TPHS 8-K
Trinity Place Holdings Inc. (TPHS)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form
CURRENT REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Securities registered or to be registered pursuant to Section 12(b) of the Act: None
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:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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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.
Stock Purchase Agreement
On February 5, 2025 (the “SPA Effective Date”), Trinity Place Holdings Inc. (the “Company”) entered into a Stock Purchase Agreement (the “Stock Purchase Agreement”) with TPHS Lender LLC (the “Seller”) and Steel IP Investments, LLC (the “Purchaser”), an affiliate of Steel Partners Holdings L.P. (“Steel Partners”), pursuant to which the Purchaser has agreed to purchase from Seller, and the Seller has agreed to sell to Purchaser, 25,862,245 shares of common stock (the “Common Stock”), par value $0.01 per share of the Company (such shares are referred to collectively herein as the “Shares”) in accordance with the terms and conditions of the Stock Purchase Agreement. The aggregate consideration payable to the Seller is $2,586,200 for the Shares and certain agreements pursuant to the Stock Purchase Agreement.
At the closing of the transactions contemplated by the Stock Purchase Agreement (the “Closing”), the Company, the Seller and the Purchaser will enter into certain ancillary agreements referenced below. The transactions contemplated by the Stock Purchase Agreement are herein referred to as the “Transactions.” The Company entered into the Stock Purchase Agreement, and will enter into the other Transactions, with a view toward, among other things, achieving significant operational synergies, including through the use of Steel Partners’ corporate services and participation in Steel Partners operational excellence programs.
Conditions to Closing
The obligations of the Seller and the Purchaser to consummate the Transactions are subject to the satisfaction or waiver of certain closing conditions, including:
| · | with respect to the Purchaser, among other things: (a) the assumption by the Seller of the Company’s guarantee under a loan relating to the Company’s property in Paramus, New Jersey (the “New Jersey Property”) owned by TPHGreenwich Holdings LLC (the “JV Entity”), (b) the Company shall have received waivers from certain service providers of the Company with respect to legacy fees incurred by the Company (the “Waiver Condition”), (c) the Company and the Purchaser shall have entered into the Purchaser Stockholders’ Agreement described below, (d) the partial termination by the Company and the Seller of that certain stock purchase agreement, dated January 5, 2024, by and between the Company and the Seller (the “Seller SPA”), except for any provisions of the Seller SPA which would cause an impairment or termination of the Seller’s representation and warranty insurance policy obtained concurrently with the Seller SPA, and the termination and cancellation of the Seller’s right to receive penny warrants of the Company equivalent to 5% of the Company’s Common Stock and (e) the termination and forfeiture of registration rights held by certain securityholders of the Company; and |
| · | with respect to the Seller, among other things, (a) the operating agreement of the JV Entity shall be amended, to, among other things, remove any Company decision-making and/or consent rights with respect to the New Jersey Property and the JV Entity, (b) the Company shall have released the JV Entity’s obligation to pay, call capital and/or otherwise reserve for any such D&O insurance coverage (including insurance tail coverage) and the Seller’s obligation to hold back proceeds from the sale of property for any insurance policies of the Company, (c) the Company shall (i) have provided Seller with an irrevocable written right to cause the Company, at any time after the date that is 90 days following the date of the Closing (the “Closing Date”), to convey all of the Company’s 95% ownership interest in the JV Entity and its right to distributions under the operating agreement of the JV Entity, into a trust established for the benefit of the Company’s shareholders of record on a date to be determined and (ii) have entered into the AMA Termination Agreement described below and (d) the Waiver Condition is satisfied. |
Termination
The Stock Purchase Agreement may be terminated by either party if the Closing has not have occurred within 30 days; provided that the terminating party cannot terminate if the breach by such party is the principal cause.
Purchaser Stockholders’ Agreement
On the SPA Effective Date and in connection with the Transactions, the Company and the Purchasers entered into a shareholder rights agreement (the “Purchaser Stockholders’ Agreement”), which will become effective upon the Closing Date.
The Purchaser Stockholders’ Agreement contains various covenants including, among others:
| · | The Company will take all necessary corporate actions and obtain all necessary approvals so that, as of the Closing Date, the Company’s board of directors (the “Board”) consists of five (5) members, who will initially be: (i) Jack L. Howard (Chairman), (ii)Alexander C. Matina, (iii) Joseph Martin, (iv) Jeffrey S. Wald, and (v) Joanne M. Minieri. Subsequently, the Company has agreed that so long as Purchaser owns at least 20% of the Company’s outstanding capital stock, the Company will take all action reasonably necessary to cause the Board to remain at five (5) members, which shall include (A) one (1) director who shall qualify as independent and is mutually agreed upon by Purchaser and the Company and (B) two (2) directors designated solely by Purchaser. |
| · | As of the Closing Date, Matthew Messinger will act as an observer of the Board until the earlier of (i) his voluntary resignation as an observer of the Board and (ii) the Board’s determination to remove Mr. Messinger as an observer of the Board. |
| · | The Company will continue to take steps to continue to deregister the Company as a reporting company under the Securities Exchange Act of 1934, as amended, including using commercially reasonable efforts to file a Form 15 with the Securities and Exchange Commission as soon as legally permissible after the Closing Date. |
| · | So long as at least ten percent (10%) of the Company’s total issued and outstanding Common Stock continues to be traded on OTC Pink Market, the Company will use commercially reasonable best efforts to, and Purchaser agrees to provide management services to assist the Company to, prepare and publish the information as contemplated by Rule 144(c) of the Securities Act of 1933, as amended, including: (i) within 45 days following each quarter of each fiscal year and (ii) within 90 days following each fiscal year of the Company, (A) a consolidated balance sheet, (B) consolidated statements of operations and comprehensive income and of cash flows, and, as applicable, a comparison between (x) the actual amounts as of and for such period and (y) the comparable amounts for the prior corresponding period, with an explanation of any material differences between such amounts, and (C) a consolidated statement of stockholders’ equity; in each case, prepared in accordance with GAAP and, in the case of annual financial statements, audited and certified by independent public accountants of recognized standing selected by the Company. |
| · | On or prior to the Closing Date, the Company will amend its bylaws (as currently in effective as of the date hereof, the “Bylaws”), to provide for the ability of shareholders holding at least an aggregate of 15% of the Company’s outstanding Common Stock to call a special meeting of the shareholders of the Company (the “Bylaws Amendment”). Following the effectiveness of the Bylaws Amendment, the Company will not further amend the Bylaws without the prior written consent of the Purchaser, not to be unreasonably withheld, conditioned or delayed. |
AMA Termination Agreement
On the SPA Effective Date and in connection with the Transactions, the JV Entity and TPH Asset Manager LLC (a Company subsidiary) (the “Asset Manager”) entered into a Termination Agreement (the “AMA Termination Agreement”), which, among other things, provides for the termination of that certain Asset Management Agreement, dated as of February 14, 2024, between the Asset Manager and the JV Entity, on the date that is 45 days following the Closing Date, and waives the JV Entity’s remaining obligations thereunder.
The foregoing summaries of the Stock Purchase Agreement, Purchaser Stockholders’ Agreement and the AMA Termination Agreement are qualified in their entirety by the full text of the Stock Purchase Agreement, Purchaser Stockholders’ Agreement and AMA Termination Agreement, which are filed as Exhibit 10.1, 10.2 and 10.3 to this Current Report on Form 8-K, respectively, and incorporated by reference herein.
Item 1.02 Termination of a Material Definitive Agreement.
The information contained in Item 1.01 of this Current Report on Form 8-K under the heading “AMA Termination Agreement” is incorporated by reference herein and made a part hereof.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
As disclosed in Item 1.01 above, under the terms of the Purchaser Stockholders’ Agreement, as of the Closing Date, the Board will consist of five (5) members, who will initially be: (i) Jack L. Howard (Chairman), (ii) Alexander C. Matina, (iii) Joseph Martin, (iv) Jeffrey S. Wald, and (v) Joanne M. Minieri. Each of Matthew Messinger, Keith Pattiz and Dan Bartok have tendered their resignation from the Board and as a member of any committees of the Board, which resignation will become effective immediately at the Closing Date; provided that, to the extent the Closing Date does not occur within thirty days of the execution of the Stock Purchase Agreement, such resignations will be null and void in all respects. As noted in Item 1.01, under the terms of the Purchaser Stockholders’ Agreement, as of the Closing Date, Matthew Messinger will act as an observer of the Board until the earlier of (i) his voluntary resignation as an observer of the Board and (ii) the Board’s determination to remove Mr. Messinger as an observer of the Board.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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.
| TRINITY PLACE HOLDINGS INC. | |
| Date: February 5, 2025 | /s/ Steven Kahn |
| Steven Kahn | |
| Chief Financial Officer |
Exhibit 10.1
Execution Version
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of February 5, 2025 (the “Effective Date”), by and among Steel IP Investments, LLC with a business address of 590 Madison Avenue, 32nd Floor, New York, NY 10022 (together with its affiliates, the “Purchaser”), TPHS Lender LLC with a business address of 520 Madison Avenue, 30th Floor, New York, NY 10022 (the “Seller”) and, solely with respect to Sections 1.4, 1.6.3 and 5.1 hereto, Trinity Place Holdings Inc., a Delaware corporation (the “Company”).
WHEREAS, subject to the terms hereof, Seller desires to sell 25,862,245 shares of common stock (the “Common Stock”), par value $0.01 per share (such shares are referred to collectively herein as the “Shares”), of the Company, and Purchaser desires to purchase the Shares from Seller, in private transaction exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”).
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and for the other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
Section 1. SALE AND TRANSFER OF SHARES; CLOSING
1.1 Purchase and Sale of Shares. Subject to the terms and conditions of this Agreement, at the Closing (as defined herein), Seller shall sell to Purchaser, and Purchaser shall purchase from Seller, the Shares. Seller and Purchaser hereby agree that Purchaser shall pay to Seller an aggregate consideration of $2,586,200 (the “Purchase Price”), which represents $1,293,100 in consideration for the Shares and the remainder of which constitutes consideration to the Seller for the various other covenants and obligations of Seller pursuant to this Agreement.
1.2 Purchase Price Adjustment. If Seller fails to provide the FIRPTA Certificate (as defined herein) to Purchaser, Purchaser shall have the right, in its sole discretion, to withhold from the Purchase Price an amount equal to ten percent (10%) of the Purchase Price and remit such amount to the Internal Revenue Service in accordance with FIRPTA requirements.
1.3 Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place remotely via the exchange of documents and signatures on the Effective Date or at any other time and place as the parties may agree to in writing upon, among other things, the satisfaction or waiver, as applicable, of the condition precedents set forth in Section 1.5 and 1.6 of this Agreement. The date of the Closing is herein called the “Closing Date.”
1.4 Payment and Delivery. At the Closing, Seller shall deliver, or cause to be delivered, except as provided in the following sentence, to an electronic book-entry account in the name of Purchaser with the Company’s transfer agent, the Shares against payment of the Purchase Price in immediately available funds by wire transfer to the Seller’s account as instructed by Seller. The Seller, the Purchaser and the Company shall each deliver, or cause to be delivered, any forms or other documentation required by the Company’s transfer agent in order to effectuate the transfer of the Shares. If requested by Purchaser prior to the Closing (but only to the extent existing), Seller shall deliver, or cause to be delivered, physical certificates evidencing such Shares registered in the name of Purchaser promptly after the Closing.
1.5 Conditions Precedent to Purchaser’s Obligations. The obligations of Purchaser under this Agreement to Seller are subject to the satisfaction, at or before the Closing, of the following conditions, provided that Purchaser may waive any or all of these conditions in whole or in part without prior notice:
1.5.1 The assumption by the Seller, or one or more entities designated by the Seller, of the Webster Loan Guarantee relating to the property in Paramus, New Jersey (the “New Jersey Property”) owned by TPHGreenwich Holdings LLC (the “JV Entity”).
1.5.2 Each of Kramer Levin Naftalis & Frankel LLP, Houlihan Lokey, Inc. and Ackman Ziff Real Estate Group, LLC (the “Service Providers”) shall have provided to the Company full waivers regarding certain legacy accrued fees with respect to services rendered to the Company (the “Fee Waivers”), in each case, in the forms attached hereto as Exhibit A-1, Exhibit A-2, and Exhibit A-3.
1.5.3 The Company and the Purchaser shall enter into a stockholders’ agreement (the “Purchaser Stockholders’ Agreement”), in the form attached as Exhibit B hereto, establishing, among other things, the size of the Board of Directors of the Company (the “Board”) at five (5) directors as well as setting forth certain director nomination rights of the Purchaser.
1.5.4 The (i) partial termination by the Company and the Seller of that certain stock purchase agreement, dated January 5, 2024, by and between the Company and the Seller (the “Seller SPA”), except for any provisions of the Seller SPA which would cause an impairment or termination of the Seller’s representation and warranty insurance policy obtained concurrently with the Seller SPA and (ii) the termination and cancellation of the Seller’s right to receive penny warrants of the Company equivalent to 5% of the Company’s Common Stock, in each case, in the form of the partial termination of stock purchase agreement attached hereto as Exhibit C. Purchaser acknowledges that the terms set forth in Sections 2, 3, 4, 7(c), 13, and 25 of the Seller SPA and any definitions of defined terms set forth in such sections, and such additional provisions of the Seller SPA required to survive under the terms of Seller’s representations and warranties insurance policy to provide such insurance coverage to Seller shall each remain unmodified and in full force and effect, provided that such provisions shall survive solely with respect to Seller’s ability to maintain its representations and warranties insurance policy and shall in no event subject Buyer to any liability with respect to such surviving representations and warranties.
1.5.5 The termination and forfeiture by the certain securityholders of the Company listed in Annex A hereto of registration rights previously awarded to such holders by the Company, including, but not limited to the following agreements: (i) registration rights agreement, dated as of December 19, 2019, by and between the Company and the investors set forth on Schedule A thereof, (ii) registration rights agreement, dated as of February 14, 2024, by and between the Company and the investors set forth on Schedule A thereof, (iii) registration rights agreement, dated as of December 8, 2015, by and between the Company and MFP Partners, L.P. (“MFP”), (iv) registration rights agreement, dated as of December 8, 2015, by and between the Company and Third Avenue trust (on behalf of Third Avenue Real Estate Value Fund), (v) registration rights agreement, dated as of February 14, 2017, by and between the Company and the investors set forth on Schedule A thereof and (vi) registration rights agreement, dated as of October 22, 2021, by and between the Company and the investors set forth on Schedule A thereof.
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1.5.6 Seller shall deliver to Purchaser a certificate in form and substance satisfactory to Purchaser certifying that Seller is not a foreign person within the meaning of Section 1445 of the Internal Revenue Code (the “FIRPTA Certificate”).
1.5.7 Seller shall deliver to Purchaser officer certificates in the forms attached as Exhibit D-1 and Exhibit D-2 hereto.
1.5.8 All representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date as though made on and as of that date.
1.5.9 Seller shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by it on or before the Closing Date.
1.6 Conditions Precedent to Seller’s Obligations. The obligations of Seller under this Agreement to Purchaser are subject to the satisfaction in, at or before the Closing, of the following conditions, provided that Seller may waive any or all of these conditions in whole or in part without prior notice:
1.6.1 The Operating Agreement of the JV Entity shall be amended as shown in the form attached hereto as Exhibit E to, among other things, remove any Company decision-making and/or consent rights with respect to the New Jersey Property and the JV Entity.
1.6.2 The Company shall have released the JV Entity’s obligation to pay, call capital and/or otherwise reserve for any such D&O insurance coverage (including insurance tail coverage) and the Seller’s obligation to hold back proceeds from the sale of property for any insurance policies of the Company, such release to be included in the operating agreement form attached hereto as Exhibit E.
1.6.3 The Company shall have (a) provided Seller with an irrevocable written right to cause the Company, at any time after the date that is 90 days following the Closing Date, to convey all of the Company’s interests in the JV Entity into a trust (the “Trust”) established for the benefit of the Company’s shareholders of record as of the conveyance date (and not for the benefit of the Company itself) pursuant to the terms of a trust agreement and an agreement of the Company with respect thereto, in each case, to be in the form attached to this Agreement as Exhibit F; and (b) caused to be terminated on the date that is 45 days following the Closing Date that certain Asset Management Agreement, dated as of February 14, 2024, between TPH Asset Manager LLC (a Company subsidiary) and the JV Entity (the “Asset Management Agreement”) and waived the JV Entity’s remaining obligations thereunder (including, without limitation, any obligation to pay any termination fees or other amounts thereunder due as of the Closing Date pursuant to the terms of the Asset Management Agreement), with such termination in the form of the termination agreement attached hereto as Exhibit G and having been approved by those lenders to the JV Entity’s subsidiaries as shall be entitled to approve such termination.
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1.6.4 Purchaser shall deliver to Seller an officer’s certificate in the form attached as Exhibit H hereto.
1.6.5 All representations and warranties of Purchaser contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date as though made on and as of that date.
1.6.6 The condition precedent set forth in Section 1.5.3 shall have been satisfied.
1.6.7 Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by it on or before the Closing Date.
Section 2. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser that:
2.1 Title to Shares. Seller is the owner, beneficially and of record, of the Shares and has good and marketable right, title and interest in and to the Shares, free and clear of all liens, encumbrances, security agreements, claims, charges and restrictions, including, without limitation, any right of first refusal, preemptive, tag-along or other comparable obligations or restrictions. Upon payment for the Shares in accordance with this Agreement, Seller will convey the Shares to Purchaser, and Purchaser shall acquire good and marketable title to the Shares, free and clear of all liens, pledges, security interests, charges, contractual obligations, transfer restrictions, claims or encumbrances of any kind (other than any of the foregoing created by Purchaser or imposed by applicable securities laws).
2.2 Authority and Consents. Seller has the right, power, legal capacity and authority to enter into and perform Seller’s obligations under this Agreement, and no approvals or consent of any governmental or regulatory authority or other persons is necessary in connection herewith that have not yet been obtained. This Agreement constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except (a) as may be limited by applicable bankruptcy, insolvency, reorganization, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and (b) as may be limited by the effect of rules of law governing the availability of equitable remedies.
2.3 No Conflict. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not result in a violation or breach by Seller of, or constitute a default by the Seller under, any applicable law, rule or regulation, any provision of its organizational documents or any agreement, instrument, decree, judgment or order to which Seller is a party or by which Seller may be bound which would have a material adverse effect on the ability of Seller to comply with or perform any of its obligations under this Agreement. There is no action, suit, proceeding or investigation pending against Seller or, to Seller’s knowledge, currently threatened that questions the validity of this Agreement, or the right of Seller to enter into this Agreement or to consummate the transactions contemplated hereby or that would otherwise have a material adverse effect on the ability of Seller to comply with or perform any of its obligations under this Agreement.
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2.4 Sophisticated Seller. Seller (a) is a sophisticated entity familiar with transactions similar to those contemplated by this Agreement, (b) has adequate information concerning the business and financial condition of the Company to make an informed decision regarding the sale of the Shares, (c) has negotiated this Agreement on an arm’s-length basis and has had an opportunity to consult with its legal, tax and financial advisors concerning this Agreement and its subject matter and (d) has independently and without reliance upon Purchaser, and based on such information and the advice of such advisors as Seller has deemed appropriate, made its own analysis and decision to enter into this Agreement. Seller acknowledges that neither Purchaser or any of its affiliates is acting as a fiduciary or financial or investment adviser to Seller, and none of such persons has given Seller any investment advice, opinion or other information on whether the sale of the Shares is prudent.
Section 3. REPRESENTATIONS, WARRANTIES and COVENANTS OF PURCHASER
Purchaser represents and warrants to Seller that:
3.1 Authority and Consents. Purchaser has the right, power, legal capacity and authority to enter into and perform its obligations under this Agreement, and no approvals or consent of any governmental or regulatory authority or other persons is necessary in connection herewith. This Agreement constitutes the legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except (a) as may be limited by applicable bankruptcy, insolvency, reorganization, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and (b) as may be limited by the effect of rules of law governing the availability of equitable remedies.
3.2 No Conflict. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not result in a violation or breach by Purchaser of, or constitute a default by Purchaser under, any applicable law, rule or regulation, any provision of its organizational documents or any agreement, instrument, decree, judgment or order to which Purchaser is a party or by which Purchaser may be bound which would have a material adverse effect on the ability of Buyer to comply with or perform any of its obligations under this Agreement. There is no action, suit, proceeding or investigation pending against Purchaser or, to Purchaser’s knowledge, currently threatened that questions the validity of this Agreement, or the right of Purchaser to enter into this Agreement or to consummate the transaction contemplated hereby or that would otherwise have a material adverse effect on the ability of Purchaser to comply with or perform any of its obligations under this Agreement.
3.3 Purchase Entirely for Own Account. The Shares to be acquired by Purchaser will be acquired for investment for Purchaser’s own account and not with a view to the resale or distribution of any part thereof, and Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. By executing this Agreement, Purchaser further represents, warrants, and covenants that Purchaser does not presently have and does not intend to enter into any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person or to any third person, with respect to any of the Shares. Notwithstanding the terms of Section 6.11, this Section 3.3 shall survive the Closing for a period of three years.
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3.4 Restricted Securities. Purchaser understands that the Shares will be “restricted securities” under applicable U.S. federal and state laws (and may bear a legend to that effect) and that, pursuant to these laws, Purchaser must hold the Shares indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the holding period for the Shares and requirements relating to the Company which are outside of Purchaser’s control.
3.5 Accredited Investor; Reliance on Exemption. Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D of the Securities Act. Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of the Securities Act and any applicable state securities laws, and that Seller is relying in part upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire the Shares.
3.6 Sophisticated Purchaser. Purchaser (a) is a sophisticated entity familiar with transactions similar to those contemplated by this Agreement, (b) has adequate information concerning the business and financial condition of the Company to make an informed decision regarding the purchase of the Shares, (c) has negotiated this Agreement on an arm’s-length basis and has had an opportunity to consult with its legal, tax and financial advisors concerning this Agreement and its subject matter and (d) has independently and without reliance upon Seller, and based on such information and the advice of such advisors as Purchaser has deemed appropriate, made its own analysis and decision to enter into this Agreement. Purchaser acknowledges that neither Seller nor any of its affiliates is acting as a fiduciary or financial or investment adviser to Purchaser, and none of such persons has given Purchaser any investment advice, opinion or other information on whether the purchase of the Shares is prudent. Purchaser further acknowledges and agrees that (i) Seller currently may have, and later may come into possession of, material non-public information with respect to the Company that is not known to Seller and that may be material to a decision to sell the Shares (“Excluded Information”), (ii) Purchaser has determined to acquire the Shares notwithstanding that such Excluded Information may exist and may not have been disclosed by the Company or the Seller to the Purchaser, (iii) the price for the Shares may significantly appreciate or depreciate over time and by agreeing to sell the Shares to Purchaser pursuant to this Agreement, Seller is giving up the opportunity to sell the Shares at a higher price in the future and (iv) Seller shall have no liability to Purchaser, and Purchaser to the fullest extent of the law waives and releases any claims, whether known or unknown, that it might have against Seller (or its affiliates or agents), whether under applicable securities laws or otherwise, with respect to the nondisclosure of the Excluded Information in connection with the sale of the Shares and the transactions contemplated by this Agreement. The Purchaser is fully aware of (i) the lack of liquidity of the Shares and the restrictions on transferability of the Shares and (ii) the speculative nature of the Shares. In addition, the Purchaser acknowledges that it has consulted with its own tax advisors regarding the potential tax consequences of acquiring the Shares.
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3.7 Lock-Up. Purchaser hereby agrees that it shall not purchase any additional equity of the Company, including, without limitation, shares of Common Stock or any preferred stock, until the date that is 90 days following the Closing Date.
Section 4. FURTHER ASSURANCES OF SELLER AND PURCHASER
4.1 Each of the parties hereto shall execute and deliver any and all such other instruments, documents and agreements and take all such actions as either party may reasonably request from time to time in order to effectuate the purposes of this Agreement.
Section 5. Certain Covenants
5.1 The Company hereby agrees to use commercially reasonable best efforts to assist the Seller in connection with (a) any New York State and/or New York City real property transfer taxes (or similar charges) (collectively, “Transfer Taxes”) and the filing of any returns in respect of any Transfer Taxes that the Seller determines may be necessary in respect of the creation or operation of the Trust or other transactions contemplated by this Agreement (which Transfer Tax returns, if any, shall, consistent with Section 1.6.3, take the position that no Transfer Taxes are due upon such creation or operation, or other transactions contemplated by this Agreement), (b) any inquiry, audit, investigation, challenge, or assessment by New York State or New York City of any Transfer Tax returns or Transfer Taxes alleged to be due in respect of the creation or operation of the Trust or other transactions contemplated by this Agreement, or (c) any protest, contest, litigation, or other challenge or proceeding by the Seller contesting any Transfer Taxes assessed or asserted to be due in respect of the creation or operation of the Trust or other transactions contemplated by this Agreement. Such cooperation shall include the retention and the provisions of records and information that are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a convenient basis to provide additional information and explanation of any material provided hereunder. Seller shall pay reasonable costs of the Company incurred with the foregoing, if any.
Section 6. MISCELLANEOUS
6.1 Termination of Agreement.
6.1.1 Notwithstanding anything else to the contrary contained herein, if by thirty (30) days following the Effective Date (the “Outside Date”), the conditions set forth in Section 1.5 of this Agreement have not yet been satisfied (or otherwise waived by the Purchaser) or (ii) the Closing has not otherwise occurred due to no fault of the Purchaser, this Agreement may be terminated by the Purchaser by written notice of such termination to the Seller.
6.1.2 Notwithstanding anything else to the contrary contained herein, if by the Outside Date, the conditions set forth in Section 1.6 of this Agreement have not yet been satisfied (or otherwise waived by the Seller) or (ii) the Closing has not otherwise occurred due to no fault of the Seller, this Agreement may be terminated by the Seller by written notice of such termination to the Purchaser.
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6.1.3 To extent this Agreement is terminated pursuant to Section 6.1.1 or Section 6.1.2, neither party shall have any further obligations hereunder, other than those which are expressly stated to survive termination.
6.2 Transfer Taxes. Each of Seller and Purchaser hereby agree that any applicable Transfer Taxes incurred in connection with the consummation of the transactions contemplated by this Agreement will be paid by Seller when due, and Seller will, at their own expense, file all necessary tax returns and other documentation with respect to such taxes, fees and charges. Notwithstanding the foregoing, the parties acknowledge for the avoidance of doubt, that they have taken the position that neither the creation or operation of the Trust, nor the transactions contemplated by this Agreement, will cause to be payable any Transfer Tax.
6.3 Finder’s or Broker’s Fees. Each party agrees to indemnify and hold harmless the other parties from and against any loss, liability, damage, cost, claim or expense incurred by reason of any brokerage, commission or finder’s fee alleged to be payable because of any act, omission or statement of the indemnifying party. For the avoidance of doubt, the Seller and the Purchaser hereby agree that any fees incurred by the Company subsequent to February 14, 2024 for services rendered by Kramer Levin Naftalis & Frankel LLP shall solely be the obligation of the Company and shall not be subject to the indemnification provisions contained in this Section 6.3.
6.4 Effect of Headings. The subject headings of the sections of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.
6.5 Entire Agreement; Modification; Waiver. This Agreement constitutes the entire agreement between the parties pertaining to its subject matter, and supersedes, merges and voids all prior and contemporaneous agreements, representations and understandings of the parties with respect thereto, whether written or oral. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver unless it expressly provides such by its terms. No waiver shall be binding unless executed in writing by the party making the waiver.
6.6 Counterparts. This Agreement may be executed in any number of multiple counterparts, each of which shall be deemed to be an original (including signatures delivered via facsimile or PDF) and all of which taken together shall constitute one agreement and the same instrument shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. The parties may deliver this Agreement by facsimile or PDF and each party shall be permitted to rely on the signatures so transmitted to the same extent and effect as if they were original signatures.
6.7 Binding Effect. Except as otherwise expressly provided herein, this Agreement shall be binding on and inure to the benefit of the parties, their heirs, executors, administrators, successors and all other persons hereafter that become a party hereto. No rights or obligations hereunder may be assigned by any party without the written consent of the other party. Any attempted transfer or assignment by any party of its rights and obligations under this Agreement, without the consent of the other party, shall be null and void.
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6.8 Notices. Any notice, consent, payment, demand, or communication required or permitted to be given by any provision of this Agreement shall be in writing and shall be (a) delivered personally to the party or to an officer of the party to whom the same is directed, or (b) sent by facsimile or other electronic or digital transmission method (including e-mail), or registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Seller:
TPHS Lender LLC
c/o Davidson Kempner Capital Management LP
Attention: Adam Remo
Attention: Andrew Shore
520 Madison Avenue, 30th Floor
New York, NY 10022
Email: [email protected]
Email: [email protected]
If to Purchaser:
Steel IP Investments, LLC
c/o Steel Partners Holdings LP
Attention: Joseph Martin, Chief Legal Officer
590 Madison Avenue, 32nd Floor
New York, NY 10022
E-mail: [email protected]
If to the Company:
Trinity Place Holdings Inc.
c/o Board of Directors
340 Madison Avenue, Suite 3C
New York, NY 10173
Attn: Steven Kahn and Matthew Messinger
Email: [email protected]; [email protected]
or to such other address as such party may from time to time specify in writing to the other parties. Any such notice shall be deemed to be delivered, given and received for all purposes as of: (i) the date so delivered, if delivered personally, (ii) upon receipt, if sent by facsimile or other electronic or digital transmission method (including e-mail), or (iii) on the date of receipt or refusal indicated on the return receipt, if sent by registered or certified mail, return receipt requested, postage and charges prepaid and properly addressed.
6.9 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the conflict of law principles thereof.
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6.10 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
6.11 Survival of Representations and Warranties. The representations and warranties made by Seller and Purchaser contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing.
6.12 Expenses. Each party shall pay the expenses and costs incurred by it incidental to the preparation of this Agreement, the performance and compliance with all agreements contained in this Agreement to be performed or complied with by them and the consummation of the transactions contemplated hereby.
6.13 Specific Enforcement. Notwithstanding anything to the contrary set forth herein, it is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of this Agreement by any other party, that this Agreement shall be specifically enforceable, and that any breach or threatened breach of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining order. Further, each party waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach.
6.14 Prevailing Party to Receive Attorneys’ Fees. In the event of any litigation arising out of this Agreement, the Prevailing Party (as hereinafter defined) shall be entitled to receive from the non-Prevailing Party an amount equal to the Prevailing Party’s costs incurred in such litigation, including, without limitation, the prevailing party’s attorneys’ fees, costs and disbursements. For purposes of this Section 6.14: (a) the term “Prevailing Party” shall be deemed to be that party who obtains substantially the result sought, whether by settlement, mediation, judgment, or otherwise and (b) the term “attorneys’ fees” shall include, without limitation, the actual attorneys’ fees incurred in retaining counsel for advice, negotiations, suit, appeal, and any other legal proceeding, including mediation and arbitration. The provisions of this Section 6.14 shall survive the Closing or any earlier termination of this Agreement.
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IN WITNESS WHEREOF, the parties to this Agreement have duly executed it as of the day and year first above written.
| Seller: | ||
| TPHS LENDER LLC | ||
| BY: | Midtown Acquisitions GP LLC, its Manager | |
| By: | /s/ Joshua D. Morris | |
| Name: | Joshua D. Morris | |
| Title: | Manager | |
| PURCHASER: | ||
| STEEL IP INVESTMENTS, LLC | ||
| By: | /s/ Jack L. Howard | |
| Name: | Jack L. Howard | |
| Title: | President | |
The Company has executed this Agreement for purposes of evidencing its agreement to the terms of Sections 1.4, 1.6.3, and 5.1.
TRINITY PLACE HOLDINGS INC.
| By: | /s/ Steven Kahn | |
| Name: | Steven Kahn | |
| Title: | Chief Financial Officer |
Signature Page to Stock Purchase Agreement
Exhibit 10.2
Execution Version
SHAREHOLDER RIGHTS AGREEMENT
This Shareholder Rights Agreement (this “Agreement”), dated as of February 5, 2025, is by and between Steel IP Investments, LLC, a Delaware limited liability company (“Steel”), Trinity Place Holdings Inc., a Delaware corporation (“Company”) and, solely with respect to Section 3.1(c) hereto, the Lender, as defined below.
RECITALS
WHEREAS, pursuant to that certain stock purchase agreement, dated as of the date hereof (the “Stock Purchase Agreement”), by and between Steel and TPHS Lender LLC (the “Selling Shareholder”), Steel has agreed to purchase 25,862,245 shares (the “Shares”) of the Company’s issued and outstanding common stock, par value $0.01 per share (the “Common Stock”) then owned by the Selling Shareholder;
WHEREAS, the Company has proposed to enter into that certain senior secured promissory note, to be dated as of the Effective Date, with an affiliate of Steel, Steel Connect, LLC, a Delaware limited liability company (the “Lender”), pursuant to which the Lender will make a loan in the aggregate amount of up to Five Million Dollars ($5,000,000) to the Company (the “Senior Secured Note”); and
WHEREAS, as part of the Stock Purchase Agreement, the Senior Secured Note, and the other transactions contemplated hereby and thereby, the Parties desire to set forth certain other rights and obligations of the Parties in connection therewith.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants contained herein and benefits to be derived herefrom, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
| 1. | Definitions; Interpretation. |
1.1 Definitions. Capitalized terms used in this Agreement shall have their respective meanings set forth in Exhibit 1 (DEFINITIONS).
1.2 References. The Schedules and Exhibits shall be incorporated into and deemed part of this Agreement and all references to this Agreement shall include the Schedules and Exhibits to this Agreement. References to any laws shall mean references to such laws in changed or supplemented form or to any newly adopted laws. Use of the word “including” or the phrase “e.g.” shall mean “including, without limitation”.
1.3 Headings. The Article, Section and Exhibit headings are for reference and convenience only and shall not be considered in the interpretation of this Agreement.
2. Effective Date. This Agreement shall become effective on the date that corresponds to the Closing Date (as defined in the Stock Purchase Agreement) (the “Effective Date”).
| 3. | Covenants. Each of the Parties covenants with each other as set forth below. |
3.1 Board Matters
(a) Composition. The Company shall take all necessary corporate actions and obtain all necessary approvals so that, as of the Effective Date, the Company’s board of directors (the “Board”) consists of five (5) members, who shall initially be: (i) Jack L. Howard (Chairman), (ii)Alexander C. Matina, (iii) Joseph Martin, (iv) Jeffrey S. Wald, and (v) Joanne M. Minieri. Subsequently, the Company agrees that so long as Steel owns at least 20% of the Company’s outstanding capital stock, the Company will take all action reasonably necessary to cause the Board to remain at five (5) members, which shall include (A) one (1) director who shall qualify as independent and is mutually agreed upon by Steel and the Company and (B) two (2) directors shall be designated solely by Steel.
(b) Board Observer. As of the Effective Date, Matthew Messinger shall act as an observer of the Board until the earlier of (i) Mr. Messinger’s voluntary resignation as an observer of the Board and (ii) the Board’s determination to remove Mr. Messinger as an observer of the Board. Any compensation paid to Mr. Messinger for his services as an observer shall be determined solely by the Board. In addition, for the avoidance of doubt, Mr. Messinger shall not have any vote with respect to matters presented to the Board and shall be required to excuse himself from executive sessions of the Board or during any deliberations regarding matters that constitute a conflict of interest with respect to Mr. Messinger.
(c) D&O Insurance. The Company shall maintain coverage under a directors’ and officers’ liability insurance policy having reasonable terms, taking into account the past transactions and activities of the Company during applicable statutes of limitations periods and including with respect to directors having served prior to and through the Effective Date (“legacy directors”) (the “D&O insurance”). If the Company needs funds to procure the D&O insurance or advance expenses as provided in Article 9 of its certificate of incorporation it shall borrow such amount under the Loan, which shall be timely disbursed by the Lender and be a permitted Use of Proceeds, as such terms are defined in the Senior Secured Note. Each legacy director shall be a third party beneficiary of this Section 3.1(c).
3.2 SEC Registrant; OTC Market Trading. Consistent with the Company’s prior agreement to pursue deregistration in connection with an effort to reduce public company compliance costs, which agreement and related transactions were previously approved by the Company’s stockholders on or around February 7, 2024, the Company agrees to, as soon as legally permissible after the Effective Date, to use commercially reasonable efforts to continue to deregister the Company as an SEC reporting company (“Deregistration”), including seeking SEC effectiveness of post-effective amendments to deregister any and all shares of Common Stock registered with the SEC by the Company, including those registered on Forms S-8 and S-3 and filing a Form 15. The Parties agree to, in connection with the Deregistration, use commercially reasonable best efforts to engage with a FINRA registered broker-dealer to file, if required, a Form 211 with FINRA on behalf of the Company to initiate quotations of the Common Stock for trading in a quotation medium, as defined in Rule 15c-2(11) of the Securities Exchange Act of 1934, as amended.
3.3 Financial Reporting. So long as at least ten percent (10%) of the Company’s total issued and outstanding Common Stock continues to be traded on OTC Pink Market, the Company agrees to use commercially reasonable best efforts to, and Steel agrees to provide management services to assist the Company to, prepare and publish the information as contemplated by Rule 144(c) of the Securities Act, including: (i) within 45 days following each quarter of each fiscal year and (ii) within 90 days following each fiscal year of the Company, (A) a consolidated balance sheet, (B) consolidated statements of operations and comprehensive income and of cash flows, and, as applicable, a comparison between (x) the actual amounts as of and for such period and (y) the comparable amounts for the prior corresponding period, with an explanation of any material differences between such amounts, and (C) a consolidated statement of stockholders’ equity; in each case, prepared in accordance with GAAP and, in the case of annual financial statements, audited and certified by independent public accountants of recognized standing selected by the Company.
3.4 Amendment to Bylaws. The Company agrees to, on or prior to the Effective Date, amend its bylaws (as currently in effective as of the date hereof, the “Bylaws”), to provide for the ability of shareholders holding at least an aggregate of 15% of the Company’s outstanding Common Stock to call a special meeting of the shareholders of the Company (the “Bylaws Amendment”). Following the effectiveness of the Bylaws Amendment, the Company hereby agrees that it shall not further amend the Bylaws without the prior written consent of Steel, not to be unreasonably withheld, conditioned or delayed.
3.5 Other Covenants. Each of the Parties shall not indirectly do or cause to be done any act that, if done or caused to be done directly by either Party, would breach any covenant contained in this Agreement.
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| 4. | Miscellaneous |
4.1 Notices. All notices, consents, requests, demands and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed to have been duly given or delivered if (a) delivered personally, (b) sent by certified mail, return receipt requested, (c) delivered by electronic mail (email) if a confirmation copy is immediately mailed by the certified mail, return receipt requested or recognized courier for same day or next day delivery, or (d) delivered by recognized courier for same day or next day delivery:
to Steel:
Steel IP Investments, LLC
c/o Steel Partners Holdings L.P.
590 Madison Avenue, 32nd Floor
New York, Ny 10022
Attn: Joseph Martin
Email: [email protected]
with mandatory copies to:
Greenberg Traurig, P.A.
333 SE 2nd Avenue, Suite 4400
Miami, FL 33131
Attn: Rebecca G. DiStefano
Email: [email protected]
to Company (which shall be deemed notice to all Affiliates thereof):
Trinity Place Holdings Inc.
c/o Board of Directors
340 Madison Avenue, Suite 3C
New York, NY 10173
Attn: Steven Kahn and Matthew Messinger
Email: [email protected]; [email protected]
with mandatory copies to:
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, New York 10033
Attn: John Bessonette
Email: [email protected]
or at such other address as the Parties hereto shall have last designated by notice to the other Parties. Any item delivered personally, by email or by recognized courier for same day or next day delivery shall be deemed delivered on the date of delivery if delivered prior to 5:00 p.m., and the next following business day if delivered after 5:00 p.m. Any item sent by certified mail, return receipt requested, shall be deemed delivered five (5) Business Days from the date of mailing.
| 4.2 | Assignment, Binding Effect. |
(a) The Parties may not sell, transfer, convey, or assign this Agreement (including to an Affiliate), whether directly or indirectly, without the prior written consent of the other party, which may be granted or denied in its sole discretion. Notwithstanding any consent provided under this Section 4.2, the Parties shall remain liable to the other party for any breach hereof.
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(b) Steel may assign this Agreement, in whole or in part, without the other Parties’ prior written consent, to (i) any Affiliates, or (ii) any successor in interest whether as a result of a merger, consolidation, sale of all or substantially all of Steel’s assets, change in the equity ownership of Steel or in any similar transaction.
(c) Any attempt to assign this Agreement other than as set forth in this Section 4.2 shall be invalid. This Agreement shall be binding on the Parties and their respective successors and permitted assigns.
4.3 Counterparts. This Agreement may be executed in any number of counterparts, by (i) mail, personal delivery or other courier or physical delivery of an executed original or copy bearing the signature of a properly authorized representative of the executing party, (ii) email transmission of a file in “.pdf” or similar format bearing the signature of a properly authorized representative of the executing party, or (iii) except where prohibited by state or federal law, electronic means via cryptographic, XML-based or other properly authenticated digital or electronic signature of an authorized representative of the executing party. Upon delivery, each signature properly provided hereunder shall be deemed to have the same binding effect as if the original signature had been delivered to the other parties hereto.
4.4 Consents, Approvals and Requests. Except as specifically set forth in this Agreement, all consents and approvals to be given by either Party under this Agreement shall not be unreasonably withheld or delayed, and each Party shall make only reasonable requests under this Agreement.
4.5 Severability. If a court of competent jurisdiction hereof declares any provision invalid, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall continue in full force and effect. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
4.6 Waiver. Unless expressly agreed, no variation or waiver of any provision or condition of this Agreement shall constitute a general variation or waiver of any provision or condition of this Agreement, nor shall it affect any rights, obligations or liabilities under or pursuant to this Agreement which have already accrued up to the date of variation or waiver, and the rights and obligations of the Parties under or pursuant to this Agreement shall remain in full force and effect, except and only to the extent that they are so varied or waived.
4.7 Remedies Cumulative. No right or remedy herein conferred upon or reserved to either Party is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy under this Agreement, or under applicable laws, whether now or hereafter existing.
4.8 Entire Agreement; Amendments. This Agreement together with the Exhibits, Schedules or other addendum attached hereto constitutes the entire agreement between the Parties relating to the subject matter contained herein and supersedes all prior oral and written agreements with respect to the subject matter. This Agreement, Exhibits, Schedules or other addendum attached hereto may not be modified other than by a written instrument signed by the Parties hereto. The invalidity, illegality, or unenforceability of any provision hereof or of the application of any provision to any particular situation or circumstance shall not in any way affect, impair, invalidate, or render unenforceable this Agreement or any other provision hereof or the application of such provision to different situations or circumstances.
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4.9 Governing Law; Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. The laws of the State of New York govern the interpretation and enforcement of this Agreement and all questions concerning the construction, validity, interpretation and performance of this Agreement shall be governed thereby, without giving effect to provisions thereof regarding conflict of laws. Any proceeding arising out of or relating to this Agreement shall be instituted either in any federal or state court in New York County, New York, and each of the Parties hereby submits to the exclusive jurisdiction of such court for the purpose of any such proceeding. A final judgment in any such proceeding may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each Party irrevocably and unconditionally waives any objection to the laying of venue of any proceeding arising out of this Agreement or the transactions contemplated hereby in such courts, and hereby irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such proceeding brought in any such court has been brought in an inconvenient forum (or make any similar argument) or does not have jurisdiction over any Party. Each Party further agrees that service of any process, summons, notice or document by U.S. registered mail to such Party’s respective address set forth herein shall be effective service of process for any such proceeding. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY PROCEEDING IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER PROCEEDING IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (a) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED OR WARRANTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (b) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (c) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (d) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.9. For the purpose of this provision, the phrase “relating to” shall include (but is not limited to) the transactions contemplated hereby, and the actions of any party in the negotiation, administration, performance and enforcement hereof.
4.10 Covenant of Further Assurances. The Company covenants and agrees that, subsequent to the execution and delivery of this Agreement and, without any additional consideration, it shall execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate the purposes of this Agreement.
4.11 Negotiated Terms. The Parties agree that the terms and conditions of this Agreement are the result of negotiations between the Parties and that this Agreement shall not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement.
4.12 Attorneys’ Fees. In the event of any legal action, arbitration or other proceeding relating to the enforcement and/or a breach of this Agreement or because of an alleged dispute, breach or default in connection with any provisions of this Agreement, if a court of competent jurisdiction in a final and non-appealable judgment determines that any Party or its Representatives have breached this Agreement, then the non-prevailing Party shall be liable for and pay to the prevailing Party its reasonable attorneys’ fees and other costs incurred by the prevailing Party in connection with such legal action, arbitration or other proceeding, in addition to any other remedies to which the prevailing Party may be entitled.
4.13 Fair Dealing; Obligations. The Parties jointly and severally agree that a covenant of good faith and fair dealing applies to their obligations and commitments under this Agreement. Obligations of multiple Affiliated Parties hereunder shall be obligations of all such Parties jointly and severally.
4.14 Specific Performance. The Parties acknowledge that money damages and remedies at law are not a sufficient remedy for any breach or threatened breach of this Agreement by the Company and its Representatives and that the Company agrees that a non-breaching party and/or its Affiliates may be irreparably harmed in the case of any such breach or threatened breach. Therefore the Company and its Representatives agree that a non-breaching party and/or its Affiliates shall be entitled to specific performance and injunctive or other equitable relief without proof of actual damages or posting of a bond as a remedy for any such breach or threatened breach. Such remedies shall not be deemed to be the exclusive remedies for a breach or threatened breach by the Company and its Representatives of this Agreement but shall be in addition to all other remedies available at law or equity to such non-breaching parties. In any suit, action or claim to enforce this Agreement or for breach of this Agreement, each Party hereunder shall be entitled (for the avoidance of doubt, in addition to any remedies at law or equity) to recover its reasonable, out-of-pocket expenses, including reasonable attorney fees, should it be the prevailing party therein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed or caused duly authorized representatives of their respective companies to execute this Agreement as of the day and year first written above.
| STEEL: | Steel IP Investments, LLC, a Delaware limited liability company | |
| By: | /s/ Jack L. Howard | |
| Name: | Jack L. Howard | |
| Title: | President | |
| COMPANY: | Trinity Place HOLDINGS Inc., a Delaware corporation | |
| By: | /s/ Steven Kahn | |
| Name: | Steven Kahn | |
| Title: | Chief Financial Officer | |
[Signature Page to Shareholder Rights Agreement]
| Acknowledged and agreed to with respect to Section 3.1(c) of the foregoing Agreement: | ||
| STEEL CONNECT, LLC, a Delaware limited liability company | ||
| By: | /s/ Ryan O’Herrin | |
| Name: | Ryan O’Herrin | |
| Title: | Chief Financial Officer | |
[Signature Page to Shareholder Rights Agreement]
EXHIBIT 1
DEFINITIONS
“Affiliate” shall mean any Person which, directly or indirectly, Controls, is Controlled by, or is under common Control with another entity. The foregoing definition includes any entity that conforms to the definition as of the Effective Date hereof, as well as any entity that conforms to the definition any time after the Effective Date hereof.
“Agreement” shall have the meaning set forth in the preamble of this Agreement.
“Business Day” shall mean any day other than a Saturday, Sunday, bank or public holiday when clearing banks are open for business for the transaction of normal banking business in New York, New York.
“Board” shall have the meaning set forth in Section 3.1(a).
“Common Stock” shall have the meaning set forth in the Recitals hereof.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through record or beneficial ownership of voting securities, by contract, or otherwise.
“Deregistration” shall have the meaning set forth in Section 3.2.
“Effective Date” shall have the meaning set forth in Section 2.
“GAAP” shall mean the generally accepted accounting principles in the United States of America.
“Lender” shall have the meaning set forth in the Preamble hereof.
“Parties” shall mean Steel and the Company, collectively.
“Party” shall mean either Steel or the Company, as applicable.
“Person” shall mean an individual, a corporation, a partnership, a limited liability company, an association, a joint- stock company, a trust, any unincorporated organization, or other group, however organized (including their parents, subsidiaries, Affiliates, joint ventures, divisions, successors and assigns).
“Representatives” shall mean employees, directors, managers, agents, representatives, advisors, attorney’s, employees, and permitted subcontractors of a Party or its Affiliates.
“Selling Shareholder” shall have the meaning set forth in the Recitals hereof.
“Senior Secured Note” shall have the meaning set forth in the Recitals hereof.
“Shares” shall have the meaning set forth in the Recitals hereof.
“Steel” shall have the meaning set forth in the preamble of this Agreement.
“Stock Purchase Agreement” shall have the meaning set forth in the Recitals hereof.
Exhibit 10.3
Execution Version
TERMINATION AGREEMENT (ASSET MANAGEMENT AGREEMENT)
This TERMINATION AGREEMENT (ASSET MANAGEMENT AGREEMENT) (this “Termination”) is entered into as of February 5, 2025 (the “Effective Date”), pursuant to the Asset Management Agreement (the “Agreement”), dated as of February 14, 2024, by and between TPHGreenwich Holdings LLC, a Delaware limited liability company (the “Company”) and TPH Asset Manager LLC, a Delaware limited liability company (the “Manager”). Capitalized terms used but not defined in this Termination shall have the meanings ascribed to such terms in the Agreement.
WHEREAS, pursuant to Section 10.1(b), of the Agreement, the Agreement shall continue in force until earlier termination pursuant to the terms thereof;
WHEREAS, pursuant to Section 10.2 of the Agreement, the Company has the right, in its sole and absolute discretion, to terminate the Agreement without Cause upon delivery of a written notice of termination to the Manager;
WHEREAS, on the Effective Date, Trinity Place Holdings Inc. (“TPHS”), TPHS Lender LLC and Steel IP Investments, LLC entered into that certain Stock Purchase Agreement (“Steel Purchase Agreement”); and
WHEREAS, (a) the Company has elected to terminate the Agreement, effective on the forty-fifth (45th) day following the Closing Date (as defined in the Steel Purchase Agreement) (the “Termination Date”), and the Manager has agreed to waive any applicable notice requirements and to waive entitlement to certain amounts that may otherwise be due under the Agreement upon such termination, and (b) Manager has agreed to cooperate with the Company in connection with the Company’s transition to a newly-engaged asset manager, as set forth in this Termination.
NOW, THEREFORE, in consideration of the premises and the mutual agreements, provisions and covenants contained in this Termination, the parties hereto, intending to be legally bound, hereby agrees as follows:
SECTION 1. Termination. On the Termination Date, each of the parties hereto on behalf of itself and its Affiliates and its and their respective successors and assigns, hereby irrevocably acknowledges, covenants and agrees that the Agreement (and each right, duty, remedy and obligation of the parties thereto of any nature whatsoever) shall automatically terminate in all respects and upon such termination, shall have no further legal force or effect, in each case, except to the extent set forth in Sections 3 and 4 below. No later than three (3) Business Days following the Closing Date, the Company agrees to pay Manager all fees accrued under the Agreement, including the pro rata portion of its Asset Management Fee through the Closing Date.
SECTION 2. Waiver. As of the Closing Date, the Manager hereby irrevocably waives (i) any right to prior notice of termination that may have otherwise been required under the Agreement, and (ii) other than as set forth in Section 1 above, any right to receive any amounts, termination fees, damages, or any other compensation, including, without limitation, any management fees, incentive fees, or other amounts payable upon an early termination, that may otherwise have been due under the Agreement.
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SECTION 3. Retainment of Employees. Each party hereby agrees that the Manager shall not terminate Ms. Linda Flynn as an employee of the Manager without cause through March 31, 2025, and the Company shall reimburse the Manager for any and all costs related to the employment of Ms. Flynn from the Closing Date through March 31, 2025, including, for the avoidance of doubt, any potential liabilities or claims brought with respect to Ms. Flynn’s employment relating to the period from the Closing Date through March 31, 2025.
SECTION 4. Transition Services. During the period from the Effective Date through the Termination Date, the Manager shall provide reasonable transition services to the Company in accordance with Section 10.3 of the Agreement.
SECTION 5. Release of Claims. Each party hereby releases, waives, and forever discharges the other party from any fees, claims, demands, obligations, or liabilities, known or unknown, arising out of or in connection with the Agreement.
SECTION 6. Termination of this Agreement. To the extent the Closing (as defined in the Steel Purchase Agreement) is not consummated and the Steel Purchase Agreement is terminated in accordance with its terms, each party hereby agrees that this Termination shall automatically terminate in all respects.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed or caused this Termination to be executed as of the Effective Date.
| TPHGREENWICH Holdings LLC, a Delaware limited liability company | ||
| By: TPHS Investor LLC, a Delaware limited liability company, its Manager | ||
| By: Madave Management LLC, its Manager | ||
| By: | /s/ Joshua D. Morris | |
| Name: Joshua D. Morris | ||
| Title: Manager | ||
| TPH Asset Manager LLC, a Delaware limited liability company | ||
| By: | /s/ Steven Kahn | |
| Name: Steven Kahn | ||
| Title: Chief Financial Officer | ||
(Signature Page to Asset Management Termination Agreement)