation the documentary evidence listed in Appendix A, is true, accurate and complete; if the undersigned is qualifying on the basis of income, it
has a reasonable expectation of reaching the income level necessary to qualify as an Accredited Investor during the current year; if the undersigned is qualifying on the basis of net worth, then the documentary evidence regarding
liabilities of the undersigned, if any, identifies all direct or indirect liabilities of the undersigned and no other liabilities exist as of the date hereof.
|
| 7. |
THE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE SHARES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE U.S. SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION, OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR
ENDORSED THE MERITS OF THE EQUITY OFFERING OR THE ACCURACY OR ADEQUACY OF THIS AGREEMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
|
Page 12
| 8. |
The undersigned hereby agrees to indemnify, defend and hold harmless the Company and its affiliates and all of their members, managers, shareholders, officers, employees, affiliates and advisors
from any and all damages, losses, liabilities, costs and expenses (including attorneys’ fees and costs) that they may incur by reason of the undersigned’s failure to fulfill all of the terms and conditions of the associated Subscription
Agreement or by reason of the untruth or inaccuracy of any of the representations, warranties or agreements contained herein, in the Subscription Agreement or in any other documents the undersigned has furnished to any of the foregoing in
connection with this transaction. This indemnification includes, but is not limited to, any damages, losses, liabilities, costs or expenses (including reasonable attorneys’ fees and costs) incurred by the Company, its officers, directors
and advisors defending against any alleged violation of federal or state securities laws which is based upon or related to any untruth or inaccuracy of any of the representations, warranties or agreements contained herein, in the
Subscription Agreement or in any other documents the undersigned has furnished to any of the foregoing in connection with this transaction.
|
Page 13
|
INVESTOR
REGISTRATION INFORMATION
|
Please print the exact title (registration) and address the undersigned desires on the account. In the case of a corporation, trust or other entity, the undersigned should use
the full name of such entity and include the name and title of the signatory for such entity (i.e., Trustee, President, Manager, etc.) Please also complete the appropriate EXECUTION section below for the registered entity type, e.g., Husband & Wife or Spouse & Spousal Equivalent or Limited Liability Company. Organizational documents of any investor that is an entity must be included with the
Investor Questionnaire:
|
| Registration Name: | ||
| Investor Address: | ||
| Best Contact Number | ( |
) |
| ( |
) |
||||
| Primary State of Residence: | ||
| Federal Tax ID Number/Social Security Number: | ||
| E-Mail Address: | ||
| Additional E-Mail Address: |
Page 14
|
EXECUTION
SECTION
|
Please sign this Investor Questionnaire by completing the appropriate EXECUTION section below:
*NOTE - EXECUTE ONLY ONE SECTION BASED ON OWNERSHIP TYPE
|
|
|
HUSBAND AND
WIFE OR
SPOUSE AND
SPOUSAL
EQUIVALENT
AS JOINT
TENANTS WITH
RIGHTS OF
SURVIVORSHIP
|
If the prospective Investors are HUSBAND AND WIFE OR SPOUSE AND SPOUSAL EQUIVALENT, complete the following:
|
|
| Signature of Spouse | ||
| Name of Spouse (please print or type) | ||
| Social Security Number | ||
| Signature of Spouse | ||
| Name of Spouse (please print or type) | ||
| Social Security Number | ||
| State of Residence | ||
|
INDIVIDUAL
AND/OR
JOINT
OWNER
|
If the prospective Investor is an INDIVIDUAL and/or JOINT OWNER, please complete the following:
|
| Signature of Investor | Signature of Joint Owner (if applicable) | |||
| Name (please print or type) | Name of Joint Owner (if applicable) | |||
| Social Security Number | Social Security Number of | |||
| Joint Owner (if applicable) | ||||
| State of Legal Residence |
Page 15
|
TRUST
|
If the prospective Investor is a TRUST (excluding trusts that are Benefit Plan Investors), complete the following:
The undersigned hereby represents, warrants and agrees that: (i) the undersigned trustee(s) is duly authorized by the terms of the
Company instrument (the “Trust Instrument”) for the Company (“trust”) set forth below to acquire the Shares; (ii) the
undersigned, as trustee(s), has all requisite power and authority to acquire the Shares for the Company; and (iii) the undersigned trustee(s) is authorized by the Company to execute this Investor Questionnaire and the Subscription
Agreement. The undersigned trustee(s) encloses a true copy of the Company Instrument of said trust, as amended to date, and, as necessary, the resolutions of the Trust
authorizing the purchase of the Shares.
|
|
Name of trust (please type or print)
|
||
| Signature: | Signature: | ||||
| Print Name: |
Print Name: |
||||
|
Title (check one):
|
☐ Trustee(s) | ☐ Co-Trustee(s) | ||
|
Federal Employer ID Number
|
||
| State of Formation | ||
|
LIMITELIABILITY COMPANY
|
If the prospective Investor is a LIMITED LIABILITY COMPANY, complete the following:
The undersigned hereby represents, warrants, and agrees that: (i) the undersigned is either the authorized manager or all of the members
of the limited liability company named below (the “LLC”); (ii) the undersigned has been duly authorized by the LLC to acquire the Shares and has all requisite power and authority
to acquire the Shares; and (iii) the undersigned is authorized by the LLC to execute this Investor Questionnaire and the Subscription Agreement. The undersigned encloses a
true copy of the Operating Agreement of the LLC, as amended to date, together with a current and complete list of all members and managers and, as necessary, the resolutions of the LLC authorizing the purchase of the Shares.
|
| |
|
|
| Name of LLC (please type or print) |
| Signature: | Signature: | ||||
| Print Name: | Print Name: |
| Title (check one): | Title (check one): | ||
| ☐ Member | ☐ Member | ||
| ☐ Manager | ☐ Manager ☐ Managing Member | ||
| ☐ Managing Member | |||
| Federal Employer ID Number: | State of Formation: | |||
|
PARTNERSHIP
|
If the prospective Investor is a PARTNERSHIP, complete the following:
The undersigned hereby represents, warrants, and agrees that: (i) the undersigned is a general partner of the partnership named below
(the “Partnership”); (ii) the undersigned general partner has been duly authorized by the Partnership to acquire the Shares and the general partner has all requisite power and
authority to acquire the Shares; and (iii) the undersigned general partner is authorized by the Partnership to execute this Investor Questionnaire and the Subscription Agreement. The undersigned general partner encloses a true copy of the Partnership Agreement of the Partnership, as amended to date, together with a current and complete list of all partners and, as necessary, the resolutions of the
Partnership authorizing the purchase of the Shares.
|
|
Name of Partnership (please print or type)
|
||
|
Signature:
|
|||
|
Print Name:
|
|||
|
Title:
|
|||
|
Federal Tax ID Number
|
||
|
State of Formation
|
||
|
CORPORATION
|
If the prospective Investor is a CORPORATION, complete the following:
The undersigned hereby represents, warrants and agrees that: (i) the undersigned has been duly authorized by all requisite action on the
part of the corporation listed below (the “Corporation”) to acquire the Shares; (ii) the Corporation has all requisite power and authority to acquire the Shares; and (iii) the
undersigned officer of the Corporation has authority under the Articles of Incorporation, Bylaws, and resolutions of the Board of Directors of the Corporation to execute this Investor Questionnaire and the Subscription Agreement. The undersigned officer encloses a true copy of the Articles of Incorporation, the Bylaws and, as necessary, the resolutions of the Board of Directors authorizing a purchase of
the Shares, in each case as amended to date.
|
| Name of Corporation (please type or print) | ||
| Signature: | Signature: | ||||
| Print Name: | Print Name: | ||||
| Title: | Title: | ||||
| Federal Tax ID No: | State of Formation: |
Page 16
|
BENEFIT PLAN INVESTOR
|
If the prospective Investor is a BENEFIT PLAN INVESTOR (as defined in question 3, above), complete the following:
The undersigned hereby represents, warrants and agrees that: (i) the undersigned is duly authorized by the terms of the investor’s
governing instrument trust instrument (the “Governing Instrument”) for the entity (“entity”) set forth below to acquire
the Shares; (ii) the entity has all requisite power and authority to acquire the Shares; and (iii) the undersigned has authority under the Governing Instrument to execute this Investor Questionnaire and the Subscription Agreement. The undersigned encloses a true copy of the Governing Instrument of the entity, as amended to date, and, as necessary, any resolutions authorizing the purchase of the Shares.
|
|
Name of entity (please type or print)
|
||
|
Signature:
|
|
Signature:
|
|||
|
Print Name:
|
|
Print Name:
|
|||
|
Title:
|
|
Title:
|
|
Federal Tax ID Number
|
||
|
State of Formation
|
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
Page 17
CONSENT OF SPOUSE
(For individual purchasers in community property states, which are currently Alaska, Arizona, California,
Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin)
|
I,
|
, spouse of
|
||
|
[print name]
|
[print name]
|
have read and hereby approve of the Investor Questionnaire and Subscription Agreement for AmBase Corporation (the “Subscription Agreement”), which my spouse has signed. I hereby appoint my spouse as my attorney-in-fact with respect to the exercise of any rights related to a purchase of any such Shares and
agree to be bound by the provisions of the Subscription Agreement and any other documents related to the purchase of any such Shares (collectively, the “Subscription Documents”) insofar as
I may have any rights in said Subscription Documents or any property or interest subject thereto under the community property laws of the State of ____________________________ or similar
laws relating to marital property in effect in the state of our residence as of the date of signing of the Subscription Agreement and/or the Subscription Documents.
|
Signature:
|
Date:
|
|||
|
Print Name:
|
Page 18
REQUEST FOR TAXPAYER IDENTIFICATION NUMBER AND CERTIFICATION
Page 19
Appendix A
Documentary Evidence of Accredited Investor Status
| A. |
In regard to whether an individual Investor is an Accredited Investor on the basis of income ($200,000 individual annual income or $300,000 annual income combined with one’s spouse or spousal
equivalent):
|
| 1. |
Any Internal Revenue Service form that reports the Accredited Investor’s income for the two most recent years (including, but not limited to, Form W-2, Form 1099, Schedule K-1 to Form 1065, and
Form 1040); and
|
| 2. |
Recent pay stubs or evidence of other cash distributions or payments demonstrating a likelihood of reaching the income level necessary to qualify as an Accredited Investor during the current year.
|
| B. |
In regard to whether an individual Investor is an Accredited Investor on the basis of net worth ($1 million, excluding any equity in one’s primary’ residence):
|
| 1. |
Assets: Any of the following documents dated within 90 days of the closing:
|
|
(a)
|
bank statements;
|
|
(b)
|
brokerage statements and other statements of securities holdings; and
|
| (c) |
certificates of deposit, tax assessments, and appraisal reports issued by independent third parties.
|
| 2. |
Liabilities: A consumer report issued within 90 days of the closing from at least one of Equifax, Experian or TransUnion.
|
| C. |
In regard to whether an Investor that is an entity is an Accredited Investor on the basis of total assets ($5 million in aggregate assets):
|
| 1. |
Assets: Any of the following documents dated within 90 days prior to the closing evidencing assets of not less than $5 million in the aggregate:
|
|
(a)
|
bank statements;
|
|
(b)
|
brokerage statements and other statements of securities holdings; and
|
| (c) |
certificates of deposit, tax assessments, and appraisal reports issued by independent third parties.
|
Page 20
Appendix B
Third Party Investor Qualification Certificate
The undersigned understands that this certification (the “Certification”) will be relied upon by AmBase Corporation, a Delaware Corporation (the
“Company”), in determining the status of the person identified below as an “accredited investor.” The undersigned understands that no sale of securities will be made to such person unless such person is an “accredited investor” as that term is
defined in Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”). The undersigned understands that the Company intends to rely on Rule 506(c) of the Securities Act as a safe harbor from the registration requirements
under the Securities Act.
The undersigned hereby certifies as follows:
| 1. |
[The undersigned is authorized to sign this Certificate on behalf of my firm and that] [the undersigned is]/[the undersigned’s firm is] one of the following (please check one):
|
|
☐
|
a registered broker-dealer as that term is defined under the Securities Exchange Act of 1934, as amended; or
|
|
☐
|
an SEC-registered investment adviser, registered under the Investment Advisers Act of 1940, as amended; or
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|
☐
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an attorney licensed in the United States; or
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☐
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a certified public accountant.]
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2. The undersigned
has taken all reasonable steps necessary to verify that [_________] (the “Investor”) is an “accredited investor” as that term is defined in Rule 501(a) under the Securities Act.
3. When
determining the reasonableness of the steps undertaken to verify that the person identified in paragraph (2) above is an accredited investor, the undersigned considered a number of factors, including: (i) the nature of the person and the type
of accredited investor that such person claims to be; (ii) the amount and type of information that the undersigned has about such person; and (iii) the nature of the offering, such as the manner in which such person was solicited to participate
in the offering, and the terms of the offering, such as a minimum investment amount.
4. The
undersigned’s performance of reasonable steps to verify accredited investor status included obtaining the following:
(a) In regard to whether an individual Investor is an accredited investor on the basis of income ($200,000 individual annual income or $300,000 annual income combined with
one’s spouse or spousal equivalent):
| 1. |
Any Internal Revenue Service form that reports the Investor’s income for the two most recent years (including, but not limited to, Form W-2, Form 1099, Schedule K-1 to Form 1065, and Form 1040);
and
|
| 2. |
Recent pay stubs or evidence of other cash distributions or payments demonstrating a likelihood of reaching the income level necessary to qualify as an accredited investor during the current year.
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(b) In regard to whether an individual Investor is an accredited investor on the basis of net worth ($1 million, excluding any equity in one’s primary’ residence):
| 1. |
Assets: Any of the following documents dated within 90 days prior to the closing:
|
|
(a)
|
bank statements;
|
|
(b)
|
brokerage statements and other statements of securities holdings; and
|
| (c) |
certificates of deposit, tax assessments, and appraisal reports issued by independent third parties.
|
| 2. |
Liabilities: A consumer report issued within 90 days prior to the closing from at least one of Equifax, Experian or TransUnion.
|
(c) In regard to whether an Investor that is an entity is an accredited investor on the basis of total assets ($5 million in aggregate assets):
| 3. |
Assets: Any of the following documents dated within 90 days prior to the closing evidencing assets of not less than $5 million in the aggregate:
|
|
(a)
|
bank statements;
|
|
(b)
|
brokerage statements and other statements of securities holdings; and
|
| (c) |
certificates of deposit, tax assessments, and appraisal reports issued by independent third parties.
|
5. The statements
contained in this Certification are based upon the undersigned’s familiarity with the documentation obtained and actions taken by the undersigned to verify accredited investor status.
6. The undersigned
will retain adequate records that document the steps taken to verify that the above-identified person is an accredited investor.
7. The undersigned
knows of no facts, circumstances or events that are contrary to or inconsistent with the statements contained in this Certification.
8. The undersigned
will notify the Company if anything in this Certification ceases to be true.
9. The undersigned
agrees to indemnify the Company and its affiliates and hold them harmless from any liability that they may incur as a result of the undersigned’s failure to perform reasonable steps as provided above to verify accredited investor status.
10. The
undersigned agrees to indemnify the Company and its affiliates and hold them harmless from any liability that they may incur as a result of this Certification being untrue in any respect.
11. The
undersigned confirms that copies of this Certification together with all supporting documentation have been furnished to the Company.
12. The
undersigned acknowledges that this Certification and any supporting documentation may be furnished to government agencies, offices or bodies upon their request.
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By signing this Certification, the undersigned affirms that the above statements are accurate.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Certification on the date set forth below.
| Dated: | , 2024 | ||
| [Name of Certifying Person] |
|||
|
By:
|
||
|
Name:
|
||
|
Title:
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Page 23
Appendix C
Confirmation of Record or Beneficial Ownership
This Confirmation of Record or Beneficial Ownership relates to the undersigned’s intention to purchase Shares of the Company in
the Equity Offering for an aggregate Subscription Amount of $___________________.
In order to induce the Company to accept the Subscription Agreement, and as further consideration for such acceptance, the
undersigned hereby makes the following acknowledgments, representations and warranties, with the full knowledge that the Company will expressly rely thereon in making a decision to accept or reject the undersigned’s Subscription Agreement:
| 1. |
The undersigned is the record or beneficial owner of ___________ shares of common stock of the Company as of the Record Date (the “Confirmed Shares”).
|
| 2. |
The undersigned represents, warrants and covenants that it shall remain the record or beneficial owners of the Confirmed Shares through and as of the Closing Date of the Equity Offering.
|
| 3. |
The undersigned hereby furnishes the Company with the following instruments evidencing the undersigned’s record or beneficial ownership of the Confirmed Shares as the Record Date (please check all
that apply):
|
|
☐
|
if you are the record owner of the Confirmed Shares, a stock certificate evidencing record ownership of the Confirmed Shares in the name
of the undersigned; or
|
|
☐
|
if you are the record owner of the Confirmed Shares, a letter from American Stock Transfer & Trust Company, LLC, the Company’s
registrar and transfer agent, evidencing record ownership of the Confirmed Shares in the name of the undersigned as of the Record Date; or
|
|
☐
|
if you are the beneficial owner of the Confirmed Shares, an account statement or a letter from the nominee or broker dealer in whose
name the Confirmed Shares are held of record indicating that the undersigned beneficially owned the shares as of the Record Date.
|
The statements contained in this Certification are based upon the undersigned’s familiarity with the documentation obtained and actions taken by
the undersigned to verify accredited investor status.
4. The undersigned
will notify the Company if anything in this Confirmation of Record or Beneficial Ownership ceases to be true, including without limitation if the undersigned sells, transfers or assigns any of the Confirmed Shares prior to the Closing Date.
5. The undersigned
agrees to indemnify the Company and its affiliates and hold them harmless from any liability that they may incur as a result of this of Confirmation of Record or Beneficial Ownership being untrue in any respect.
6. The undersigned
acknowledges that this Confirmation of Record or Beneficial Ownership and any supporting documentation may be furnished to government agencies, offices or bodies upon their request.
|
INVESTOR:
|
||
|
[NAME OF INVESTOR]
|
||
|
By:
|
||
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Name:
|
||
|
Title:
|
||
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