As filed with the Securities and Exchange Commission on February 28, 1997
Registration Statement No. 33-___
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549-1004
Form S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
AMBASE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
95-2962743
(IRS Employee Identification No.)
Greenwich Office Park, Building 2, 51 Weaver Street, Greenwich, CT 06831-5155
(Address of Principal Executive Offices, Including Zip Code)
1993 STOCK INCENTIVE PLAN FOR OFFICERS AND
EMPLOYEES OF AMBASE CORPORATION
and
1985 STOCK OPTION PLAN FOR KEY EMPLOYEES
OF AMBASE CORPORATION AND ITS SUBSIDIARIES
(Full Title of the Plans)
Agent for Service
Michael T. Carenzo, Esq., Secretary
AmBase Corporation
Greenwich Office Park, Building 2, 51 Weaver Street, Greenwich, CT 06831-5155
(203) 532-2000
(Name, Address and Telephone Number, Including Area Code, for Agent For Service)
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share 1 Price 1,2 Fee 1,2
- ------------------------------------------------------------------------------
Common Stock,
par value of $0.01
per share,
of AmBase 6,987,500 $2.74 $13,922,942.50 $4,219.07
Corporation
- ------------------------------------------------------------------------------
1 Estimated solely for the purpose of calculating the registration fee with
respect to 4,895,000 shares of Common Stock, par value of $0.01, to be
registered in accordance with Rule 457(c) and (h) under the Securities Act of
1933, as amended (the "Securities Act"). The price per share is estimated
based on the average of the bid and asked price for AmBase Corporation's
Common Stock on February 26, 1997 and accordingly the Proposed Maximum
Aggregate Offering Price and Registration Fee for such shares is $13,412,300
and $4,064.33, respectively.
2 With respect to 2,092,500 of the shares of Common Stock, par value of $0.01,
to be registered, the price at which the particular options may be exercised
is known and, accordingly, pursuant to Rule 457(h) of the Securities Act, the
Proposed Maximum Aggregate Offering Price and Registration Fee for such
shares, $510,642.50 and $154.74, respectively, have been computed upon the
basis of such exercise prices.
- 1 -
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by AmBase Corporation with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and are incorporated
herein by reference:
(a) AmBase Corporation's Annual Report on Form 10-K filed pursuant to Section
13 or 15(d) of the Exchange Act for the year ended December 31, 1996.
(b) The description of AmBase Corporation's common stock, $0.01 par value (the
"Common Stock") contained in the Registration Statement on Form 8-A (File
No. 1-7265) filed with the Commission on August 21, 1985 under Section 12
of the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by AmBase Corporation pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all such securities then
remaining unsold, shall be deemed to be incorporated by reference in such
Registration Statement and to be a part hereof from the date of filing of such
documents (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by AmBase Corporation pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act in each year during which
the offering made by this Registration Statement is in effect prior to the
filing with the Commission of AmBase Corporation's Annual Report on Form 10-K
covering such year shall not be Incorporated Documents or be incorporated by
reference in this Registration Statement or be a part hereof from and after the
filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
- 2 -
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation--a "derivative action"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement or otherwise.
Article V of AmBase Corporation's By-laws provides that AmBase Corporation
shall to the fullest extent permitted by applicable law as then in effect
indemnify any director, advisory director or officer of AmBase Corporation who
is or was involved in any manner (including, without limitation, as a party or a
witness) or is threatened to be made so involved in any threatened, pending or
completed investigation, claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative (including without limitation, any
derivative action) (a "Proceeding") against all expenses (including attorneys'
fees), judgment, fines and amounts paid in settlement actually and reasonably
incurred by such persons, provided, however, that unless a determination is made
otherwise pursuant to the procedures set forth in the By-laws, such
indemnification shall not apply to such persons with respect to a Proceeding
that was commenced by such persons prior to a change in control (as defined in
such By-laws). Expenses may be advanced by AmBase Corporation prior to final
disposition of a Proceeding following receipt of a statement requesting such
advance and, if required by law at the time of such advance, accompanied by an
undertaking to repay advanced amounts if it is determined thereafter that such
person was not entitled to be indemnified against such expense.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
payment of unlawful dividends or unlawful stock purchases or redemptions, or
(iv) any transaction from which the director derived an improper personal
benefit.
Eleventh Article of the Restated Certificate of Incorporation of AmBase
Corporation provides that to the fullest extent that the General Corporation Law
of the State of Delaware as it now exists or as may hereafter be amended permits
the limitation or elimination of the liability of directors, no director of
AmBase Corporation shall be liable to AmBase Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
AmBase Corporation maintains directors' and officers' insurance policies
which insures directors and officers for certain losses arising from claims by
reason of a wrongful act, as defined therein, under certain circumstances. The
premiums for such insurance are paid by AmBase Corporation.
- 3 -
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
4.1 Restated Certificate of Incorporation of AmBase Corporation as amended
through February 12, 1991 (incorporated by reference to Exhibit 3A
to AmBase Corporation's Annual Report on Form 10-K for the fiscal year
ended December 31, 1990)
4.4 By-laws of AmBase Corporation (as amended through March 15, 1996)
(incorporated by reference to Exhibit 3B to AmBase Corporation's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995)
5 Opinion of Pepe & Hazard LLP as to legality of securities being
registered
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Pepe & Hazard LLP (included in its opinion filed as Exhibit 5)
99.1 1985 Stock Option Plan for Key Employees of AmBase Corporation and its
Subsidiaries
99.2 1993 Stock Incentive Plan for Officers and Employees of AmBase Corporation
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement.
- 4 -
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission defined in Section 3 above by
AmBase Corporation pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Exchange Act) that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to Item 6 or otherwise, the registrant
has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issues.
- 5 -
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Greenwich, County of Fairfield, Connecticut on this
28th day of February, 1997.
AMBASE CORPORATION
By /s/ MICHAEL T. CARENZO
----------------------------
Michael T. Carenzo
Secretary
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities indicated,
this 28th day of February, 1997 in the Town of Greenwich, County of Fairfield,
Connecticut.
SIGNATURE TITLE DATE
/s/ RICHARD A. BIANCO Chairman of the Board, February 28, 1997
- ------------------------ President and
Richard A. Bianco Chief Executive Officer
(Principal Executive Officer)
/s/ JOHN P. FERRARA Vice President, February 28, 1997
- ------------------------ Chief Financial Officer,
John P. Ferrara Treasurer and Controller
(Principal Financial Officer,
Principal Accounting Officer)
/s/ JOHN B. COSTELLO Director February 28, 1997
- ------------------------
John B. Costello
/s/ ROBERT E. LONG Director February 28, 1997
- ------------------------
Robert E. Long
- 6 -
EXHIBIT INDEX
EXHIBIT DESCRIPTION SUBMISSION MEDIA
NUMBER
4.1 Restated Certificate of Incorporated by reference to
Incorporation of AmBase Exhibit 3A to AmBase Corporation's
Corporation, as amended Annual Report on Form 10-K for the
through February 12, 1991 fiscal year ended December 31, 1990
4.4 By-laws of AmBase Corporation Incorporated by reference to Exhibit
(as amended through March 15, 3B to AmBase Corporation's Annual
1996) Report on Form 10-K for the fiscal
year ended December 31, 1995
5 Opinion of Pepe & Hazard LLP Electronic
as to legality of securities
being registered
23.1 Consent of Price Waterhouse LLP Electronic
23.2 Consent of Pepe & Hazard LLP Included in Exhibit 5
(included in its opinion filed
as Exhibit 5)
99.1 1985 Stock Option Plan for Key Incorporated by reference to Exhibit
Employees of AmBase Corporation 10A to AmBase Corporation's Annual
and Subsidiaries Report on Form 10-K for the fiscal
year ended December 31, 1989.
99.2 1993 Stock Incentive Plan for Electronic
Officers and Employees of
AmBase Corporation
- 7 -