The accompanying notes are an integral part of these consolidated financial statements.
The accompanying notes are an integral part of these consolidated financial statements.
The accompanying notes are an integral part of these consolidated financial statements.
The accompanying notes are an integral part of these consolidated financial statements.
Notes to Consolidated Financial Statements
Note 1 – Organization and Going Concern
AmBase Corporation ("AmBase" or the "Company") is a holding company which has an equity investment in a real estate development property to develop real property in New York, New York and owns a commercial office building in Greenwich, Connecticut that is managed and operated by the Company.
The Company's assets currently consist primarily of cash and cash equivalents, an equity investment in a real estate development property and real estate owned. As further discussed in
Note 4
, the Company owns an equity interest in a real estate development property through a joint venture agreement to purchase and develop real property located at 105 through 111 West 57
th
Street in New York, New York (the "111 West 57
th
Property"). The Company is engaged in the management of its assets and liabilities.
A fundamental principle of the preparation of financial statements in accordance with GAAP is the assumption that an entity will continue in existence as a going concern, which contemplates continuity of operations and the realization of assets and settlement of liabilities occurring in the ordinary course of business. In accordance with this requirement, the Company has prepared its accompanying consolidated financial statements assuming the Company will continue as a going concern.
In 2016, the Company adopted Accounting Standards Update ("ASU") 2014-15
Presentation of Financial Statements—Going Concern (Subtopic 205-40)
.
The Company has incurred operating losses and used cash for operating activities for the past several years. The Company has also made significant investments in the 111 West 57th Street Property since 2013. The Company has continued to keep operating expenses at a reduced level; however, there can be no assurance that the Company's current level of operating expenses will not increase or that other uses of cash will not be necessary. The Company believes that based on its current level of operating expenses, its currently available cash resources together with the line of credit from Mr. Bianco as noted below, may not be sufficient to cover operating cash needs through the twelve month period from the financial statement reporting date. Based on the above factors, management determined there is substantial doubt about the Company's ability to continue as a going concern within one year after the date that the financial statements are issued. The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. The financial statements do not include adjustments to the carrying value of assets and liabilities which might be necessary should the Company not continue in operation.
Over the next several months, the Company will seek to manage its current level of cash and cash equivalents, through various ways, including but not limited to, reducing operating expenses, possible asset sales and/or long term borrowings, although this cannot be assured. In order to continue on a long-term basis, the Company must raise additional capital through the sale of assets or long term borrowings. There can be no assurance that the Company will be able to attain such financing at terms acceptable to the Company, if at all.
In May 2016, the Company and Mr. Richard A. Bianco, the Company's Chairman President and Chief Executive Officer ("R. A. Bianco") entered into an agreement for Mr. R. A. Bianco to provide to the Company, a secured working capital line of credit of up to one million dollars ($1,000,000) or additional amount(s) as may be necessary and agreed to on an as needed basis, if and when necessary, subject to customary and market terms and conditions to be agreed upon at such time. A copy of such agreement is filed as exhibit 10.1 to the Company's Form 10-Q for the quarterly period ended March 31, 2016. Pursuant to this agreement in January 2017, Mr. Bianco made a $500,000 loan to the Company for use as working capital. The loan accrues interest at 5.25% per annum and is due on the earlier of the date the Company receives funds from any source sufficient to pay all amounts due under the loan, including accrued interest thereon, or December 31, 2019.
Note 2 - Summary of Significant Accounting Policies
Basis of Accounting
The consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP").
Use of estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions, that it deems reasonable, that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from such estimates and assumptions.
Principles of consolidation
The consolidated financial statements are comprised of the accounts of the Company and its wholly owned subsidiaries. All material intercompany transactions and balances have been eliminated.
Equity method investment
Investments and ownership interests are accounted for under the equity method of accounting if the Company has the ability to exercise significant influence, but not control (under GAAP), over the investment. Investments accounted for under the equity method are carried at cost, plus or minus the Company's equity in the increases and decreases in the net assets after the date of acquisition and certain other adjustments. The Company's share of income or loss for equity method investments is recorded in the consolidated statements of operations as equity income (loss). Dividends received, if any, would reduce the carrying amount of the Company's investment.
Non-controlling interests
Non-controlling interests as presented in the Company's consolidated financial statements represents the minority ownership's investment in 111 West 57
th
Investment LLC, a Delaware limited liability company ("Investment LLC"). For additional information see
Note 4
.
Cash and cash equivalents
Highly liquid investments, consisting principally of funds held in short-term money market accounts, with original maturities of less than three months, are classified as cash equivalents. The majority of the Company's cash and cash equivalents balances are maintained with a limited number of major financial institutions. Cash and cash equivalents balances at institutions may, at times, be above the Federal Deposit Insurance Corporation insured limit per account.
Income taxes
The Company and its domestic subsidiaries file a consolidated federal income tax return. The Company recognizes both the current and deferred tax consequences of all transactions that have been recognized in the consolidated financial statements, calculated based on the provisions of enacted tax laws, including the tax rates in effect for current and future years. Net deferred tax assets are recognized immediately when a more likely than not criterion is met; that is, a greater than 50% probability exists that the tax benefits will actually be realized sometime in the future. For additional information including a discussion of income tax matters see
Note 9
.
Earnings per share
Basic earnings per share ("EPS") excludes dilution and is computed by dividing net income (loss) by the weighted average number of common shares outstanding for the period. Diluted EPS reflects the potential dilution of EPS that could occur if options to issue common stock were exercised. There were no stock options outstanding at December 31, 2016 and December 31, 2015.
Stock-based compensation
Under the Company's 1993 Stock Incentive Plan (the "1993 Plan"), the Company may grant to officers and employees of the Company and its subsidiaries, stock options ("Options"), stock appreciation rights ("SARs"), restricted stock awards ("Restricted Stock"), merit awards ("Merit Awards") and performance share awards ("Performance Shares"), through May 28, 2018. A pre-determined number of shares of the Company's Common Stock are reserved for issuance under the 1993 Plan (upon the exercise of Options and Stock Appreciation Rights, upon awards of Restricted Stock and Performance Shares); however, only a portion of such shares shall be available for issuance for Restricted Stock Awards and Merit Awards. Shares issued pursuant to the 1993 Plan shall be authorized but unissued shares of Common Stock. Options may be granted as incentive stock options ("ISOs") intended to qualify for favorable tax treatment under Federal tax law or as nonqualified stock options ("NQSOs"). SARs may be granted with respect to any Options granted under the 1993 Plan and may be exercised only when the underlying Option is exercisable. The 1993 Plan requires that the exercise price of all Options and SARs be equal to or greater than the fair value of the Company's Common Stock on the date of grant of that Option. The term of any NQSO, ISO or related SAR cannot exceed terms under federal tax law and/or as prescribed in the 1993 Plan. Subject to the terms of the 1993 Plan and any additional restrictions imposed at the time of grant, Options and any related SARs ordinarily will become exercisable pursuant to a vesting period prescribed at the time of grant. In the case of a "Change of Control" of the Company (as defined in the 1993 Plan), options granted pursuant to the 1993 Plan may become fully exercisable as to all optioned shares from and after the date of such Change in Control in the discretion of the Committee or as may otherwise be provided in the grantee's Option agreement. Death, retirement, or absence for disability will not result in the cancellation of any Options.
Stock-based compensation expense for all stock-based compensation awards for which vesting is based solely on employment service, are based on the grant date fair value estimated in accordance with accounting principles generally accepted in the United States of America. The Company recognizes these compensation costs for only those shares expected to vest, on a straight-line basis over the requisite service period of the award, which is generally the option vesting term. Compensation expense relating to stock options is recorded in the Consolidated Statement of Operations, with a corresponding increase in additional paid-in capital in the Consolidated Statement of Changes in Stockholders' Equity. See
Note 8
herein for a further discussion of stock-based compensation.
Depreciation
Depreciation expense for the Company's owned building is recorded on a straight-line basis over the useful lives of the assets. Tenant improvements if any, would be depreciated over the lesser of the remaining life of the tenants' lease or the estimated useful lives of the improvements. For additional information see
Note 3
.
New Accounting Pronouncements
There are no new accounting pronouncements that could materially affect the Company's consolidated financial statements.
Note 3 – Real Estate Owned
Real estate owned consists of a commercial office building in Greenwich, Connecticut that is managed and operated by the Company. A portion of the building is utilized by the Company for office space; the remaining space is currently unoccupied and available for lease. Depreciation expense for the building is calculated on a straight-line basis.
Information relating to the Company's real estate owned in Greenwich, Connecticut is as follows:
|
|
December 31, 2016
|
Area of building in square feet
|
|
14,500
|
Square feet utilized by Company
|
|
3,500
|
Number of years depreciation is based upon
|
|
39
|
Although the portion of the building not being utilized by the Company is currently unoccupied and available for lease, based on the Company's analysis, the Company believes the property's fair value exceeds the property's current carrying value. The Company's impairment analysis includes a comprehensive range of factors including but not limited to: the location of the property; property condition; current market conditions; comparable sales; current market rents in the area; new building zoning restrictions; raw land values; new building construction costs; building operating costs; leasing values; and cap rates for comparable buildings in the area. Varying degrees of weight are given to each factor. Based on the Company's analysis, these factors taken together and/or considered individually, form the basis for the Company's analysis that no impairment condition exists.
The Company performs impairment tests on a regular basis and if events or circumstances indicate that the property's carrying value may not be recoverable. Based on the Company's analysis, the Company believes the carrying value of the real estate owned as of December 31, 2016, has not been impaired and, therefore, the carrying value of the asset is fully recoverable by the Company. The building is carried at cost, net of accumulated depreciation.
Note 4 – Investment in 111 West 57th Partners LLC
On June 28, 2013, 111 West 57
th
Investment LLC, ("Investment LLC"), a then newly formed subsidiary of the Company, entered into a joint venture agreement (as amended, the "JV Agreement") with 111 West 57
th
Sponsor LLC, (the "Sponsor"), pursuant to which Investment LLC invested (the "Investment") in a real estate development property to purchase and develop the 111 West 57
th
Street Property (the "111 West 57
th
Property"). In consideration for making the Investment, Investment LLC was granted a membership interest in 111 West 57
th
Partners LLC ("111 West 57
th
Partners"), which indirectly acquired the 111 West 57
th
Property on June 28, 2013 (the "Joint Venture," and such date, the "Closing Date"). The Company also indirectly contributed an additional amount to the Joint Venture in exchange for an additional indirect interest in the Joint Venture. Other members and the Sponsor contributed additional cash and/or property to the Joint Venture. The Joint Venture plans to redevelop the 111 West 57
th
Property into a luxury residential tower and retail project.
Amounts relating to the Company's initial investment and other information relating to the 111 West 57
th
Property is as follows:
($ in thousands)
|
|
|
|
Company's aggregate initial investment
|
|
$
|
57,250
|
|
Company's aggregate initial membership interest %
|
|
|
60.3
|
%
|
Other members and Sponsor initial investment
|
|
$
|
37,750
|
|
Approximate gross square feet of project
|
|
|
346,000
|
|
On June 30, 2015, 111 West 57
th
Partners obtained financing for the 111 West 57
th
Property. The financing was obtained in two parts: (i) a first mortgage construction loan with AIG Asset Management (US), LLC ("AIG"); and (ii) a mezzanine loan with Apollo Commercial Real Estate Finance, Inc. ("Apollo"). Both loans have a four-year term with a one-year extension option subject to satisfying certain conditions. The loan agreements also include customary events of default and other customary terms and conditions. Simultaneously with the closing of the AIG and the Apollo financing, 111 West 57
th
Partners repaid all outstanding liabilities and obligations to Annaly CRE, LLC under the initial mortgage and acquisition loan agreement, dated June 28, 2013, between 111 West 57
th
Partners and Annaly CRE, LLC. The remaining loan proceeds will be drawn down and used as necessary for construction and related costs, loan interest escrow and other related project expenses for development of the 111 West 57
th
Property.
Information relating to the June 30, 2015 financing for 111 West 57
th
Partners is as follows:
|
|
|
|
(in thousands)
|
|
|
|
Financing obtained by 111 West 57
th
Partners
|
|
$
|
725,000
|
|
Annaly CRE LLC initial mortgage and acquisition loan repaid
|
|
$
|
230,000
|
|
In July 2015, based on available net proceeds received from the financing and equity previously invested in the project, funds were distributed to the members of 111 West 57
th
Partners (the "July 2015 Distribution"). In connection therewith, the Company, principally through Investment LLC, received a distribution but reserved its rights to dispute the actual amount to which it is entitled based on the 111 West 57
th
Partners Operating Agreement and the Company's percentage interests thereunder. In accordance with the Second Amended and Restated Investment Operating Agreement as noted herein, the Company through Investment LLC fully repaid 111 West 57
th
Capital LLC, an entity wholly owned by Mr. R.A. Bianco ("Capital LLC"), its capital contributions as noted below. The remaining amount was retained by the Company.
Information relating to the July 2015 Distribution is as follows:
|
|
|
|
(in thousands)
|
|
|
|
Distribution attributable to Company's investment
|
|
$
|
11,699
|
|
Distribution retained by the Company, net of amounts repaid to Capital LLC
|
|
$
|
1,831
|
|
The JV Agreement and related operating agreements generally provide that all distributable cash shall be distributed as follows: (i) first, 100% to the members in proportion to their percentage interests until Investment LLC has received distributions yielding a 20% internal rate of return as calculated; (ii) second, 100% to the Sponsor as a return of (but not a return on) any additional capital contributions made by the Sponsor on account of manager overruns; and (iii) thereafter, (a) 50% to the members in proportion to their respective percentage interests at the time of such distribution, and (b) 50% to the Sponsor.
Additionally, the JV Agreement provides that (i) Mr. Richard A. Bianco (the Company's current Chairman, President and Chief Executive Officer) ("Mr. R. A. Bianco"), his immediate family, and/or any limited liability company wholly-owned thereby, and/or a trust in which Mr. R. A. Bianco and/or his immediate family is the beneficiary, shall at all times own, in the aggregate, not less than 20% of the outstanding shares of AmBase; and (ii) Mr. R. A. Bianco shall remain the Chairman of the Board of Directors of AmBase for the duration of the JV Agreement.
In March 2014, the Company entered into an amended and restated operating agreement for Investment LLC (the "Amended and Restated Investment Operating Agreement") to grant a 10% subordinated participation interest in Investment LLC to Mr. R. A. Bianco as contingent future incentive for Mr. R. A. Bianco's past, current and anticipated ongoing role to develop and commercialize the Company's equity investment in the 111 West 57
th
Property. Pursuant to the terms of the Amended and Restated Investment Operating Agreement, Mr. R.A. Bianco has no voting rights with respect to his interest in Investment LLC, and his entitlement to receive 10% of the distributions from Investment LLC is subject to the Company first receiving distributions equal to 150% of the Company's initial aggregate investment in Investment LLC and the Joint Venture, plus any additional investments by the Company
,
and only with respect to any distributions thereafter. At the current time the Company has not expensed nor accrued any amounts relating to this subordinated participation interest, as no amount or range of amounts can be reasonably estimated or assured.
During 2014, in connection with the funding of additional capital calls under the JV Agreement for required borrowing and development costs for the 111 West 57
th
Property, the Company's management and its Board of Directors concluded that, given the continuing development risks of the 111 West 57
th
Property and the Company's financial position, the Company should not at that time increase its already significant concentration and risk exposure to the 111 West 57th Property. Nonetheless, the Company sought to limit dilution of its interest in the Joint Venture resulting from any failure to fund the capital call requirements, but at the same time wished to avoid the time, expense and financial return requirements (with attendant dilution and possible loss of voting rights) that obtaining a replacement third-party investor would require. The Company therefore entered into a second amended and restated operating agreement for Investment LLC ("Second Amended and Restated Investment Operating Agreement") pursuant to which Capital LLC was admitted as a member of Investment LLC. In exchange for Capital LLC contributing toward Investment LLC capital calls in respect of the 111 West 57
th
Property,available cash of Investment LLC will be distributed first to Capital LLC until it has received a 20% internal rate of return (calculated as provided for in the JV Agreement as noted above), second to the Company until it has received 150% of its capital, and; thereafter, available cash is split 10/90 with 10% going to Mr. R.A. Bianco as the subordinated participation interest noted above and 90% going to Capital LLC and the Company pari-passu, with Capital LLC receiving one-half of its pro-rata share based on capital contributed and the Company receiving the balance. No other material changes were made to the Amended and Restated Investment Operating Agreement, and neither Mr. Bianco nor Capital LLC has any voting rights with respect to their interest and investment in Investment LLC.
In March 2017, the Company and Mr. Richard A. Bianco, the Company's Chairman, President and Chief Executive Officer ("R. A. Bianco") entered into an agreement for Mr. R. A. Bianco to provide to the Company a financial commitment in the form of a line of credit up to ten million dollars ($10,000,000) or additional amount(s) as may be necessary and agreed to enable AmBase to contribute capital to Investment LLC and/or other affiliated subsidiaries of the Company to meet capital calls for the of 111 West 57
th
Property if and when the case may be necessary on terms agreeable to/by the Company (as determined by the independent members of the Board of Directors) and R. A. Bianco at such time. The agreement provides that additional borrowings from Mr. R. A. Bianco pursuant to this line of credit shall be secured by the Company's commercial office building in Greenwich, Connecticut.
Capital contributed by Capital LLC in December 2014 and April 2015, which was fully repaid as part of the July 2015 Distribution, was as follows:
(in thousands)
|
|
|
|
Capital contributed by Capital LLC
|
|
$
|
9,868
|
|
As part of the July 2015 Distribution, Capital LLC was repaid the full amount of its capital investment. Additional amounts may still be payable to Capital LLC based on investment returns received on the 111 West 57
th
Property as further described herein.
Pursuant to various capital contribution requests in December 2014, February 2015 and April 2015, the Company was requested to contribute funds to the Joint Venture (the "Capital Contribution Requests"). The Company chose to contribute only a portion of the amounts requested pursuant to the Capital Contribution Requests. The remaining amounts requested pursuant to the Capital Contribution Requests (not funded by the Company) were contributed by either the Sponsor, which deemed its capital contributions on behalf of the Company to be Shortfall Capital Contributions ("Shortfall Capital Contributions") or by the Company from Capital LLC, pursuant to the terms of the Second Amended and Restated Investment Operating Agreement as noted herein.
The Company made additional capital contributions to the Joint Venture as indicated below:
(in thousands)
|
|
Year Ended December 31 , 2016
|
|
Capital contributions
|
|
$
|
-
|
|
In accordance with the JV Agreement, Shortfall Capital Contributions may be treated either as a member loan or as a dilutive capital contribution by the funding party valued at one and one-half times the amount actually contributed. The Sponsor deemed the Shortfall Capital Contributions as dilutive capital contributions to the Company. The Company believes in accordance with the terms of the agreements, a portion of the Shortfall Capital Contribution amounts should be treated as a member loan, therefore, resulting in no dilution to the Company. The Sponsor contends that the Capital Contribution Requests, if taken together, would cause the Company to be diluted to approximately 48%. The parties have a dispute with regard to the calculation of the revised investment percentages resulting from the Capital Contribution Requests, along with the treatment and allocation of these Shortfall Capital Contribution amounts.
In April 2016, the Company filed an action in New York State Supreme Court against the Sponsors, et al., pursuant to which the Company is seeking compensatory damages, as well as punitive damages and equitable relief including a declaration of the parties' rights, an accounting, and a constructive trust over distributions. For additional information, see
Note 10 – Legal Proceedings.
The Company has recorded the investment in 111 West 57
th
Partners utilizing the equity method of accounting, as pursuant to the various agreements the Company has significant influence, but does not have control, as defined under GAAP. Accordingly, the results of operations of 111 West 57
th
Partners are included in equity income (loss) in the Company's consolidated statements of operations. As of December 31, 2016, the Company's carrying amount of its investment in 111 West 57
th
Partners, as noted in the Company's consolidated balance sheet, is greater than the Company's equity in the underlying net assets of 111 West 57
th
Partners by $867,000, categorized as goodwill, due to a difference resulting from the reduction in equity for syndication fees paid relating to 111 West 57
th
Partners. The Company reviews its investments and ownership interests recorded under the equity method for impairment on a regular basis and if events or changes in circumstances indicate that a loss in the value of its investment may be other than temporary. Based on the Company's analysis, the Company believes, there was no impairment on the Company's equity method investment for the periods ended December 31, 2016 or December 31, 2015.
The following tables present summarized financial information for the Company's equity method investment in 111 West 57
th
Partners. The amounts shown represent 100% of the financial position and results of operations of 111 West 57
th
Partners for the dates indicated below.
(in thousands)
Assets:
|
|
December 31, 2016
|
|
|
December 31, 2015
|
|
Real estate held for development, net
|
|
$
|
563,133
|
|
|
$
|
440,370
|
|
Escrow deposits
|
|
|
9,000
|
|
|
|
9,400
|
|
Other assets
|
|
|
6,908
|
|
|
|
26,827
|
|
Total assets
|
|
$
|
579,041
|
|
|
$
|
476,597
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
Loans payable
|
|
$
|
441,749
|
|
|
$
|
340,693
|
|
Other liabilities
|
|
|
16,788
|
|
|
|
14,447
|
|
Total liabilities
|
|
|
458,537
|
|
|
|
355,140
|
|
Equity:
|
|
|
|
|
|
|
|
|
Total members' equity
|
|
|
120,504
|
|
|
|
121,457
|
|
Total liabilities and members' equity
|
|
$
|
579,041
|
|
|
$
|
476,597
|
|
(in thousands)
|
|
Year Ended December 31 , 2016
|
|
|
Year Ended December 31 , 2015
|
|
Rental income
|
|
$
|
0
|
|
|
$
|
0
|
|
Expenses
|
|
|
953
|
|
|
|
3,158
|
|
Net income (loss)
|
|
$
|
(953
|
)
|
|
$
|
(3,158
|
)
|
Note 5 - Savings Plans
The Company sponsors the AmBase 401(k) Savings Plan (the "Savings Plan"), which is a "Section 401(k) Plan" within the meaning of the Internal Revenue Code of 1986, as amended (the "Code"). The Savings Plan permits eligible employees to make contributions of a percentage of their compensation, which are matched by the Company at a percentage of the employees' elected deferral. Employee contributions to the Savings Plan are invested at the employee's discretion, in various investment funds. The Company's matching contributions are invested in the same manner as the compensation reduction contributions. All contributions are subject to maximum limitations contained in the Code.
The Company's matching contributions to the Savings Plan, charged to expense, were as follows:
($ in thousands)
|
|
Year Ended December 31, 2016
|
|
|
Year Ended December 31, 2015
|
|
Company matching contributions
|
|
$
|
25
|
|
|
$
|
30
|
|
Employer match %
|
|
|
33
|
%
|
|
|
33
|
%
|
Note 6 - Stockholders' Equity
Authorized common stock consists of the following:
(shares in thousands)
|
|
December 31, 2016
|
|
|
December 31, 2015
|
|
Par value
|
|
$
|
0.01
|
|
|
$
|
0.01
|
|
Authorized shares
|
|
|
85,000
|
|
|
|
200,000
|
|
Issued shares
|
|
|
46,410
|
|
|
|
46,410
|
|
Outstanding shares
|
|
|
40,738
|
|
|
|
40,738
|
|
Authorized cumulative preferred stock consists of the following:
(shares in thousands)
|
|
December 31, 2016
|
|
|
December 31, 2015
|
|
Par value
|
|
$
|
0.01
|
|
|
$
|
0.01
|
|
Authorized shares
|
|
|
20,000
|
|
|
|
50,000
|
|
Issued shares
|
|
|
-
|
|
|
|
-
|
|
Outstanding shares
|
|
|
-
|
|
|
|
-
|
|
At the Company's June 2, 2016 Annual Meeting of Stockholders, the Company's stockholders approved an amendment to the Company's Restated Certificate of Incorporation to reduce the number of authorized shares of the Company's common stock and cumulative preferred stock as noted above.
Changes in the outstanding shares of Common Stock of the Company are as follows:
(in thousands)
|
Year Ended December 31, 2016
|
|
Year Ended December 31, 2015
|
Common stock outstanding at beginning of period
|
40,738
|
|
40,738
|
Common stock repurchased for treasury
|
-
|
|
-
|
Issuance of treasury stock
|
-
|
|
-
|
Common stock outstanding at end of period
|
40,738
|
|
40,738
|
Changes in the treasury shares of Common Stock of the Company are as follows:
(in thousands)
|
Year Ended December 31, 2016
|
|
Year Ended December 31, 2015
|
Treasury stock held at beginning of period
|
5,672
|
|
5,672
|
Common stock repurchased for treasury
|
-
|
|
-
|
Issuance of treasury stock
|
-
|
|
-
|
Treasury stock held at end of period
|
5,672
|
|
5,672
|
Common Stock Repurchase Plan
The Company's common stock repurchase plan (the "Repurchase Plan") allows for the repurchase by the Company of its common stock in the open market. The Repurchase Plan is conditioned upon favorable business conditions and acceptable prices for the common stock. Purchases under the Repurchase Plan may be made, from time to time, in the open market, through block trades or otherwise. Depending on market conditions and other factors, purchases may be commenced or suspended any time or from time to time without prior notice. Pursuant to the Repurchase Plan, the Company has repurchased shares of common stock from unaffiliated parties at various dates at market prices at their time of purchase, including broker commissions.
Information relating to the Repurchase Plan is as follows:
(in thousands
)
|
|
Year Ended
December 31, 2016
|
|
Common shares repurchased to treasury during the period
|
|
|
-
|
|
Aggregate cost of shares repurchased during the period
|
|
$
|
-
|
|
(in thousands)
|
December 31, 2016
|
Total number of common shares authorized for repurchase
|
|
10,000
|
Total number of common shares repurchased to date
|
|
6,226
|
Total number of shares that may yet be repurchased
|
|
3,774
|
Common stock reserved for issuance under the Company's 1993 Stock Incentive Plan as further described in
Note 8
herein, and other non-related employee benefit plans is as follows:
(in thousands)
|
December 31, 2016
|
1993 Stock Incentive Plan
|
|
4,320
|
Other employee benefit plan
|
|
110
|
Total common shares reserved for issuance
|
|
4,430
|
Stockholder Rights Plan
On January 29, 1986, the Company's Board of Directors declared a dividend distribution of one right for each outstanding share of Common Stock of the Company. The rights, as amended, which entitle the holder to purchase from the Company a common share at a price of $75.00, are not exercisable until either a person or group of affiliated persons acquires 25% or more of the Company's outstanding common shares or upon the commencement or disclosure of an intention to commence a tender offer or exchange offer for 20% or more of the common shares. The rights are redeemable by the Company at $0.05 per right at any time until the earlier of the tenth day following an accumulation of 20% or more of the Company's shares by a single acquirer or group, or the occurrence of certain Triggering Events (as defined in the Stockholder Rights Plan). In the event the rights become exercisable and thereafter, the Company is acquired in a merger or other business combination, or in certain other circumstances, each right will entitle the holder to purchase from the surviving corporation, for the exercise price, Common Stock having a market value of twice the exercise price of the right. The rights are subject to adjustment to prevent dilution and expire on February 10, 2021.
Note 7 - Earnings Per Share
The calculation of basic and diluted earnings per share, including the effect of dilutive securities is as follows:
(in thousands, except per share data)
|
|
Year Ended December 31, 2016
|
|
|
Year Ended December 31, 2015
|
|
Net income (loss)
|
|
$
|
(3,219
|
)
|
|
$
|
(4,625
|
)
|
Weighted average common shares outstanding
|
|
|
40,738
|
|
|
|
40,738
|
|
|
|
|
|
|
|
|
|
|
Assumed dilutive effect of stock option exercise(s)
|
|
|
-
|
|
|
|
-
|
|
Weighted average common shares outstanding assuming dilution
|
|
|
40,738
|
|
|
|
40,738
|
|
Net income (loss) per common share - basic
|
|
$
|
(0.08
|
)
|
|
$
|
(0.11
|
)
|
Net income (loss) per common share - assuming dilution
|
|
$
|
(0.08
|
)
|
|
$
|
(0.11
|
)
|
Options to purchase shares of common stock which were excluded from the computation of diluted earnings per share due to the effect of being antidilutive in the computation of earnings per share were as follows:
(in thousands)
|
December 31, 2016
|
|
December 31, 2015
|
Option shares
|
-
|
|
-
|
Note 8 - Incentive Plans
Under the Company's 1994 Senior Management Incentive Compensation Plan (the "1994 Plan"), any executive officer of the Company whose compensation is required to be reported to stockholders under the Securities Exchange Act of 1934 (the "Participants") and who is serving as such at any time during the fiscal year as to which an award is granted, may receive an award of a cash bonus ("Bonus"), in an amount determined by the Personnel Committee of the Company's Board of Directors (the "Committee") and payable from an annual bonus fund (the "Annual Bonus Pool"). The Committee may award Bonuses under the 1994 Plan to Participants not later than 120 days after the end of each fiscal year (the "Reference Year").
If the Committee grants a Bonus under the 1994 Plan, the amount of the Annual Bonus Pool will be an amount equal to the sum of (i) plus (ii), where:
(i) a percentage of the amount by which the Company's Total Stockholders' Equity, as defined, on the last day of a Reference Year increased over the Company's Total Stockholders' Equity, as defined, on the last day of the immediately preceding Reference Year; and
(ii) a percentage of the amount by which the Company's market value, as defined, on the last day of the Reference Year increased over the Company's market value on the last day of the immediately preceding Reference Year.
Notwithstanding the foregoing, the 1994 Plan provides that in the event of a decrease in either or both of items (i) and/or (ii) above, the Annual Bonus Pool is determined by reference to the last Reference Year in which there was an increase in such item. If the Committee determines within the time period to award a Bonus, the share of the Annual Bonus Pool to be allocated to Participants shall be pursuant to percentages of the Annual Bonus Pool as set forth in the 1994 Plan to the Company's Chief Executive Officer, and a percentage of the Annual Bonus Pool shall be allocated pro rata to each of the Company's Participants as determined by the Committee. The Committee in its discretion may reduce the percentage of the Annual Bonus Pool to any Participant for any Reference Year, and such reduction shall not increase the share of any other Participant. The 1994 Plan is not the exclusive plan under which the Executive Officers may receive cash or other incentive compensation or bonuses. No bonuses were paid attributable to the 1994 Plan for 2016 and 2015.
Under the Company's 1993 Stock Incentive Plan (the "1993 Plan"), the Company may grant to officers and employees of the Company and its subsidiaries, stock options ("Options"), stock appreciation rights ("SARs"), restricted stock awards ("Restricted Stock"), merit awards ("Merit Awards") and performance share awards ("Performance Shares") through May 28, 2018. A pre-determined number of shares of the Company's Common Stock are reserved for issuance under the 1993 Plan (upon the exercise of Options and Stock Appreciation Rights, and awards of Restricted Stock and Performance Shares); however, only a portion of such shares are available for the issuance of Restricted Stock Awards and Merit Awards. Such shares shall be authorized but unissued shares of Common Stock. Options may be granted as incentive stock options ("ISOs") intended to qualify for favorable tax treatment under Federal tax law or as nonqualified stock options ("NQSOs"). SARs may be granted with respect to any Options granted under the 1993 Plan and may be exercised only when the underlying Option is exercisable. The 1993 Plan requires that the exercise price of all Options and SARs be equal to or greater than the fair value of the Company's Common Stock on the date of grant of that Option. The term of any NQSO, ISO or related SAR cannot exceed terms under federal tax law and/or as prescribed in the 1993 Plan. Subject to the terms of the 1993 Plan and any additional restrictions imposed at the time of grant, Options and any related SARs ordinarily will become exercisable pursuant to a vesting period prescribed at the time of grant. In the case of a "Change of Control" of the Company (as defined in the 1993 Plan), Options granted pursuant to the 1993 Plan may become fully exercisable as to all optioned shares from and after the date of such Change in Control in the discretion of the Committee or as may otherwise be provided in the grantee's Option agreement. Death, retirement, or absence for disability will not result in the cancellation of any Options.
As a condition to any award of Restricted Stock or Merit Award under the 1993 Plan, the Committee may require a participant to pay an amount equal to, or in excess of, the par value of the shares of Restricted Stock or Common Stock awarded to him or her. Restricted Stock may not be sold, assigned, transferred, pledged or otherwise encumbered during a "Restricted Period", which in the case of grants to employees shall not be less than one year from the date of grant. The Restricted Period with respect to any outstanding shares of Restricted Stock awarded to employees may be reduced by the Committee at any time, but in no event shall the Restricted Period be less than one year. Except for such restrictions, the employee as the owner of such stock shall have all of the rights of a stockholder including, but not limited to, the right to vote such stock and to receive dividends thereon as and when paid. In the event that an employee's employment is terminated for any reason, an employee's Restricted Stock will be forfeited; provided, however, that the Committee may limit such forfeiture in its sole discretion. At the end of the Restricted Period, all shares of Restricted Stock shall be transferred free and clear of all restrictions to the employee. In the case of a Change in Control of the Company (as defined in the 1993 Plan), an employee may receive his or her Restricted Stock free and clear of all restrictions in the discretion of the Committee, or as may otherwise be provided pursuant to the employee's Restricted Stock award.
Performance Share awards of Common Stock under the 1993 Plan shall be earned on the basis of the Company's performance in relation to established performance measures for a specific performance period. Such measures may include, but shall not be limited to, return on investment, earnings per share, return on stockholder's equity, or return to stockholders. Performance Shares may not be sold, assigned, transferred, pledged or otherwise encumbered during the relevant performance period. Performance Shares may be paid in cash, shares of Common Stock or shares of Restricted Stock in such portions as the Committee may determine. An employee must be employed at the end of the performance period to receive payments of Performance Shares; provided, however, in the event that an employee's employment is terminated by reason of death, disability, retirement or other reason approved by the Committee, the Committee may limit such forfeiture in its sole discretion. In the case of a Change in Control of the Company (as defined in the 1993 Plan), an employee may receive his or her Performance Shares in the discretion of the Committee, or as may otherwise be provided in the employee's Performance Share award.
Incentive plan activity is summarized as follows:
(shares in thousands)
|
|
Number of
Shares Under Option
|
|
|
Weighted Average Exercise Price
|
|
|
|
|
|
|
|
|
Outstanding at January 1, 2015
|
|
|
-
|
|
|
$
|
-
|
|
Exercised
|
|
|
-
|
|
|
|
-
|
|
Granted
|
|
|
-
|
|
|
|
-
|
|
Expired
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2015
|
|
|
-
|
|
|
|
-
|
|
Exercised
|
|
|
-
|
|
|
|
-
|
|
Granted
|
|
|
-
|
|
|
|
-
|
|
Expired
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2016
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at:
|
|
|
|
|
|
|
|
|
December 31, 2016
|
|
|
-
|
|
|
$
|
-
|
|
December 31, 2015
|
|
|
-
|
|
|
$
|
-
|
|
Information relating to the 1993 Plan is as follows:
(in thousands)
|
|
December 31, 2016
|
|
|
December 31, 2015
|
|
Unamortized compensation cost relating to non-vested stock options
|
|
$
|
-
|
|
|
$
|
-
|
|
Stock based compensation expense recorded for the year ended
|
|
$
|
-
|
|
|
$
|
-
|
|
Options to purchase shares of common stock which were excluded from computation of diluted earnings per share due to the effect of being anti-dilutive in the computation of earnings per share.
|
|
|
-
|
|
|
|
|
|
Common shares reserved for issuance
|
|
|
4,320
|
|
|
|
|
|
Shares available for future stock option grants
|
|
|
4,320
|
|
|
|
|
|
Intrinsic value of options outstanding
|
|
$
|
-
|
|
|
|
|
|
Intrinsic value of options exercisable
|
|
$
|
-
|
|
|
|
|
|
The fair value of option awards are estimated on the date of grant using the Black-Scholes-Merton option valuation model ("Black-Scholes") utilizing certain assumptions at the time of valuation. Expected volatilities are based on historical volatility of the Company's stock. The Company uses historical data to estimate option exercises and employee terminations within the valuation model. The expected term of options granted is estimated based on the contractual lives of option grants, option vesting period and historical data and represents the period of time that options granted are expected to be outstanding. The risk-free interest rate for periods within the contractual life of the option is based on the U.S. Treasury bond yield in effect at the time of grant.
The Black-Scholes option valuation model requires the input of highly subjective assumptions, including the expected life of the stock-based award and stock price volatility. The assumptions utilized represent management's best estimates, but these estimates involve inherent uncertainties and the application of management's judgment. As a result, if other assumptions had been used, our recorded stock-based compensation expense could have been materially different from the amounts previously recorded. In addition, the Company is required to estimate the expected forfeiture rate and only recognize expense for those shares expected to vest. If the actual forfeiture rate is materially different from our estimate, the share-based compensation expense could be materially different. The Company believes that the use of the Black-Scholes model meets the fair value measurement objectives of accounting principles generally accepted in the United States of America and reflects all substantive characteristics of the instruments being valued.
The Black-Scholes option valuation model was developed for use in estimating the fair value of traded options, which have no vesting restrictions and are fully transferable. In addition, option valuation models require the input of highly subjective assumptions, including the expected stock price volatility. Because the Company's employee stock options have characteristics significantly different from those of traded options, and because changes in the subjective input assumptions can materially affect the fair value estimate, and given the substantial changes in the price per share of the Company's Common Stock, in management's opinion, the existing models do not necessarily provide a reliable single measure of the fair value of its employee stock options.
Compensation expense relating to stock options would be recorded in the Consolidated Statement of Operations, with a corresponding increase to additional paid in capital in the Consolidated Statements of Changes in Stockholders' Equity.
Note 9 - Income Taxes
The components of income tax expense (benefit) are as follows:
(in thousands)
|
|
Year Ended
December 31, 2016
|
|
|
Year Ended
December 31, 2015
|
|
Federal - current
|
|
$
|
-
|
|
|
$
|
-
|
|
State - current
|
|
|
(142
|
)
|
|
|
140
|
|
Total current
|
|
|
(142
|
)
|
|
|
140
|
|
Federal - deferred
|
|
|
(1,752
|
)
|
|
|
(1,365
|
)
|
State - deferred
|
|
|
(105
|
)
|
|
|
(205
|
)
|
Change in valuation allowance
|
|
|
1,857
|
|
|
|
1,570
|
|
Total deferred
|
|
|
-
|
|
|
|
-
|
|
Income tax expense (benefit)
|
|
$
|
(142
|
)
|
|
$
|
140
|
|
The components of pretax income (loss) and the difference between income taxes computed at the statutory federal rate and the provision for income taxes are as follows:
(in thousands)
|
|
Year Ended
December 31, 2016
|
|
|
Year Ended
December 31, 2015
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes
|
|
$
|
(3,361
|
)
|
|
$
|
(4,485
|
)
|
Tax expense (benefit) :
|
|
|
|
|
|
|
|
|
Tax at statutory federal rate
|
|
$
|
(1,176
|
)
|
|
$
|
(1,570
|
)
|
State income taxes
|
|
|
(142
|
)
|
|
|
140
|
|
Permanent items
|
|
|
–
|
|
|
|
–
|
|
Other
|
|
|
(681
|
)
|
|
|
-
|
|
Change in valuation allowance
|
|
|
1,857
|
|
|
|
1,570
|
|
Income tax expense (benefit)
|
|
$
|
(142
|
)
|
|
$
|
140
|
|
A reconciliation of the United States federal statutory rate to the Company's effective income tax rate is as follows:
|
|
Year Ended
December 31, 2016
|
|
|
Year Ended
December 31, 2015
|
|
Tax at statutory federal rate
|
|
35.0
|
%
|
|
35.0
|
%
|
State income taxes
|
|
4.2
|
|
|
(3.1)
|
|
Permanent difference, tax credits and other adjustments
|
|
-
|
|
|
-
|
|
Other
|
|
20.3
|
|
|
-
|
|
Change in valuation allowance
|
|
(55.3)
|
|
|
(35.0)
|
|
Effective income tax rate
|
|
4.2
|
%
|
|
(3.1)
|
%
|
For the year ended December 31, 2016, other includes amounts relating to deferred tax true-ups. The Company has not been notified of any potential tax audits by any federal, state or local tax authorities. The Company believes the statutes of limitations for the assessment of additional federal and state tax liabilities are generally closed for tax years prior to 2013. Interest and/or penalties related to underpayments of income taxes, or on uncertain tax positions, if applicable, would be included as a component of income tax expense (benefit). The accompanying financial statements do not include any amounts for penalties.
State income tax amounts for the year ended December 31, 2016, reflect a net benefit related to current year and prior year state tax true-ups. State income tax amounts for the year ended December 31, 2015, reflect a provision for a tax on capital imposed by the state jurisdictions.
The utilization of certain carryforwards and carrybacks is subject to limitations under U.S. federal income tax laws. Based on the Company's federal tax returns as filed and to be filed, the Company estimates it has federal NOL carryforwards and federal alternative minimum tax credit carryforwards ("AMT Credits") available to reduce future federal taxable income which would expire if unused, as indicated below.
The federal NOL carryforwards as of December 31, 2016 are as follows:
Tax Year
Originating
|
Tax Year
Expiring
|
|
Amount
|
|
|
|
|
|
|
2006
|
2026
|
|
$
|
500,000
|
|
2007
|
2027
|
|
|
12,700,000
|
|
2008
|
2028
|
|
|
4,600,000
|
|
2009
|
2029
|
|
|
2,400,000
|
|
2010
|
2030
|
|
|
1,900,000
|
|
2011
|
2031
|
|
|
1,900,000
|
|
2013
|
2033
|
|
|
3,700,000
|
|
2014
|
2034
|
|
|
4,900,000
|
|
2015
|
2035
|
|
|
4,200,000
|
|
2016
|
2036
|
|
|
2,600,000
|
|
|
|
|
$
|
39,400,000
|
|
AMT credits available, which are not subject to expiration, are as follows:
|
|
Amount
|
|
AMT Credits
|
|
$
|
21,000,000
|
|
Based on the Company's state tax returns as filed and to be filed, the Company estimates that it has state NOL carryforwards to reduce future state taxable income, which would expire if unused.
The state NOL carryforwards as of December 31, 2016 are as follows:
Tax Year
Originating
|
Tax Year
Expiring
|
|
Amount
|
|
|
|
|
|
|
2011
|
2031
|
|
$
|
1,800,000
|
|
2013
|
2033
|
|
|
2,700,000
|
|
2014
|
2034
|
|
|
4,200,000
|
|
2015
|
2035
|
|
|
4,100,000
|
|
2016
|
2036
|
|
|
2,800,000
|
|
|
|
|
$
|
15,600,000
|
|
The Company has a deferred tax asset arising primarily from NOL carryforwards and AMT credits as follows:
|
|
December 31, 2016
|
|
|
December 31, 2015
|
|
Net deferred tax asset
|
|
$
|
36,400,000
|
|
|
$
|
34,500,000
|
|
Valuation allowance
|
|
|
(36,400,000
|
)
|
|
|
(34,500,000
|
)
|
Net deferred tax asset recognized
|
|
$
|
-
|
|
|
$
|
-
|
|
A valuation allowance has been established for the entire deferred tax asset, as management has no basis to conclude that realization is more likely than not. Management does not believe that any significant changes in unrecognized income tax benefits are expected to occur over the next year.
Note 10 - Legal Proceedings
From time to time, the Company and its subsidiaries may be named as a defendant in various lawsuits or proceedings. At the current time except as set forth below, the Company is unaware of any legal proceedings pending against the Company. The Company intends to aggressively contest all litigation and contingencies, as well as pursue all sources for contributions to settlements.
The Company is a party to a lawsuit as follows:
AmBase v. 111 West 57
th
Sponsor LLC, et al.
In April 2016, the Company initiated a litigation in the New York State Supreme Court for New York County (the "NY Court"), Index No
.
652301/2016, against defendants 111 West 57th Sponsor LLC, 111 West 57th JDS LLC, PMG West 57th Street LLC, 111 West 57th Control LLC, 111 West 57th Developer LLC, Elliot Joseph, 111 West 57
th
KM Equity LLC, 111 West 57
th
KM Group LLC, Kevin Maloney, Matthew Phillips, Michael Stern, Ned White and Franklin R. Kaiman (collectively, "Defendants") and nominal defendant 111 West 57th Partners LLC. AmBase alleges in this action that the Defendants engaged in an unlawful scheme to dilute AmBase's equity interest in the joint real estate venture 111 West 57
th
Partners, to develop the 111 West 57
th
Street Property and to keep for themselves certain financing opportunities in breach of Defendants' contractual and fiduciary duties. The complaint also alleges that defendants have failed to honor the exercise of AmBase's equity put right. AmBase is seeking compensatory damages, as well as punitive damages and equitable relief including a declaration of the parties' rights, an accounting, and a constructive trust over distributions received by the Defendants. The complaint in this action has been filed and discovery is in the initial stages.
Note 11 – Commitments and Contingencies
Future minimum rental payments for office space under non-cancellable operating leases for the Company's executive office in Boca Raton, Florida as of December 31, 2016, were as follows (in thousands):
Year
|
|
Amount
|
|
2017
|
|
$
|
13
|
|
2018
|
|
|
14
|
|
2019
|
|
|
3
|
|
2020
|
|
|
-
|
|
2021
|
|
|
-
|
|
Thereafter
|
|
|
-
|
|
|
|
$
|
30
|
|
Rent expense for the period was as follows:
($ in thousands)
|
|
Year Ended December 31, 2016
|
|
|
Year Ended
December 31, 2015
|
|
Rent expense
|
|
$
|
12
|
|
|
$
|
12
|
|
Approximate square feet of leased office space
|
|
|
1,085
|
|
|
|
1,085
|
|