0001144204-13-053661.txt : 20131002 0001144204-13-053661.hdr.sgml : 20131002 20131002164536 ACCESSION NUMBER: 0001144204-13-053661 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20130927 ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Material Modifications to Rights of Security Holders ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Submission of Matters to a Vote of Security Holders ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20131002 DATE AS OF CHANGE: 20131002 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Trinity Place Holdings Inc. CENTRAL INDEX KEY: 0000724742 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-FAMILY CLOTHING STORES [5651] IRS NUMBER: 222465228 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-08546 FILM NUMBER: 131130806 BUSINESS ADDRESS: STREET 1: SYMS WAY CITY: SECAUCUS STATE: NJ ZIP: 07094 BUSINESS PHONE: 2019029600 MAIL ADDRESS: STREET 1: SYMS WAY CITY: SECAUCUS STATE: NJ ZIP: 07094 FORMER COMPANY: FORMER CONFORMED NAME: Trinity Place Holdings Inc DATE OF NAME CHANGE: 20120914 FORMER COMPANY: FORMER CONFORMED NAME: SYMS CORP DATE OF NAME CHANGE: 19920703 8-K 1 v356378_8-k.htm CURRENT REPORT

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): September 27, 2013

	Trinity Place Holdings Inc.
	(Exact name of registrant as specified in its charter)

Delaware	001-8546	22-2465228
(State or other jurisdiction	(Commission	(I.R.S. Employer
of incorporation)	File Number)	Identification No.)

One Syms Way, Secaucus, New Jersey		07094
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code:	(201) 902-9600


	Former name or former address, if changed since last report

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

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)

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

ITEM 3.02 Unregistered Sale of Equity Securities

On October 1, 2013, Trinity Place Holdings Inc. (the “Company”) entered into a stock purchase agreement (the “Purchase Agreement”) with Third Avenue Trust, on behalf of Third Avenue Real Estate Value Fund (“Third Avenue”) pursuant to which the Company sold to Third Avenue 3,369,444 shares of the Company’s common stock, par value $.01 per share (“Common Stock”), for $13,477,776.00, or $4.00 per share. Upon the effectiveness of the Amended Certificate (as such term is defined in Item 3.03 of this Current Report on Form 8-K (“Form 8-K”)), one share of Special Stock, par value $.01 (“Special Stock”), will be issued and sold to Third Avenue for the par value of such share payable in cash. The share of Special Stock will enable Third Avenue or its affiliated designee to elect one member of the Company’s Board of Directors (the “Board”). The sale of shares of the Common Stock and the share of Special Stock are made in private placement transactions exempt from registration pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended.

The Purchase Agreement contains customary representations, warranties and covenants of the Company and Third Avenue, and the Company has agreed to indemnify Third Avenue, subject to certain limitations, in the event of a breach of the Company’s representations or warranties or the failure of the Company to fulfill any covenants in the Purchase Agreement. The Purchase Agreement also requires the Company to file and maintain the effectiveness of a registration statement covering Third Avenue’s resale of the shares of Common Stock acquired under the Purchase Agreement.

As previously disclosed, under the Modified Second Amended Joint Chapter 11 Plan of Reorganization of Syms Corp. and its Subsidiaries, dated July 13, 2012 (the “Plan”), the proceeds from the sale of the Common Stock to Third Avenue can be used to fund operating expenses and other Company obligations in excess of the Company’s overhead and other reserves.

The above description of the terms and conditions of the Purchase Agreement does not purport to be complete and is qualified in its entirety by the full text of the Purchase Agreement, which is attached as Exhibit 10.1 to this Form 8-K.

ITEM 3.03 Material Modification to Rights of Securities Holders

Following approval by the Board on September 26, 2013, the holders of a majority of the outstanding shares of Common Stock and the holder of the one outstanding share of Series A Preferred Stock, par value $.01 (“Series A Preferred Stock”), executed written consents effective as of September 30, 2013 approving an amended and restated version of the Company’s Certificate of Incorporation (the “Amended Certificate”) to (i) increase the total number of authorized shares to 40,000,000, (ii) increase the total number of authorized shares of Common Stock to 39,999,997, (iii) authorize the issuance of the one share of Special Stock and (iv) provide that, from the issuance of the one share of Special Stock and until the Special Stock Ownership Threshold (as defined in the Amended Certificate) is no longer satisfied, one director of the five-member Board be elected by the holder of the share of Special Stock and the number of directors of the Board elected by the holders of Common Stock be reduced from three to two.

Written consents were executed and delivered to the Company by holders of 9,080,660 shares of our Common Stock (representing approximately 54.6% of the 16,630,554 shares of Common Stock outstanding as of the record date of September 26, 2013) and by the holder of the one share of Series A Preferred Stock outstanding.

The Amended Certificate will become effective upon its filing with the Secretary of State of Delaware. The Company currently anticipates that the Amended Certificate will be filed and take effect on or about November 4, 2013.

The above description of the Amended Certificate does not purport to be complete and is qualified in its entirety by the full text of the form of the Company’s Amended and Restated Certificate of Incorporation, which is attached as Exhibit 3.1 to this Form 8-K.

ITEM 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

On October 1, 2013, the Company entered into an employment agreement with Matthew Messinger (the “Employment Agreement”) to serve as President and Chief Executive Officer (“CEO”) of the Company effective immediately.

Matthew Messinger, 41, served as an executive for over eighteen years (until February 2013) at Forest City Ratner Companies (“FCRC”), a wholly owned subsidiary of Forest City Enterprises (“FCE”), where he most recently was Executive Vice President and Director of Investment Management. In this role, Mr. Messinger led the New York Investment Committee of FCRC and served on the Investment Committee and Executive Management Committee of FCE. Mr. Messinger has extensive development, asset management, finance and tax credit structuring experience across a wide range of asset classes including retail, hotel, residential, office, arena and professional sports teams. FCRC is a New York based diversified real estate development and management company. FCE is one of the largest publicly traded real estate development and ownership companies in the United States with a total enterprise value of approximately $13 billion. Mr. Messinger holds a Bachelor of Science degree from Wesleyan University.

The description of the Employment Agreement set forth below is qualified in its entirety by the full text of the Employment Agreement, which is attached as Exhibit 10.2 to this Form 8-K.

Under the terms of the Employment Agreement, Mr. Messinger is entitled to receive an initial annual base salary of $700,000. In addition, Mr. Messinger will be entitled to grants of restricted stock units (the “RSU Awards”) that the Company expects will result in Mr. Messinger holding approximately 1,500,000 shares of Common Stock after settlement of all of the RSU Awards and netting for taxes. The RSU Awards will be granted as follows:

a restricted stock unit award covering 250,000 shares of Common Stock upon the effectiveness of the Company’s filing of the Amended Certificate with the Secretary of State of Delaware;

a restricted stock unit award covering 476,190 shares of Common Stock on or prior to March 31, 2014, provided Mr. Messinger has delivered a favorable resolution regarding the payment or deferral of payment to Syms and Filene’s Class 3 (Convenience Claims) and the Syms Unsecured Creditors in Syms Class 4 General Unsecured Claims (each as defined in the Plan) and a credible plan with regard to the development, lease or sale of each of the Company’s Westbury and Paramus properties and any financing related to any such plan;

a restricted stock unit award covering 363,095 shares of Common Stock on or prior to March 31, 2014, provided Mr. Messinger has delivered a credible plan with regard to the development, lease or sale of the Company’s Trinity Place property and any financing related to any such plan;

a restricted stock unit award covering 363,095 shares of Common Stock on or prior to December 31, 2014, provided Mr. Messinger has delivered a favorable resolution regarding the payment or deferral of certain claims of Filene’s Class 4A and B General Unsecured (Short-Term) Claims and Filene’s Class 5A and B General Unsecured (Long-Term) Claims (each as defined in the Plan), a credible plan with regard to the development, lease or sale of the Company’s West Palm and Secaucus properties and any financing related to any such plan, and a progress report on the resolutions of the Trinity Place property;

a restricted stock unit award covering 363,095 shares of Common Stock on or prior to March 31, 2015; and

a restricted stock unit award covering 363,095 shares of Common Stock upon payments of the Initial Majority Shareholder Payment and the Subsequent Majority Shareholder Payment (each as defined in the Plan) on or prior to December 31, 2015.

The RSU Awards (other than the first RSU Award covering 250,000 shares which will be immediately vested) will vest in three equal annual installments and be subject to other conditions, including Mr. Messinger’s continued employment on the applicable vesting dates, as set forth in the Employment Agreement and the form of RSU Award agreement. The form of the RSU Award agreement is attached as Exhibit A to the Employment Agreement, which is attached as Exhibit 10.2 to this Form 8-K.

The Company has agreed under the Employment Agreement to reimburse Mr. Messinger’s reasonable legal fees and expenses associated with review and negotiation of the Employment Agreement up to $14,500.

In the event Mr. Messinger’s employment is terminated by the Company other than for Cause, death or Disability or if Mr. Messinger terminates his employment for Good Reason (as such terms are defined in the Employment Agreement), subject to his execution of a release of claims, he would be entitled to the following: (i) a lump sum payment of six months Base Salary for each full 12-month period employed under the Employment Agreement, subject to a minimum and a maximum amount of $350,000 and $1,400,000, respectively, (ii) acceleration of vesting of any unvested RSU Award and any other equity awards that have been granted as of the date of termination, (iii) to the extent Mr. Messinger has not been granted all the RSU Awards, the grant and immediate vesting of restricted stock units covering 363,095 shares (839,285) shares if such termination occurs prior to March 31, 2014) and (iv) payment of the monthly premium for COBRA continuation coverage under the Company’s health, dental and vision plans for eighteen (18) months. If such termination of employment occurs within 60 days prior to or within 12 months following a Change of Control (as that term is defined in the Employment Agreement), Mr. Messinger will also be entitled to the grant and immediate vesting of any RSU Awards that have not been granted as of the date of termination.

In the event of Mr. Messinger’s death or Disability, he would be entitled to acceleration of vesting of that portion of any outstanding RSU Awards granted prior to the date of termination that would have vested during the 12-month period immediately termination by reason of his death or disability.

The Employment Agreement also contains covenants addressing post-employment non-competition, non-solicitation of employees and customers provisions.

In connection with a future transaction or series of transactions whereby the Company its sells equity securities, the Company agrees to reserve a pool shares of Common Stock for the grant of equity awards to key employees of the Company, including Mr. Messinger. Upon the closing of such a transaction, Mr. Messinger will also be considered for a new equity award, which would take into the account the terms and conditions of such sale.

ITEM 5.03 Amendment to Articles of Incorporation or Bylaws

The information set forth under Item 3.03 of this Form 8-K regarding the Amended Certificate is incorporated by reference into this Item 5.03.

ITEM 5.07 Submission of Matters to Vote of Security Holders

The information set forth under Item 3.03 of this Form 8-K regarding the Amended Certificate is incorporated by reference into this Item 5.07.

ITEM 8.01 Other Events

On September 27 and 30, 2013, the Company made payments of the presently Allowed Claims (as defined in the Plan) to the holders of Syms and Filene’s Class 3 (Convenience Claims) and the Syms Unsecured Creditors in Syms Class 4 General Unsecured Claims (all as defined in the Plan), together with other payments required under the Plan, in an aggregate amount of approximately $30.2 million.

ITEM 9.01 Financial Statements and Exhibits

(d) Exhibits

Exhibit	Description
3.1	Form of Amended and Restated Articles of Incorporation
10.1	Stock Purchase Agreement, dated as of October 1, 2013, between Trinity Place Holdings Inc. and Third Avenue Trust, on behalf of Third Avenue Real Estate Value Fund
10.2	Employment Agreement, dated as of October 1, 2013, between Trinity Place Holdings Inc. and Matthew Messinger

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.

	By:		/s/ Richard G. Pyontek
			Name: Richard G. Pyontek
			Title: Chief Financial Officer

Dated: October 2, 2013

EXHIBIT INDEX

Exhibit	Description
3.1	Form of Amended and Restated Articles of Incorporation
10.1	Stock Purchase Agreement, dated as of October 1, 2013, between Trinity Place Holdings Inc. and Third Avenue Trust, on behalf of Third Avenue Real Estate Value Fund
10.2	Employment Agreement, dated as of October 1, 2013, between Trinity Place Holdings Inc. and Matthew Messinger

EX-3.1 2 v356378_ex3-1.htm EXHIBIT 3.1

EXHIBIT 3.1

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF

TRINITY PLACE HOLDINGS INC.

FIRST: The name of the corporation is Trinity Place Holdings Inc. (the “Corporation”).

SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, in the County of New Castle. The name of its registered agent at such address is Corporation Service Company.

THIRD: The nature and purpose of the business of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law (the “DGCL”).

FOURTH: The aggregate number of shares of capital stock that the Corporation shall have authority to issue is 40,000,000 which shall be divided into 39,999,997 shares of a class of Common Stock, par value $.01 per share (the “Common Stock”), two (2) shares of a class of Preferred Stock, par value $.01 per share (the “Preferred Stock”), and one (1) share of a class of Special Stock, par value $.01 per share (the “Special Stock”). The Preferred Stock shall be issued in two series, of which one such series shall be designated the Series A Preferred Stock, and the other such series shall be designated the Series B Preferred Stock. The Series A Preferred Stock shall consist of one (1) authorized share, and the Series B Preferred Stock shall consist of one (1) authorized share. The Series B Preferred Stock shall be held by the Escrow Agent pursuant to the terms of the Escrow Agreement as security for the full payment to the Redeemed Stockholder on or before October 16, 2016 of the Initial Majority Shareholder Payment and Subsequent Majority Shareholder Payment.

The following is a statement of the designations and the powers, privileges and rights, and the qualifications, limitations and restrictions thereof in respect of each class of capital stock of the Corporation:

A. COMMON STOCK

1. General. The Common Stock shall be subject to the express terms of the Special Stock, Preferred Stock and any series of Preferred Stock. Until such time as (i) there has been a General Unsecured Claim Satisfaction and (ii) the Redeemed Stockholder is paid the Initial Majority Shareholder Payment and the Subsequent Majority Shareholder Payment, the Corporation shall not (whether by merger, consolidation or otherwise), directly or indirectly (through any Subsidiary or otherwise), (A) declare or pay any dividends on, or make or pay any distributions to the holders of, the Common Stock, or (B) repurchase or redeem any shares of Common Stock, in each case other than in accordance with the Plan, or (C) without the written consent of the Redeemed Stockholder, amend, alter or repeal (i) this Certificate of Incorporation or the Corporation’s by-laws if such amendment would amend, alter or repeal any rights, privileges or terms applicable to the Series B Preferred Stock, or (ii) Section B8(iv) of Article Fourth if such amendment would amend, alter or repeal any rights, privileges or terms applicable to the Redeemed Stockholder.

2. Certain Amendments. Except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation that relates solely to the alteration or change of the powers, preferences, rights or other terms of one or more outstanding series of Preferred Stock (or of Special Stock, as applicable) if the holders of such affected series (or the Special Stock, as applicable) are entitled, either separately or, in the case of one or more series of Preferred Stock, together with the holders of one or more other series of Preferred Stock, to vote thereon as a separate class pursuant to this Certificate of Incorporation or pursuant to the DGCL as currently in effect or as the same may hereafter be amended.

B. PREFERRED STOCK

1. No Dividends. No dividends or distributions may be declared, paid or made on the Series A Preferred Stock or Series B Preferred Stock.

2. Liquidation Rights. In the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary, the holder of the Series A Preferred Stock and the holder of the Series B Preferred Stock shall be entitled to receive for its share of Series A Preferred Stock or Series B Preferred Stock, as applicable, out of the assets of the Corporation or proceeds thereof (whether capital or surplus) available for distribution to stockholders of the Corporation, and after satisfaction of all liabilities and obligations to creditors of the Corporation, on par with each share of Parity Stock but before any distribution of such assets or proceeds is made to or set aside for the holders of Junior Stock, an amount equal to the par value of such share of Series A Preferred Stock or such share of Series B Preferred Stock, as applicable. To the extent such amount is paid in full to the holder of the Series A Preferred Stock, the holder of the Series B Preferred Stock and all holders of Parity Stock, the holders of Junior Stock of the Corporation shall be entitled to receive all remaining assets of the Corporation (or proceeds thereof) according to their respective rights and preferences.

3. Redemption. The Series A Preferred Stock shall not be redeemed until such time as the General Unsecured Claim Satisfaction has occurred. The Series A Preferred Stock shall, subject to lawfully available funds, be automatically redeemed at such time as the General Unsecured Claim Satisfaction has occurred, at a per share redemption price equal to the par value of one share of Series A Preferred Stock. The Series B Preferred Stock shall not be redeemed until such time as the Redeemed Stockholder is paid the Initial Majority Shareholder Payment and the Subsequent Majority Shareholder Payment. The Series B Preferred Stock shall, subject to lawfully available funds, be automatically redeemed at such time as the Redeemed Stockholder is paid the Initial Majority Shareholder Payment and the Subsequent Majority Shareholder Payment, at a per share redemption price equal to the par value of one share of Series B Preferred Stock.

4. Voting Rights. Except as expressly provided in this Certificate of Incorporation or as otherwise required by applicable law, the holder of the Series A Preferred Stock and the holder of the Series B Preferred Stock shall not be entitled to vote on any matters submitted to a vote of stockholders of the Corporation.

5. Special Voting Rights of the Holder of the Series A Preferred Stock. For so long as the Series A Preferred Stock is outstanding, without the affirmative vote of the holder of the Series A Preferred Stock, the Corporation shall not (whether by merger, consolidation or otherwise) take any of the following actions, directly or indirectly (through any Subsidiary or otherwise):

(i) use the amounts reserved in each of the Sub-Category Expense Reserves to fund any expenses designated to be paid from another Sub-Category Expense Reserve, except that, (y) by majority vote of the Board of Directors, amounts in the Corporate Overhead Reserve may be reallocated to the Carry Cost/Repair/TI Reserve and (x) by majority vote of the Board of Directors, which shall include the affirmative vote of the Independent Director, amounts in the Corporate Overhead Reserve may be reallocated to the Trinity Carry Reserve;

(ii) distribute any proceeds realized from the JV Interest Sale (net of transaction related expenses) other than as follows: not less than 60% of the balance of net proceeds will be included as Excess Cash and shall be distributed in accordance with the Plan Waterfall, and the remaining 40% or lesser amount of the balance of such net proceeds shall be invested in full in the Trinity Joint Venture;

(iii) distribute any funds received from any Trinity Mortgage other than as follows: first, the Trinity Carry Reserve Amount to the extent that an amount equal to the Trinity Carry Cost Reserve Amount has not been distributed as Excess Cash from a JV Interest Sale, which funds shall become Excess Cash and shall be distributed in accordance with the Plan Waterfall; and thereafter the balance of borrowed funds shall remain in the Trinity Joint Venture and will be limited to be used for pre-construction costs, direct development and construction costs, corporate overhead and carry costs for the Trinity Property, and taxes, licenses and fees for the Trinity Property, as applicable, to be determined at the Board of Directors’ discretion;

(iv) for so long as the Board of Directors is constituted pursuant to Section 2 of Article Fifth, sell or otherwise dispose of a majority interest in the Trinity Joint Venture to a non-Insider unless there has been (or will be as a result of such sale) a General Unsecured Claim Satisfaction;

(v) increase the aggregate cap for any Sub-Category Expense Reserve;

(vi) take any action that requires the consent of the holder of the Series A Preferred Stock under Article VII.F. of the Plan (Capital Raising And Use Of Cash Proceeds) or Article VII.G. of the Plan (Funding of Reserves);

(vii) increase the fees or other compensation payable to directors in excess of that provided in the Budget;

(viii) except as specifically provided for in the Plan, replenish the Operating Reserves, once fully funded, using Net Proceeds;

(ix) amend, alter or repeal any provision of this Certificate of Incorporation or the Corporation’s by-laws;

(x) establish any committee of the Board of Directors that does not include the Series A Directors then in office;

(xi) take any action that would result in Reorganized Filene’s ceasing to be a wholly-owned subsidiary of the Corporation other than as reasonably necessary to maximize the value of the intellectual property or other assets of Reorganized Filene’s;

(xii) if the Syms and Filene’s Class 3 (Convenience Claims) and the Syms Unsecured Creditors in Syms Class 4 General Unsecured Claims are not paid their full distributions under the Plan by October 1, 2013, sell or otherwise dispose of any unsold Near Term Properties; provided that such vote of the holder of the Series A Preferred Stock shall not be required if such sale or disposition is made in accordance with Section B7(i) of this Article Fourth;

(xiii) if the Filene’s Class 4A and B General Unsecured (Short-Term) Claims and Filene’s Class 5A and B General Unsecured (Long-Term) Claims are not paid their full distributions under the Plan by October 1, 2014, sell or otherwise dispose of any unsold Medium Term Properties and Near Term Properties, provided that such deadline may be extended up to April 1, 2015 (A) with the consent of the holder of the Series A Preferred Stock or (B) if the Independent Director concludes that the Corporation is proceeding in good faith to lease and sell the Medium Term Properties and Near Term Properties such that additional time is appropriate because the Corporation still has a reasonable prospect of leasing and selling the Medium Term Properties and Near Term Properties within any extension period; provided that such vote of the holder of the Series A Preferred Stock shall not be required if such sale or disposition is made in accordance with Section B7(ii) of this Article Fourth;

(xiv) dissolve, or amend, alter or repeal the powers and authority of the Series A Committee, remove any Series A Director then in office from such committee, or cause any director other than the Series A Directors to be appointed thereto; and

(xv) issue, sell or grant any Common Stock or any Common Stock Equivalent; provided, that the foregoing shall not apply to (i) the issuance, sale or grant of Common Stock or any Common Stock Equivalent to employees or directors of the Corporation in connection with or as compensation for the performance of services to the Corporation and (ii) the issuance or sale of Common Stock or any Common Stock Equivalent for consideration that consists exclusively of cash.

6. Special Voting Rights of the Series A Director For so long as the Board of Directors is constituted pursuant to Section 2 of Article Fifth:

(i) without the affirmative vote of the Series A Director, the Corporation shall not (whether by merger, consolidation or otherwise), directly or indirectly (through any Subsidiary or otherwise), enter into any transaction with an Insider or an Affiliate (other than transactions between the Corporation and any of its direct or indirect Subsidiaries, which transactions have also been approved by the Series A Committee); and

(ii) at the end of the two year period commencing on the Effective Date, the sum of $500,000, to be funded from Net Proceeds realized by the Corporation from the sale of assets, settlements or any other sources, before such proceeds become Excess Cash, shall be set aside in an Emergency Fund Reserve to be used, by the Corporation with the consent of the Series A Director, for operating and other expenses. The Series A Director may at any time reduce the amount of funds in the Emergency Fund Reserve and make such reduced funds Excess Cash.

7. Disposition of Medium Term Properties and Near Term Properties.

(i) If the Syms and Filene’s Class 3 (Convenience Claims) and the Syms Unsecured Creditors in Syms Class 4 General Unsecured Claims are not paid their full distributions under the Plan by October 1, 2013, the Series A Committee shall have the exclusive authority from that date forward to sell the Near Term Properties and to direct the sale process for any unsold Near Term Properties, whether by auction or otherwise, which sale process shall be done in a commercially reasonable manner consistent with maximizing the value of the Near Term Properties; and

(ii) If the Filene’s Class 4A and B General Unsecured (Short-Term) Claims and Filene’s Class 5A and B General Unsecured (Long-Term) Claims are not paid their full distributions under the Plan by October 1, 2014, the Series A Committee shall have the exclusive authority from that date forward to sell the Medium Term Properties and Near Term Properties and to direct the sale process for any unsold Medium Term Properties and Near Term Properties, whether by auction or otherwise, which sale process shall be done in a commercially reasonable manner consistent with maximizing the value of the Medium Term Properties and Near Term Properties, provided that such deadline may be extended up to April 1, 2015 (A) with the consent of the holder of the Series A Preferred Stock or (B) if the Independent Director concludes that the Corporation is proceeding in good faith to lease and sell the Medium Term Properties and Near Term Properties such that additional time is appropriate because the Corporation still has a reasonable prospect of leasing and selling the Medium Term Properties and Near Term Properties within any extension period.

8. Certain Covenants.

(i) In furtherance and not in limitation of the Corporation’s obligations to comply with the terms of the Plan and the other provisions of this Certificate of Incorporation, the Corporation shall comply with the provisions of Article IV of the Plan (Plan Waterfall), Article VII. F. of the Plan (Capital Raising And Use Of Cash Proceeds), Article VII. G.3. of the Plan (Operating Reserves), and Article VIII of the Plan (Provisions Governing Distributions).

(ii) The amount allocated in the second year of the Budget for the Corporate Overhead Reserve and the Pension Reserve shall be funded in the last quarter of the first year, unless the Board of Directors determines that the delay of such funding would provide the Corporation with inadequate liquidity to operate in accordance with the Budget.

(iii) On the two-year anniversary of the Effective Date, the Board of Directors shall review and revise the Sub-Category Reserve amounts set forth in the Plan for the third and fourth year periods after the Effective Date, provided that any increase in the aggregate amount of the cap increases for the Sub-Category Reserves shall not exceed the amounts set forth in Sections VII.G.3(2) and (3) of the Plan without the consent of the holder of the Series A Preferred Stock except that, (i) by majority vote of the Board of Directors, amounts in the Corporate Overhead Reserve may be reallocated to the Carry Cost/Repair/TI Reserve and (ii) by majority vote of the Board of Directors, which shall include the affirmative vote of the Independent Director, amounts in the Corporate Overhead Reserve may be reallocated to the Trinity Carry Reserve.

(iv) For so long as the Board of Directors is constituted pursuant to Section 2 or Section 3(iii) of Article Fifth, the Corporation may only sell or otherwise dispose of a majority interest in the Trinity Joint Venture to a non-Insider if (x) there has been (or will be as a result of such sale) a General Unsecured Claim Satisfaction and to the extent a General Unsecured Claim Satisfaction has occurred, the Redeemed Stockholder has received full payment of its Plan distributions, or (y) the holder of the Series A Preferred Stock or to the extent the General Unsecured Claim Satisfaction has occurred, Marcy Syms (or her personal representatives in the event of her death or incapacity) consents.

9. Record Holders. To the fullest extent permitted by applicable law, the Corporation may deem and treat the record holder of the share of Series A Preferred Stock and the record holder of the share of Series B Preferred Stock as the applicable true and lawful owner thereof for all purposes, and the Corporation shall not be affected by any notice to the contrary.

10. Notices. All notices or communications in respect of the Series A Preferred Stock or Series B Preferred Stock (with a copy to the Redeemed Stockholder) shall be sufficiently given if given in writing and delivered in person or by first class mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of Incorporation or the Corporation’s by-laws or by applicable law or regulation. Notwithstanding the foregoing, if the Series A Preferred Stock or Series B Preferred Stock is issued in book-entry form through The Depository Trust Corporation or any similar facility, such notices may be given to the holder of the Series A Preferred Stock or the holder of the Series B Preferred Stock, as applicable, in any manner permitted by such facility.

C. SPECIAL STOCK

1. No Dividends. No dividends or distributions may be declared, paid or made on the Special Stock.

2. Liquidation Rights. The Special Stock shall rank junior to the Series A Preferred Stock and Series B Preferred Stock, and senior to the Common Stock, as to distributions of assets on any liquidation, dissolution or winding up of the Corporation. In the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary, the holder of the Special Stock shall be entitled to receive for its share of stock, out of the assets of the Corporation or proceeds thereof (whether capital or surplus) available for distribution to stockholders of the Corporation, an amount equal to the par value of such share.

3. Redemption. The Special Stock shall, subject to lawfully available funds, be automatically redeemed at such time as the Special Stock Ownership Threshold is no longer satisfied, at a per share redemption price equal to the par value of one share of Special Stock.

4. Voting Rights. Except as expressly provided in this Certificate of Incorporation or as otherwise required by applicable law, the holder of the Special Stock shall not be entitled to vote such share on any matters submitted to a vote of stockholders of the Corporation. For so long as the Special Stock is outstanding, without the affirmative vote of the holder of the Special Stock, the Corporation shall not (whether by merger, consolidation or otherwise) amend, alter or repeal any provision of this Certificate of Incorporation or the Corporation’s by-laws in a manner that alters or changes the powers, preferences, or special rights of the Special Stock so as to the affect the Special Stock adversely.

5. Record Holder. To the fullest extent permitted by applicable law, the Corporation may deem and treat the record holder of the share of Special Stock as the applicable true and lawful owner thereof for all purposes, and the Corporation shall not be affected by any notice to the contrary.

6. Notices. All notices or communications in respect of the Special Stock shall be sufficiently given if given in writing and delivered in person or by first class mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of Incorporation or the Corporation’s by-laws or by applicable law or regulation. Notwithstanding the foregoing, if the Special Stock is issued in book-entry form through The Depository Trust Corporation or any similar facility, such notices may be given to the holder of the Special Stock in any manner permitted by such facility.

FIFTH: The provisions of this Article (including the provisions relating to the election, designation and appointment of directors and the terms of directors) have been adopted pursuant to the final clause of the first sentence, and the second sentence, of Section 141(a) of the DGCL. Except as otherwise provided in this Certificate of Incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors elected, appointed and/or designated in the manner set forth in this Article. Except as otherwise provided in this Certificate of Incorporation, the provisions of the DGCL that otherwise apply to directors or a board of directors shall apply to the directors of the Corporation and the Board of Directors.

1. Staggered Board. Upon the effectiveness of the amendment or restatement of this Certificate of Incorporation first inserting this sentence (such time, the “Effective Time”), the Board of Directors shall be divided into two classes, as nearly equal in number as possible, designated Class I and Class II. Class I directors shall initially serve until the first annual meeting of stockholders following the Effective Time, and Class II directors shall initially serve until the second annual meeting of stockholders following the Effective Time, in each case subject to automatic termination of directorships as set forth in this Article. Commencing with the first annual meeting of stockholders following the Effective Time, directors of each class the term of which shall then expire shall be elected to hold office for a term ending at the second annual meeting following such persons’ election and until the election and qualification of their respective successors in office, subject to automatic termination of directorships as set forth in this Article. Commencing with the Effective Time, (i) the initial Class I directors shall be the Series A Director and the Independent Director, and (ii) the initial Class II directors shall be the EC Directors. The Special Stock Director shall be a Class II director. In case of any increase or decrease, from time to time, in the number of directors, the number of directors in each class shall be apportioned as nearly equal as possible. Any director may be removed from office at any time, with or without cause, by the affirmative vote of the holders of a majority in voting power of the shares of capital stock of the Corporation entitled to elect such director.

2. Board of Directors – Generally. Except as set forth in Section 3 of this Article below, for so long as the Series A Preferred Stock is outstanding, the Board of Directors shall be comprised of five directors, as follows:

(i) two directors who (A) as of the effective time of the amendment or restatement of the Certificate of Incorporation first inserting this amended clause (A), are the persons serving as EC Directors at such effective time; and (B) following the Effective Date shall be elected by the holders of Common Stock pursuant to the Corporation’s by-laws (the “EC Directors”); provided, however, that on and after the first date that the Special Stock Ownership Threshold is no longer satisfied, the number of EC Directors shall be increased from two to three EC Directors, with each EC Director elected in accordance with the foregoing provisions of this subparagraph (i)(B);

(ii) one director who shall be (A) designated and appointed to the Board of Directors on the Effective Date by the Creditors’ Committee and (B) following the Effective Date shall be elected by the holder of the Series A Preferred Stock, voting as a separate class to the exclusion of the holders of Common Stock, the Special Stock and any other Preferred Stock (such director, the “Series A Director”);

(iii) from and after the issuance of Special Stock and until the first date that the Special Stock Ownership Threshold is no longer satisfied, one director who shall be elected by the holder of the Special Stock, voting as a separate class to the exclusion of the holder of Common Stock and any Preferred Stock (such director, the “Special Stock Director”); and

(iv) one director who shall be (A) designated and appointed to the Board of Directors on the Effective Date by the mutual agreement of the Equity Committee and the Creditors’ Committee and (B) following the Effective Date, shall be nominated by the EC Directors with the reasonable consent of the holder of the Series A Preferred Stock and, following such nomination, shall be elected by the holder of the Series A Preferred Stock, voting as a separate class to the exclusion of the holders of Common Stock, the Special Stock and any other Preferred Stock (the “Independent Director”), provided that such director shall (I) meet the requirements of an independent director under the standards of the NASDAQ Stock Market and (II) not be an Affiliate of (v) any holder of the Special Stock, (w) any Unsecured Creditor that holds a Claim in an amount that is greater than $50,000, (x) any holder of two percent or more of the Corporation’s Common Stock, (y) any Backstop Party or (z) any person or entity included in the definition of the Redeemed Stockholder.

Notwithstanding anything herein to the contrary, on the first date that the Special Stock Ownership Threshold is no longer satisfied, the term of the Special Stock Director shall automatically terminate, the person formerly holding such directorship shall cease to be a director of the Corporation and the size of the Board will be automatically reduced by one directorship. Immediately following such reduction, the size of the Board of Directors shall automatically be increased by one directorship, which shall be an EC Director.

3. Board of Directors - Contingencies.

(i) If there has not been a General Unsecured Claim Satisfaction by October 1, 2016, then, effective on such date, (A) the term(s) of the EC Director(s) then in office, except the oldest EC Director in age then in office, shall automatically terminate (provided that if there is only one EC Director in office on such date, then such director’s term shall not terminate), the term of the Independent Director and the term of the Special Stock Director shall automatically terminate, and the persons formerly holding such directorships shall cease to be directors of the Corporation, all without the need for any action by the Board of Directors or the stockholders of the Corporation, (B) immediately following such termination of directorships and the resultant automatic reduction in the size of the Board of Directors to two (2) directors (the one EC Director and the Series A Director), the size of the Board of Directors shall automatically be increased so that the Board of Directors is comprised of a total of nine (9) authorized directorships with the seven (7) directorships created thereby to be filled (and thereafter elected) solely by the holder of the Series A Preferred Stock, voting as a separate class to the exclusion of the holders of Common Stock, the Special Stock and any other Preferred Stock (such additional directors shall also each be a Series A Director, and together will be “Series A Directors”). Thereafter, upon the occurrence of a General Unsecured Claim Satisfaction after October 1, 2016, the Corporation shall immediately redeem the Series A Preferred Stock, the terms of all Series A Directors shall automatically terminate, the persons holding such directorships immediately prior to such termination shall cease to be directors of the Corporation and the size of the Board of Directors shall be automatically reduced to one (1) authorized directorship. Subject to Section 3(ii) of this Article below, following the redemption of the Series A Preferred Stock (whether before or after October 1, 2016), (a) all directors shall be elected exclusively by the holders of Common Stock, and (b) notwithstanding anything in this Certificate of Incorporation or the Corporation’s by-laws to the contrary, the total number of directors comprising the Board of Directors may be fixed from time to time solely by resolution of the Board of Directors, and vacancies and newly created directorships may be filled solely by a majority of the directors then in office, even if less than a quorum.

(ii) If the Series A Preferred Stock has been redeemed but the Redeemed Stockholder has not received the Initial Majority Shareholder Payment and the Subsequent Majority Shareholder Payment by October 16, 2016, then, effective on such date, (A) the terms of all of the directors then in office except for the oldest EC Director in age shall automatically terminate and the persons formerly holding such directorships shall cease to be directors of the Corporation, all without the need for any action by the Board of Directors or the stockholders of the Corporation, (B) immediately following such termination of directorships and the resultant automatic reduction in the size of the Board of Directors to one (1) director, the size of the Board of Directors shall automatically be increased so that the Board of Directors is comprised of a total of four (4) authorized directorships with the three (3) directorships created thereby to be filled solely by the holder of the Series B Preferred Stock, voting as a separate class to the exclusion of the holders of Common Stock, the Special Stock and any other Preferred Stock (such additional directors, the “Series B Directors”). Thereafter, upon the payment of the Initial Majority Shareholder Payment and the Subsequent Majority Shareholder Payment in full after October 16, 2016, the Corporation shall redeem the Series B Preferred Stock, the terms of all Series B Directors shall automatically terminate, the persons holding such directorships immediately prior to such termination shall cease to be directors of the Corporation and the size of the Board of Directors shall be automatically reduced to one (1) authorized directorship. Following the redemption of the Series B Preferred Stock after the prior redemption of the Series A Preferred Stock (whether before or after October 16, 2016), (a) all directors shall be elected exclusively by the holders of Common Stock, and (b) notwithstanding anything in this Certificate of Incorporation or the Corporation’s by-laws to the contrary, the total number of directors comprising the Board of Directors may be fixed from time to time solely by resolution of the Board of Directors, and vacancies and newly created directorships may be filled solely by a majority of the directors then in office, even if less than a quorum.

(iii) If the Series A Preferred Stock has been redeemed on or before October 1, 2016 (and subject to Section 3(ii) of this Article above) then, effective on such date, the terms of the Series A Director and the Independent Director shall automatically terminate, the persons formerly holding those directorships shall cease to be directors of the Corporation, and the size of the Board will be automatically reduced to three (3) (subject to the right of the Board of Directors to change such number as set forth in this Article), all without the need for any action by the Board of Directors or the stockholders of the Corporation.

4. Vacancies. In the event (i) a Series A Director is removed, resigns or is unable to serve as a member of the Board of Directors, the holder of the Series A Preferred Stock, voting as a separate class to the exclusion of the holders of Common Stock, the Special Stock and all other series of Preferred Stock, shall have the sole right to fill such vacancy; (ii) the Independent Director is removed, resigns or is unable to serve as a member of the Board of Directors prior to the first annual meeting following the Effective Date, the Board of Directors may fill such vacancy; provided that the Series A Committee and the EC Directors shall mutually agree on an Independent Director to fill such vacancy who (I) meets the requirements of an independent director under the standards of the NASDAQ Stock Market and (II) is not an Affiliate of (v) any holder of the Special Stock, (w) any Unsecured Creditor that holds a Claim in an amount that is greater than $50,000, (x) any holder of two percent or more of the Corporation’s Common Stock, (y) any Backstop Party or (z) any person or entity included in the definition of the Redeemed Stockholder; (iii) an EC Director is removed, resigns or is unable to serve as a member of the Board of Directors, or there is an increase in the number of EC Directors (including pursuant to Section 2(i) of this Article Fifth), a majority of the remaining EC Director(s) then in office, if any, shall have the sole right to fill such vacancy (and if there are no remaining EC Directors, such vacancy shall be filled in the manner set forth in the Corporation’s by-laws); (iv) any director elected by the holder of the Series B Preferred Stock is removed, resigns or is unable to serve as a member of the Board of Directors, the holder of the Series B Preferred Stock, voting as a separate class to the exclusion of the holders of Common Stock, the Special Stock and all other series of Preferred Stock, shall have the sole right to fill such vacancy; or (v) any director elected by the holder of the Special Stock is removed, resigns or is unable to serve as a member of the Board of Directors, the holder of the Special Stock, voting as a separate class to the exclusion of the holders of Common Stock and Preferred Stock, shall have the sole right to fill such vacancy.

5. Series A Committee. The Series A Committee, which shall consist of the Series A Directors in office at any given time, is hereby established to take and, to the fullest extent permitted by applicable law, shall have the sole power and authority to take, the actions set forth in Sections B6(i) and B7 of Article Fourth and Section 4 of Article Fifth, which Sections provide for such actions to be taken by the Series A Committee, including the taking of any actions necessary for or incidental to the taking of the actions set forth in Sections B6(i) and B7 of Article Fourth and Section 4 of Article Fifth. The vote of a majority of the members of the Series A Committee present at any meeting of the Series A Committee at which there is a quorum shall be the act of the Series A Committee. In the event that the Board of Directors is comprised as set forth in Section 3(i) of this Article, the Board of Directors, by resolution adopted by a majority of the directors then in office, may elect to dissolve the Series A Committee and repeal the rules and procedures for the conduct of its business, provided, that any such dissolution of the Series A Committee and repeal of its rules and procedures must be approved by a majority of the Series A Directors then in office.

6. Other Committees. For so long as the Board of Directors is constituted pursuant to Section 2 of this Article, and to the fullest extent permitted by law, (i) each committee of the Board of Directors other than the Series A Committee shall have five (5) members, (ii) the presence of four (4) members shall be necessary and sufficient to constitute a quorum for the transaction of business by such committee, and (iii) the vote of a majority of the members of such committee present at any meeting at which there is a quorum shall be the act of that committee. If the Board of Directors is constituted pursuant to Section 3 of this Article, unless the Board of Directors provides otherwise and to the fullest extent permitted by law, (i) each committee of the Board of Directors other than the Series A Committee shall consist of one or more of the directors of the Corporation, (ii) at all meetings of such committee, a majority of the members of the committee then in office shall constitute a quorum for the transaction of business, and (iii) the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Committees of the Board of Directors (other than the Series A Committee) may not create one or more subcommittees of such committee. Notwithstanding the foregoing or anything to the contrary herein, for so long as there is a Special Stock directorship, the Special Stock Director shall have the right to be a member of each committee of the Board of Directors (other than the Series A Committee).

SIXTH: The name and mailing address of the incorporator(s) of the Corporation are:

Delaware Corporation Organizers, Inc.
P.O. Box 1347

Wilmington, DE 19899

SEVENTH: Unless and except to the extent that the by-laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.

EIGHTH: To the fullest extent permitted by law, a director of the Corporation shall not be personally liable to the Corporation or to its stockholders for monetary damages for any breach of fiduciary duty as a director. No amendment to, modification of or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment, modification or repeal.

NINTH: (i) The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise, nonprofit entity or other entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in paragraph (iii) of this Article with respect to an action brought by a Covered Person to recover an unpaid indemnification or advancement claim to which such Covered Person is entitled, the Corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the Corporation.

(ii) The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition; provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article or otherwise.

(iii) If a claim for indemnification under this Article (following the final disposition of such proceeding) is not paid in full within sixty days after the Corporation has received a claim therefor by the Covered Person, or if a claim for any advancement of expenses under this Article is not paid in full within thirty days after the Corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim. If successful in whole or in part, the Covered Person shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action, the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

(iv) The rights conferred on any Covered Person by this Article shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, the Corporation’s by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

(v) The Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise, nonprofit entity or other entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise, non-profit entity or other entity.

(vi) Any repeal or modification of the provisions of this Article shall not adversely affect any right or protection hereunder of any Covered Person in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to the time of such repeal or modification.

(vii) This Article shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

TENTH: In furtherance of, and not in limitation of, the powers conferred by statute, subject to any express restrictions contained in this Certificate of Incorporation, the Board of Directors is expressly authorized to adopt, amend or repeal the Corporation’s by-laws or adopt new by-laws without any action on the part of the stockholders; provided that any by-law adopted or amended by the Board of Directors, and any powers thereby conferred, may be amended, altered or repealed by the stockholders.

ELEVENTH: The Corporation shall have the right, subject to any express provisions or restrictions contained in the Certificate of Incorporation or the Corporation’s by-laws, from time to time, to amend the Certificate of Incorporation or any provision thereof in any manner now or hereafter provided by law, and all rights and powers of any kind conferred upon a director or stockholder of the Corporation by the Certificate of Incorporation or any amendment thereof are conferred subject to such right.

TWELFTH: Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, the Certificate of Incorporation or the Corporation’s by-laws or (iv) any action asserting a claim governed by the internal affairs doctrine, in each case subject to said Court of Chancery of the State of Delaware having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article.

THIRTEENTH: As used herein, the following defined terms shall have the meanings set forth below, and the following rules of construction shall apply:

A. DEFINED TERMS

Capitalized terms otherwise not defined in the Certificate of Incorporation have the meanings as defined in the Plan.

“Affiliate” means, with respect to any Person, as defined below, any other Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with such Person. For purposes of this Certificate of Incorporation, “control” shall mean, as to any Person, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise (and the terms “controlled by” and “under common control with” shall have correlative meanings).

“Backstop Parties” has the meaning set forth in the Plan.

“Board of Directors” shall mean the board of directors of the Corporation.

“Budget” has the meaning set forth in the Plan.

“Business Day” shall mean a day that is a Monday, Tuesday, Wednesday, Thursday or Friday and is not a day on which banking institutions in New York, New York generally are authorized or obligated by law, regulation or executive order to close.

“Claim” has the meaning set forth in the Plan.

“Capital Stock” shall mean any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (in each case however designated) stock issued by the Corporation.

“Carry Cost/Repair/TI Reserve” has the meaning set forth in the Plan.

“Certificate of Incorporation” shall mean this Certificate of Incorporation of the Corporation, as amended from time to time.

“Common Stock” shall mean the common stock, par value $0.01 per share, of the Corporation.

“Common Stock Equivalent” means an option, warrant, right or other security of the Corporation that is, directly or indirectly, exercisable, convertible or exchangeable for or into Common Stock or any other Common Stock Equivalent at any time.

“Corporate Overhead Reserve” has the meaning set forth in the Plan.

“Corporation” shall mean Trinity Place Holdings Inc., a corporation organized and existing under the laws of the State of Delaware, and any successor thereof.

“Creditors’ Committee” has the meaning set forth in the Plan.

“Effective Date” means the date the Plan becomes effective in accordance with its terms.

“Emergency Reserve Fund” has the meaning set forth in the Plan.

"Escrow Agreement" shall mean an escrow and pledge agreement by and among the escrow agent therein named (“Escrow Agent”), the Corporation, and the Redeemed Stockholder pursuant to which the Escrow Agent shall hold in escrow the Series B Preferred Stock pledged by the Corporation and related stock assignment executed in blank as security for the full payment of all distributions due the Redeemed Stockholder under the Plan, and may deliver the Series B Preferred Stock and stock assignment to the Redeemed Stockholder if full payment of the Initial Majority Shareholder Payment (as defined below) and Subsequent Majority Shareholder Payment (as defined below) has not been made on or before October 16, 2016.

“Equity Committee” has the meaning set forth in the Plan.

“Excess Cash” has the meaning set forth in the Plan.

“Filene’s Unsecured Creditors” means the holders of Filene’s General Unsecured (Short-Term) Claims and Filene’s General Unsecured (Long-Term) Claims, each as defined in the Plan.

“Filene’s Class 3 (Convenience Claims)” has the meaning set forth in the Plan.

“Filene’s Class 4A and B General Unsecured (Short-Term) Claims” has the meaning set forth in the Plan.

“Filene’s Class 5A and B General Unsecured (Long-Term) Claims” has the meaning set forth in the Plan.

“General Unsecured Claim Satisfaction” has the meaning set forth in the Plan.

“Initial Majority Shareholder Payment” has the meaning set forth in the Plan.

“Insider” has the meaning set forth in 11 U.S.C. §101(31).

“Junior Stock” shall mean the Common Stock and any other class or series of Capital Stock that ranks junior to the Series A Preferred Stock and Series B Preferred Stock as to the distribution of assets on any liquidation, dissolution or winding up of the Corporation, or both.

“JV Interest Sale” has the meaning set forth in the Plan.

“Medium Term Properties” means the following properties of the Corporation:

(i) 695 Merrick Avenue, Westbury, NY 11590;

(ii) 330 Route 17 North, Paramus, NJ 07652; and

(iii) 295 Tarrytown Road, Elmsford, NY 10523.

“Near Term Properties” means the following properties of the Corporation:

(i) 4400 Forest Hill Blvd, West Palm Beach, FL 33406;

(ii) 1340 Swedesford Rd, Berwyn, PA 19312;

(iii) 4615 NW 77th Avenue, Miami, FL 33166;

(iv) 21700 Telegraph Road, Southfield, MI 48034;

(v) 5775 Jimmy Carter Boulevard, Norcross, GA 30071;

(vi) 10770 Westheimer, Houston, TX 77042;

(vii) 652 Commerce Drive, Fairfield, CT 06825;

(viii) 1803 Roswell Road, Marietta, GA 30062;

(ix) 280 West North Avenue, Addison, IL 60101;

(x) 1865 E. Marlton Pike, Cherry Hill, NJ 08003;

(xi) 8075 Sheridan Drive, Williamsville, NY 14221;

(xii) 5300 Powerline, Ft. Lauderdale, FL 33309; and

(xiii) 1 Syms Way, Secaucus, NJ 07094.

“Net Proceeds” has the meaning set forth in the Plan.

“Operating Reserves” has the meaning set forth in the Plan.

“Parity Stock” shall mean any class or series of Capital Stock (other than the Series A Preferred Stock or the Series B Preferred Stock) that ranks equally with the Series A Preferred Stock and Series B Preferred Stock in the distribution of assets upon any liquidation, dissolution or winding up of the Corporation (in each case, without regard to whether dividends accrue cumulatively or non-cumulatively).

“Pension Reserve” has the meaning set forth in the Plan.

“Person” shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization, government or agency or political subdivision thereof or any other entity.

“Plan” means the Second Amended Joint Chapter 11 Plan of Reorganization of the Corporation and its Subsidiaries filed on July 13, 2012, as it may be amended.

“Plan Waterfall” has the meaning set forth in the Plan.

“Redeemed Stockholder” means Ms. Marcy Syms, the Laura Merns Living Trust, dated February 14, 2003, and the Marcy Syms Revocable Living Trust, dated January 12, 1990.

“Reorganized Filene’s” has the meaning set forth in the Plan.

“Rights Offering” has the meaning set forth in the Plan.

“Series A Committee” means the committee of the Board of Directors, consisting of the Series A Directors, established pursuant to Section 5 of Article Fifth.

“Series A Director” has the meaning ascribed to it in Section 2 of Article Fifth.

“Special Stock Director” has the meaning ascribed to it in Section 2 of Article Fifth.

“Special Stock Ownership Threshold” means the holder of the Special Stock and its Affiliates collectively own no less than 2,345,000 shares of Common Stock (as such number may be adjusted to reflect equitably any stock split, subdivision, combination or similar change with respect to the Common Stock).

“Sub-Category Expense Reserve” has the meaning set forth in the Plan.

“Subsidiary” shall mean any corporation, partnership, limited liability company, joint venture, joint stock company, trust, unincorporated organization or other entity for which the Corporation owns at least 50% of the voting stock (or equivalent voting interest) of such entity.

“Subsequent Majority Shareholder Payment” has the meaning set forth in the Plan.

“Syms Class 3 (Convenience Claims)” has the meaning set forth in the Plan.

“Syms Class 4 (General Unsecured Claims)” has the meaning set forth in the Plan.

“Syms Unsecured Creditors” means the holders of Syms General Unsecured Claims as defined in the Plan.

“Trinity Carry Reserve” has the meaning set forth in the Plan.

“Trinity Joint Venture” has the meaning set forth in the Plan.

“Trinity Property” has the meaning set forth in the Plan.

“Unsecured Creditors” means the holders of General Unsecured Claims as defined in the Plan.

“Unsubscribed Shares” has the meaning set forth in the Plan.

B. RULES OF CONSTRUCTION

Unless the context otherwise requires: (i) a term has the meaning assigned to it herein; (ii) an accounting term not otherwise defined herein has the meaning accorded to it in accordance with generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis; (iii) words in the singular include the plural, and in the plural include the singular; (iv) “or” is not exclusive; (v) “will” shall be interpreted to express a command; (vi) “including” means including without limitation; (vii) provisions apply to successive events and transactions; (viii) except for references to Sections of the Plan, references to any Section or clause refer to the corresponding Section or clause, respectively, of this Certificate of Incorporation; (ix) any reference to a day or number of days, unless expressly referred to as a Business Day, shall mean the respective calendar day or number of calendar days; (x) headings are for convenience only; and (xi) unless otherwise expressly provided in this Certificate of Incorporation, a reference to any specific agreement or other document shall mean a reference to such agreement or document as amended from time to time.

When the terms of this Certificate of Incorporation refer to a specific agreement or other document, or a decision by any body, person or entity, to determine the meaning or operation of a provision hereof, the secretary of the Corporation shall maintain a copy of such agreement, document or decision, as amended, at the principal executive offices of the Corporation and a copy thereof shall be provided free of charge to any stockholder who make a request therefor.

FOURTEENTH: The Corporation shall not issue any class of non-voting equity securities unless and solely to the extent permitted by Section 1123(a)(6) of the United States Bankruptcy Code (the "Bankruptcy Code"); provided, however, that this Article Fourteenth: (a) will have no further force and effect beyond that required under Section 1123(a)(6) of the Bankruptcy Code; (b) will have such force and effect, if any, only for so long as Section 1123(a)(6) of the Bankruptcy Code is in effect and applicable to the Corporation; and (c) in all events may be amended or eliminated in accordance with applicable law from time to time in effect.

EX-10.1 3 v356378_ex10-1.htm EXHIBIT 10.1

Execution Version

STOCK PURCHASE AGREEMENT

THE SHARES OF COMMON STOCK SUBJECT TO THIS STOCK PURCHASE AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES OR “BLUE SKY” LAWS AND NEITHER THE SHARES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS: (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS, OR (2) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SHARES, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SHARES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS.

STOCK PURCHASE AGREEMENT

THIS STOCK PURCHASE AGREEMENT (this “Agreement”) is dated as of October 1, 2013, by and among TRINITY PLACE HOLDINGS INC., a Delaware corporation (the “Company”), and the PURCHASERS listed in Exhibit A (each, a “Purchaser” and collectively, the “Purchasers”).

WHEREAS, the Company desires to issue and sell to Purchasers, and Purchasers desire to purchase from the Company an offering of shares (the “Shares”) of Common Stock, par value $.01 per share, of the Company (the “Common Stock”) in a private placement transaction on the terms and conditions set forth herein (the “Offering”).

NOW, THEREFORE, for and in consideration of the foregoing premises and the mutual agreements and covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the parties hereto do hereby agree as follows:

Article 1
PURCHASE AND SALE OF THE SHARES

Section 1.1 Purchase and Sale of the Shares. Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser, and each Purchaser will purchase from the Company the number of Shares set forth in Exhibit A opposite such Purchaser’s name, at $4.00 per Share, for an aggregate purchase price of $13,477,776.00 (the “Purchase Price”).

Article 2
CLOSING

Section 2.1 Closing. The closing (the “Closing”) of the purchase and sale of the Shares will take place at the offices of the Company, One Syms Way, Secaucus, New Jersey 07094, at 1 p.m., local time, on the first business day following the date on which all conditions to the Closing identified in Article 3 and Article 4 below have been satisfied or waived (other than such conditions that by their nature cannot be satisfied until the Closing, but subject to the satisfaction or waiver of such conditions), or on such other date as is mutually agreed upon by the Company and Purchasers (the date of the Closing, the “Closing Date”). The Closing may take place at another time or place as is mutually agreed upon by the Company and the Purchasers. At the Closing, the Company will register, in the books of the Company, in the name of each Purchaser, that number of Shares being purchased by such Purchaser in accordance with Exhibit A, against payment of each Purchaser’s pro rata share of the Purchase Price by wire transfer of such pro rata share of the Purchase Price in immediately available United States funds payable to the Company pursuant to the wire transfer instructions to be provided by the Company in writing. The amount of funds so wired by each Purchaser shall be calculated by multiplying the number of Shares to be purchased by such Purchaser by $4.00 and is specified opposite such Purchaser’s name in Exhibit A. At the Closing, the Shares shall be issued and held in book-entry form with the Company’s transfer agent and registered in the name of Purchasers, and within one (1) business day after the Closing Date, the transfer agent shall issue a Direct Registration System (DRS) statement evidencing that the Shares have been issued and are held in book-entry form.

Article 3
CONDITIONS TO THE OBLIGATIONS
OF PURCHASERS AT CLOSING

The obligation of each Purchaser to purchase and pay for the Shares at the Closing is subject to the satisfaction on or prior to the Closing Date of the following conditions, each of which may be waived by such Purchaser in its sole discretion:

Section 3.1 Representations and Warranties. The representations and warranties of the Company contained in this Agreement which are qualified as to materiality must be true and correct in all respects and the representations and warranties of the Company contained in this Agreement which are not qualified as to materiality must be true and correct in all material respects as of the date hereof and as of the Closing Date, in each case, with the same effect as though such representations and warranties were made at and as of the Closing Date, except to the extent that the representations and warranties relate to a specified date, in which case the representations and warranties must be true and correct in all respects or true and correct in all material respects, as the case may be, as of such date only.

Section 3.2 Performance of Covenants. The Company will have performed or complied with in all material respects all covenants and agreements required to be performed or complied with by it at or prior to the Closing pursuant to this Agreement.

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Section 3.3 No Injunctions; etc. No court or governmental injunction, order or decree prohibiting the purchase and sale of the Shares will be in effect. There will not be in effect any law, rule or regulation prohibiting or restricting the sale or requiring any consent or approval of any individual, corporation, partnership, limited liability company, trust, association or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof (each, a “Person”) that has not been obtained to issue and sell the Shares to Purchasers.

Section 3.4 Closing Documents. The Company will have delivered to Purchasers the following:

(a) a certificate of an officer of the Company certifying that the conditions in Sections 3.1 and 3.2 have been satisfied;

(b) a certificate of the Secretary of the Company, dated as of the Closing Date, certifying (i) the attached copies of the Certificate of Incorporation and By-laws of the Company, (ii) the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement and the issuance of the Shares and (iii) the incumbency of the officers duly authorized to execute this Agreement and the other documents contemplated by this Agreement on behalf of the Company;

(c) a certificate of the Secretary of State of the State of Delaware, dated no later than thirty (30) days prior to the Closing Date, to the effect that the Company is in good standing in the State of Delaware and that all annual reports, if any, have been filed as required and that all taxes and fees have been paid in connection therewith.

Section 3.5 Waivers and Consents. The Company will have obtained all consents and waivers of any Persons necessary to execute and deliver this Agreement and all related documents and agreements, to issue and deliver the Shares and to otherwise perform its obligations hereunder and under such related documents and agreements and all such consents and waivers will be in full force and effect.

Section 3.6 Amended and Restated Charter. The irrevocable written consents of the holder of the Series A Preferred Stock and the holders of shares of Common Stock sufficient to approve the amendment and restatement of the Certificate of Incorporation of the Company increasing the number of authorized shares of Common Stock and authorizing the share of Special Stock referenced below in Section 7.9, inter alia, such amendment and restatement substantially in the form attached hereto as Exhibit B (the “Restated Charter”), shall have been executed and delivered to the Company.

Section 3.7 Chief Executive Officer. Matthew Messinger (“Messinger”) shall have executed and delivered to the Company, and the Company shall have executed and delivered to Messinger, an agreement regarding Messinger’s employment or engagement as Chief Executive Officer of the Company (together with any RSU or other incentive compensation or other separate agreements executed in connection with Messinger’s employment, the “CEO Agreement”), with the CEO Agreement (which shall be in form and substance reasonably satisfactory to Purchasers) to become effective upon the Closing.

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Article 4
CONDITIONS TO THE OBLIGATIONS
OF THE COMPANY AT CLOSING

The obligations of the Company to issue and sell the Shares to Purchasers at the Closing is subject to the satisfaction on or prior to the Closing Date of the following conditions, each of which may be waived by the Company in its sole discretion:

Section 4.1 Receipt of Purchase Price. The Company shall have received payment of the Purchase Price with respect to the Shares purchased hereunder.

Section 4.2 Representations and Warranties. The representations and warranties of Purchasers contained in this Agreement which are qualified as to materiality must be true and correct in all respects and the representations and warranties of Purchasers contained in this Agreement which are not qualified as to materiality must be true and correct in all material respects as of the date hereof and as of the Closing Date with the same effect as though such representations and warranties were made at and as of the Closing Date.

Section 4.3 No Injunctions; etc. No court or governmental injunction, order or decree prohibiting the purchase and sale of the Shares will be in effect. There will not be in effect any law, rule or regulation prohibiting or restricting the sale or requiring any consent or approval of any Person that has not been obtained to issue and sell the Shares to Purchasers.

Section 4.4 Amended and Restated Charter. The irrevocable written consents of the holder of the Series A Preferred Stock and the holders of shares of Common Stock sufficient to approve the Restated Charter shall have been executed and delivered to the Company.

Section 4.5 Chief Executive Officer. Messinger shall have executed and delivered to the Company, and the Company shall have executed and delivered to Messinger, the CEO Agreement, with the CEO Agreement to become effective upon the Closing.

Article 5
REPRESENTATIONS AND WARRANTIES OF PURCHASERS

Each Purchaser, jointly and severally, represents and warrants to the Company that:

Section 5.1 Accredited Investor. Purchaser is an “accredited investor” within the meaning of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”). Purchaser is purchasing the Shares to be issued to it hereunder for its own account or for the account of its customers, each of whom is an “accredited investor,” and not with a view toward, or for sale in connection with, any distribution thereof in violation of the registration requirements of the Securities Act. Purchaser does not have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to the Shares.

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Section 5.2 No Brokers. No finder or broker has acted on behalf of Purchaser in connection with the purchase of the Shares by Purchaser or the consummation of this Agreement or any of the transactions contemplated hereby. Purchaser has not had any direct or indirect contact with any investment banking firm or similar firm (other than any such firm retained by Purchaser to advise Purchaser in connection with the transactions contemplated hereby or any such firm retained by the Company, including Houlihan Lokey) with respect to the offer of the Shares by the Company to Purchaser or Purchaser’s subscription for the Shares.

Section 5.3 Ability to Bear Risks of Investment. Purchaser confirms that it is able to (i) bear the economic risk of this investment and has reviewed the risk factors set forth in the Commission Documents (as defined in Section 6.4(b) below), (ii) hold the Shares for an indefinite period of time and (iii) bear a complete loss of Purchaser’s investment.

Section 5.4 Access to Information. Purchaser acknowledges that it has (i) been afforded access to the Commission Documents, including, without limitation, the risk factors set forth in the Fiscal Year 2012 10-K, this Agreement and all other materials furnished herewith; (ii) been afforded the opportunity to ask the questions it deemed necessary of representatives of the Company concerning the Company and the terms and conditions of the Offering; and (iii) been afforded the opportunity to request additional information concerning the Company as the Company possesses or can acquire without unreasonable effort or expense. The Company agrees that such access and opportunity shall in no way limit or modify the representations and warranties of the Company in Article 6 or the right of any Purchaser to rely on them, provided that Purchaser acknowledges and agrees that, other than the representations and warranties set forth in this Agreement, there are no other representations and warranties of the Company either express or implied.

Section 5.5 No General Solicitation. Purchaser did not (i) receive or review any advertisement, article, notice or other communication published in a newspaper or magazine or similar media or broadcast over television or radio, whether closed circuit, or generally available, with respect to the Shares or (ii) attend any seminar, meeting or investor or other conference whose attendees were, to Purchaser’s knowledge, invited by any general solicitation or general advertising with respect to the Shares.

Section 5.6 Investment Experience. Either by reason of Purchaser’s business or financial experience or the business or financial experience of its professional advisors (who are unaffiliated with and are not compensated by the Company or any “Affiliate” (as such term is defined in Rule 501 promulgated under the Securities Act) thereof, or finder or selling agent of the Company, directly or indirectly), Purchaser has the capacity to protect Purchaser’s interests in connection with the transactions contemplated by this Agreement.

Section 5.7 Organization, Good Standing, Authorization. Purchaser is a corporation, limited liability company, trust or partnership or other similar entity duly organized, validly existing and in good standing under the laws of its jurisdiction. Purchaser has full power and authority (corporate or otherwise) to execute, deliver and enter into this Agreement and to purchase the Shares to be issued to such Purchaser hereunder. The execution and delivery by Purchaser of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or other action on the part of Purchaser. This Agreement has been duly executed and delivered by Purchaser and constitutes a legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy.

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Section 5.8 No Registration. Purchaser is aware that the Shares have not been registered under the Securities Act or any state or foreign securities or “blue sky” laws, that the Shares will be issued on the basis of the statutory exemption provided by Section 4(2) of the Securities Act or Regulation D promulgated thereunder, or both, relating to transactions by an issuer not involving any public offering and under similar exemptions under certain state securities or “blue sky” laws, that the terms of the Offering have not been reviewed by, passed on or submitted to any federal or state agency or self-regulatory organization where an exemption is being relied upon, and that the Company’s reliance thereon is based, in part, upon the truth, completeness and accuracy of the representations made by Purchaser in this Agreement.

Section 5.9 No Short Positions. Neither Purchaser nor any Affiliate of Purchaser is party to any short position or hedge against any security or securities of the Company.

Article 6
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY

The Company represents and warrants to each Purchaser that, except as set forth in the Company Disclosure Schedules attached hereto:

Section 6.1 Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has no Subsidiaries (defined below) except for Filene’s Basement, LLC, a Delaware limited liability company and wholly owned subsidiary of the Company, which is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. Each of the Company and its Subsidiary has full corporate power and authority to own and hold its properties and to conduct its business as now being conducted and as described in the Commission Documents. Each of the Company and its Subsidiary is duly qualified to do business, and in good standing, in each jurisdiction in which the nature of its business requires such qualification or good standing, except for any failure to be so qualified or in good standing that would not result in any change or effect that is materially adverse to the business, results of operations, assets, liabilities, condition (financial or otherwise) or prospects of the Company and its Subsidiary, taken as a whole, or on its ability to perform its obligations under this Agreement or the validity or enforceability of this Agreement or the rights or remedies of the Purchaser hereunder (a “Material Adverse Effect”). “Subsidiary” means a Person in which the Company directly or indirectly owns more than fifty percent (50%) of the capital stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policies.

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Section 6.2 Capitalization. As of the date hereof, the authorized capital stock of the Company consists of 20,000,000 shares of capital stock, divided into 19,999,998 shares of Common Stock, one share of Series A Preferred Stock, par value $.01 (the “Series A Preferred Stock”), and one share of Series B Preferred Stock, par value $.01 (the “Series B Preferred Stock”). As of the date hereof, (i) 16,630,554 shares of Common Stock are issued and outstanding, (ii) one share of Series A Preferred Stock is issued and outstanding, and (iii) one share of Series B Preferred Stock is issued and outstanding. As of the Closing Date, (i) 19,999,998 shares of Common Stock will be issued and outstanding, (ii) one share of Series A Preferred Stock will be issued and outstanding, and (iii) one share of Series B Preferred Stock will be issued and outstanding. Immediately following the effectiveness of the filing of the Restated Charter with the Delaware Secretary of State, the authorized capital stock of the Company will consist of 40,000,000 shares of capital stock, divided into 39,999,997 shares of Common Stock, one share of Series A Preferred Stock, one share of Series B Preferred Stock, and one share of Special Stock, par value $.01 (“Special Stock”), of which (i) 19,999,998 shares of Common Stock will be issued and outstanding, (ii) one share of Series A Preferred Stock will be issued and outstanding, (iii) one share of Series B Preferred Stock will be issued and outstanding and (iv) one share of Special Stock will be issued and outstanding, after taking into account the transactions contemplated by this Agreement.

All the outstanding shares of Common Stock and Preferred Stock have been duly authorized and validly issued and are fully paid and nonassessable and free of preemptive rights created by or through the Company. There are no options, warrants or other rights, convertible debt, agreements, arrangements or commitments of any character obligating the Company to issue or sell any shares of capital stock of or other equity interests in the Company or its Subsidiary, other than this Agreement with respect to the Shares and other than the obligation of the Company to grant to Messinger restricted stock units covering an aggregate of up to 2,178,570 shares of Common Stock in accordance with the terms and conditions of the CEO Agreement. Except as disclosed in the Company Disclosure Schedules, there are no holders or beneficial owners of securities of the Company having rights to registration thereof who have not waived such rights with respect to the registration of Shares being issued pursuant to this Agreement.

Section 6.3 Corporate Power, Authorization; Enforceability. The Company has full corporate power and authority to execute, deliver and enter into this Agreement and to consummate the transactions contemplated hereby. Except as disclosed in the Company Disclosure Schedules, all action on the part of the Company, its directors or stockholders necessary for the authorization, execution, delivery and performance of this Agreement by the Company, the authorization, sale, issuance and delivery of the Shares and the performance of the Company’s obligations hereunder has been taken. The Shares to be purchased and issued on the Closing Date have been duly authorized and, when issued in accordance with this Agreement, will bevalidly issued, fully paid and nonassessable and will be free and clear of all taxes, liens, claims, encumbrances, options, mortgages, charges, pledges and security interests of any kind whatsoever (collectively, “Liens”), other than any Liens arising out of any agreements, actions or omissions of a Purchaser that will attach upon such Purchaser’s receipt of such Shares and other than restrictions imposed by this Agreement and applicable securities laws. No preemptive or other rights to subscribe for or purchase equity securities of the Company exist with respect to the issuance and sale of the Shares by the Company pursuant to this Agreement. This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy.

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Section 6.4 Financial Statements and Commission Filings; Undisclosed Liabilities.

(a) Included in the Company’s Annual Report on Form 10-K for the year ended March 2, 2013, as amended (the “Fiscal Year 2012 10-K”), are true and complete copies of the audited consolidated statements of net assets (the “Statements of Net Assets”) of the Company as of March 2, 2013 and February 25, 2012, the related audited consolidated statement of changes in net assets for the period October 29, 2011 to March 2, 2013, and the related audited consolidated statements of operations, shareholders’ equity and cash flows for the period February 27, 2011 to October 29, 2011 and for the fiscal year ended February 26, 2011 (collectively, the “Year-End Financial Statements”), accompanied by the report of BDO USA LLP, the Company’s independent auditor. Included in the Company’s Quarterly Report on Form 10-Q for the quarter ended June 1, 2013 are true and complete copies of the condensed consolidated statements of net assets of the Company as of June 1, 2013 and March 2, 2013, and the related condensed consolidated statement of changes in net assets of the Company for the period March 2, 2013 to June 1, 2013 (the “Interim Financial Statements,” and together with the Year-End Financial Statements, the “Financial Statements”). The Financial Statements have been prepared in accordance with United States generally accepted accounting principles (“GAAP”) consistently applied, and as of their respective dates, fairly present, in all material respects, the consolidated net assets and changes in consolidated net assets of the Company and its Subsidiary and the results of its operations as of the time and for the periods indicated therein. The Financial Statements have been prepared and are in accordance with the accounting books and records of the Company and its Subsidiary.

(b) The Company has filed all reports, forms, statements and other documents, including all amendments and supplements thereto, required to be filed with or submitted to the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act and the Exchange Act of 1934 (the “Exchange Act”), or the applicable rules and regulations thereunder, at any time on or after September 14, 2012, (as the documents may have been amended since the time of their filing, the “Commission Documents”) and each such Commission Document has been made available to the Purchaser either by physical or electronic delivery or via the Commission’s EDGAR System. As of their respective filing dates, each Commission Document complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder applicable to the Commission Documents, and no Commission Document contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. As of their respective filing dates, the financial statements of the Company included in the Commission Documents complied as to form in all material respects with then applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto.

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(c) Since March 2, 2013, the Company, including its Subsidiary, has not incurred any liabilities or obligations of any nature, whether or not accrued, absolute, contingent or otherwise, other than liabilities (i) disclosed in the Commission Documents, (ii) adequately provided for in the Statements of Net Assets or disclosed in any related notes thereto, (iii) not required under GAAP to be reflected in the Statements of Net Assets or disclosed in any related notes thereto, (iv) incurred pursuant to this Agreement, or (v) incurred in the ordinary course of business.

(d) The Company maintains internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that has been designed by, or under the supervision of, the Company’s principal executive and principal financial officers, or persons performing similar functions, and effected by the Company’s Board of Directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company maintains disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the Commission.

Section 6.5 No Material Adverse Changes. Since March 2, 2013, except as disclosed in the Commission Documents or the Company Disclosure Schedules, there has been no development or event that has had or could reasonably be expected to have a Material Adverse Effect.

Section 6.6 Absence of Certain Developments. Except as contemplated by this Agreement or disclosed in the Commission Documents or the Company Disclosure Schedules, since March 2, 2013, through the date immediately preceding the Closing Date, each of the Company and its Subsidiary has not (a) issued any stock, options, bonds or other corporate securities, (b) discharged or satisfied any lien or adverse claim or paid any obligation or liability (absolute, accrued or contingent), other than current liabilities shown on the Statements of Net Assets and current liabilities incurred in the ordinary course of business, (c) declared or made any payment or distribution of cash or other property to the stockholders of the Company or purchased or redeemed any of its securities, (d) mortgaged, pledged or subjected to any Lien or adverse claim any of its properties or assets, except for Liens for taxes not yet due and payable or otherwise in the ordinary course of business, (e) suffered any extraordinary losses or waived any rights of material value, (f) made any capital expenditures or commitments therefor other than in the ordinary course of business and in accordance with budgeted reserves, (g) suffered any damages, destruction or casualty loss, whether or not covered by insurance, affecting any of its properties or assets which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (h) made any material change in the nature or operations of its business, or (i) entered into any agreement or commitment to do any of the foregoing.

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Section 6.7 No Conflicts or Consents.

(a) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby will not (i) result in the violation of any provision of the Certificate of Incorporation or Bylaws of the Company, (ii) result in any violation of any law, statute, rule, regulation, order, writ, injunction, judgment or decree of any court, governmental or self–regulatory authority to or by which the Company or its properties or assets are bound, or (iii) conflict with, or result in a breach or violation of, any of the terms or provisions of, constitute (with due notice or lapse of time or both) a default under, or give to others any rights of termination, amendment, acceleration or cancellation of any lease, loan agreement, mortgage, security agreement, trust indenture or other agreement to which the Company or its Subsidiary is a party or by which it is bound or to which any of its properties or assets is subject, nor result in the creation or imposition of any Lien upon any of the properties or assets of the Company or its Subsidiary, except in the cases of clauses (ii) and (iii) above, for such conflicts, breaches, violations, defaults or Liens as would not reasonably be expected to result individually or in the aggregate, in a Material Adverse Effect.

(b) No consent, approval, license, permit, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or any other Person remains to be obtained or is otherwise required to be obtained by the Company in connection with the authorization, execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, including, without limitation, the issue and sale of the Shares, except filings as may be required to be made by the Company after the Closing with (i) the Commission, (ii) state, “blue sky” or other securities regulatory authorities, and (iii) the Delaware Secretary of State, and except such consents and approvals of a Person other than a governmental authority as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.

Section 6.8 Litigation. Except as disclosed in the Commission Documents or the Company Disclosure Schedules and except for objections and other litigation with respect to (i) the claims allowance and resolution process in the bankruptcy cases captioned In re Filene’s Basement, LLC, et. al. and (ii) any claim, as defined in 11 U.S.C. § 101(5), against any of the Debtors in such cases, there are no claims, actions, suits, investigations or proceedings pending or, to the Company’s knowledge, threatened against the Company or its Subsidiary, their respective assets or any of the Company’s or its Subsidiary’s officers or directors, at law or in equity, by or before any governmental authority or arbitrator or by or on behalf of any third-party, except such claims, actions, suits, investigations or proceedings that would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.

Section 6.9 No Default or Violation. Except as disclosed in the Company Disclosure Schedules, neither the Company nor its Subsidiary is (i) in default in any material respect under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company under) any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound or (ii) in violation in any material respect of any material order, decree or judgment of any court, arbitrator or governmental body.

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Section 6.10 Environmental Matters. Except as disclosed in the Company Disclosure Schedules, each of the Company and its Subsidiary has obtained all material permits, licenses and other authorizations which are required to conduct its business under United States federal, state and local laws relating to pollution or protection of the environment, including laws related to emissions, discharges, releases or threatened releases of pollutants, contaminants or hazardous or toxic material or wastes into ambient air, surface water, groundwater or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants or hazardous or toxic materials or wastes (“Environmental Laws”). Each of the Company and its Subsidiary is in compliance with all terms and conditions of such required permits, licenses and authorizations and is also in full compliance with all other applicable limitations, restrictions, conditions and requirements contained in the Environmental Laws, except as disclosed in the Company Disclosure Schedules and except for such failures to comply as would not reasonably be expected to have a Material Adverse Effect. The Company is not aware of, nor has the Company received notice of, any events, conditions, circumstances, actions or plans which may interfere with or prevent continued compliance or which would give rise to any liability under any Environmental Laws, except as disclosed in the Company Disclosure Schedules and except such noncompliance or liabilities as would not reasonably be expected to have a Material Adverse Effect.

Section 6.11 Properties. The Company (including through its Subsidiary) has good and marketable title to all of the properties and assets reflected as owned by it in the Commission Documents, subject to no Lien except (i) those, if any, reflected in the Commission Documents or (ii) those which are not material in amount. The Company (including through its Subsidiary) has valid leasehold interests in the properties reflected as leased by it in the Commission Documents, subject to no Lien except (i) those, if any, reflected in the Commission Documents or (ii) those which are not material in amount.

Section 6.12 Insurance. The Company maintains insurance of the types, against such losses and in the amounts and with such insurers as are customary for similarly situated companies in the Company’s industry and otherwise reasonably prudent, including, but not limited to, insurance covering all real property owned or leased by the Company, including its Subsidiary, against theft, damage, destruction, acts of vandalism and all other risks customarily insured against by similarly situated companies, all of which insurance is in full force and effect.

Section 6.13 Compliance. Except as disclosed in the Company Disclosure Schedules, each of the Company and its Subsidiary is in compliance in all material respects with all applicable laws and regulations and all material orders of, and agreements with, any governmental, or self–regulatory authority applicable to it or any of its properties or assets. Each of the Company and its Subsidiary has all permits, certificates, licenses, approvals and other authorizations required under applicable laws and regulations or necessary in connection with the conduct of its business, except as disclosed in the Company Disclosure Schedules and except where the failure to have such permits, certificates, licenses, approvals and other authorizations would not have a Material Adverse Effect. Notwithstanding anything to the contrary in this Section 6.13, this Section 6.13 will not apply to subject matters that are addressed by any of Section 6.1, Section 6.3, Section 6.4, Section 6.7, Section 6.9, Section 6.10, Section 6.14, or Section 6.15, which matters are controlled by such Sections without duplication with this Section 6.13.

Section 6.14 Taxes. Each of the Company and its Subsidiary has timely filed or obtained extensions for filing of all material federal, state, local and foreign income, excise, franchise, real estate, sales and use and other tax returns heretofore required by any law to which it is bound to be filed by it. All material federal, state, county, local, foreign or other income taxes which have become due or payable by the Company or its Subsidiary (collectively, “Taxes”), have been paid in full or are adequately provided for in accordance with GAAP on the financial statements of the Company. No Liens arising from or in connection with Taxes have been filed and are currently in effect against the Company or its Subsidiary, except for Liens for Taxes which are not yet due. No audits or investigations are pending or, to the knowledge of the Company, threatened, with respect to any tax returns or Taxes of the Company.

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Section 6.15 ERISA. Except in each case as disclosed in the Commission Documents, the Company is in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations promulgated or issued thereunder (“ERISA”); no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company would have any material liability; the Company has not incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations promulgated or issued thereunder (the “Code”); and each “pension plan” for which the Company would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.

Section 6.16 Labor Disputes. Except as disclosed in the Company Disclosure Schedules, the Company is not involved in any material labor dispute with its employees nor is any such dispute, to the Company’s knowledge, threatened or imminent.

Section 6.17 Private Offerings. Neither the Company nor any Person acting on its behalf has offered or sold the Shares by means of any general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act. The Company has not sold the Shares to anyone other than the Purchasers designated in this Agreement. Each Share certificate shall bear substantially the same legend set forth in Article 9 hereof for at least so long as required by the Securities Act.

Section 6.18 Broker’s or Finder’s Commissions. Except as disclosed in the Company Disclosure Schedules, no finder, broker, agent, financial person or other intermediary has acted on behalf of the Company in connection with the sale of the Shares by the Company or the consummation of this Agreement or any of the transactions contemplated hereby. Except as disclosed in the Company Disclosure Schedules, the Company has not had any direct or indirect contact with any investment banking firm (or similar firm) with respect to the offer of the Shares by the Company to Purchaser or Purchaser’s subscription for the Shares to be issued to Purchaser hereunder.

Section 6.19 Investment Company; Shell Company. The Company, including its Subsidiary, does not conduct its business in a manner in which it would become an “investment company” as defined in Section 3(a) of the Investment Company Act of 1940, as amended. The Company has never been a “shell” company under applicable rules of the SEC.

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Article 7
REGISTRATION OF COMMON STOCK; INDEMNIFICATION;
BOARD OF DIRECTORS; CERTAIN FEES

Section 7.1 Registrable Securities. For the purposes of this Agreement, “Registrable Securities” means the Shares of Common Stock of the Company to be issued to the Purchasers; provided that (i) any Shares of Common Stock will cease to be Registrable Securities, and (ii) the Company will not be obligated to maintain the effectiveness of the Shelf Registration Statement (as defined below), and the Company’s obligations under Section 7.2 will cease, with respect to the Registrable Securities of a holder thereof (a “Holder”) following the date on which the Company delivers an opinion of counsel to all Holders in form and substance reasonably satisfactory to each Holder and its counsel and to the Company’s transfer agent that (1) the Holder may sell in a single transaction all Registrable Securities then held or issuable to the Holder pursuant to Rule 144 promulgated under the Securities Act or otherwise and (2) all transfer restrictions and restrictive legends with respect to the Registrable Securities will be removed upon the consummation of the sale. The period of time during which the Company is required to keep the Shelf Registration Statement (as defined below) effective is referred to as the “Effectiveness Period.”

Section 7.2 Registration. The Company will file with the Commission as soon as practicable, but in any event, on or prior to the 90^th day after the Closing Date a shelf registration statement on Form S-1 or successor form or another form selected by the Company that is available to it under the Securities Act (the “Shelf Registration Statement”) with respect to the Registrable Securities beneficially owned by the Holders following the Closing to permit the sale of such securities. The Company may supplement the Shelf Registration Statement from time to time to register securities other than Registrable Securities for sale for the account of any Person; provided, however, that such supplement will be permitted only so long as the Commission rules provide that such supplement does not give the Commission the right to review the Shelf Registration Statement; provided, further, that such supplement does not adversely affect the rights of any Holder. Notwithstanding the foregoing or anything to the contrary in this Article 7, (i) within thirty (30) days after the date on which the Company becomes eligible to use Form S-3 or other short-form registration statement form under the Securities Act, the Company shall, upon ten (10) business days prior notice to all Holders, register any Registrable Securities registered but not yet distributed under the effective Shelf Registration Statement on such short-form Shelf Registration Statement, and, once the short-form Shelf Registration Statement is declared effective, de-register such shares under the initial Shelf Registration Statement, unless one or more Holders notifies the Company within five (5) business days of receipt of the Company’s notice that such actions would interfere with a distribution of Registrable Securities already in progress, in which case the Company shall wait to commence such registration or de-registration, as applicable, until such time as doing so would no longer interfere with such distribution, provided, however, that, for the avoidance of doubt, the Company shall have no obligation to indemnify or otherwise compensate any Holder for the Company’s failure to file such short-form Shelf Registration Statement within such thirty (30)-day period unless such Holder has been materially and actually damaged by such failure; and (ii) if the Company grants registration rights to one or more other holders of its Common Stock that are more favorable to such holders than the registration rights granted hereunder, with respect to underwritten offerings or otherwise, the Company and holders of a majority of the Registrable Securities hereunder shall in good faith amend this Agreement to reflect such more favorable terms as reasonably as practicable.

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Section 7.3 Registration Procedures. In connection with the registration of any Registrable Securities under the Securities Act as provided in this Article 7, the Company will use its best efforts to:

(a) cause the Shelf Registration Statement (and any other related registrations, qualifications or compliances as may be reasonably requested and as would permit or facilitate the sale and distribution of all Registrable Securities until the distribution thereof is complete) to become effective as soon as practicable following the filing thereof but not later than 180 days after the Closing Date (the “Scheduled Effective Date”);

(b) prepare and file with the Commission the amendments and supplements to the Shelf Registration Statement and the prospectus used in connection therewith and take all other actions as may be necessary to keep the Shelf Registration Statement continuously effective until the disposition of all securities in accordance with the intended methods of disposition by the Holder or Holders thereof set forth in the Shelf Registration Statement will be completed, and to comply with the provisions of the Securities Act (to the extent applicable to the Company) with respect to the dispositions;

(c) (i) at least five (5) business days before filing with the Commission, furnish to each Holder and its counsel (if any) copies of all documents proposed to be filed with the Commission in connection with such registration, which documents will be subject to the review and reasonable comment of such Holder and its counsel; (ii) furnish to each Holder of Registrable Securities a reasonable number of copies of the Shelf Registration Statement, of each amendment and supplement thereto, and of the prospectus included in the Shelf Registration Statement (including each preliminary prospectus), in conformity with the requirements of the Securities Act, and the other documents (including exhibits to any of the foregoing), as the Holder may reasonably request, in order to facilitate the disposition of the Registrable Securities owned by such Holder; and (iii) respond as promptly as practicable to any comments received from the Commission with respect to each Shelf Registration Statement or any amendment thereto and, as promptly as reasonably possible, provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to the Holders as “Selling Stockholders” but not any comments that would result in the disclosure to the Holders of material and non-public information concerning the Company.

(d) register or qualify the Registrable Securities covered by the Shelf Registration Statement under the securities or “blue sky” laws of the various states as any Holder reasonably requests and do any and all other acts and things that may be necessary or reasonably advisable to enable a Holder to consummate the disposition in such states of the Registrable Securities owned by such Holder, except that the Company will not be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not, but for the requirements of this Section 7.3(d), be obligated to be qualified, or to subject itself to taxation in any jurisdiction;

(e) provide a transfer agent and registrar for the Registrable Securities covered by the Shelf Registration Statement not later than the effective date of the Shelf Registration Statement;

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(f) notify the Holders promptly, and confirm such notice in writing, (i)(A) when a prospectus as contained in the Shelf Registration Statement (a “Prospectus”) or any Prospectus supplement or post-effective amendment has been filed, and (B) with respect to a Shelf Registration Statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Shelf Registration Statement or the initiation of any proceedings for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (iv) of the existence of any fact or the happening of any event that makes any statement made in such Shelf Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of any changes in such Shelf Registration Statement, Prospectus or documents so that, in the case of the Shelf Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (v) of the Company’s reasonable determination that a post-effective amendment to a Shelf Registration Statement would be appropriate, or (vi) of any request by the Commission or other governmental authority for amendments or supplements to a Shelf Registration Statement or related Prospectus or for additional information that pertains to the Holders as “Selling Stockholders” or the “Plan of Distribution”;

(g) enter into customary agreements (including, in the event the Holders elect to engage an underwriter in connection with the Shelf Registration Statement, an underwriting agreement containing customary terms and conditions) and take all other actions as may be reasonably required in order to expedite or facilitate the disposition of Registrable Securities; provided, however, that the Company will not be liable for any underwriter’s fees, commissions and discounts or similar expenses; and

(h) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible time.

Section 7.4 Rule 144. With a view to making available to the Holders the benefits of certain rules and regulations of the Commission that at any time permit the sale of the Registrable Securities to the public without registration, the Company agrees to:

(a) make and keep public information available, as those terms are understood and defined in Rule 144 promulgated under the Securities Act;

(b) file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act;

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(c) so long as a Holder owns any unregistered Registrable Securities, furnish to the Holder upon any reasonable request a written statement by the Company as to its compliance with the public information requirements of Rule 144 promulgated under the Securities Act and/or the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and any other reports and documents of the Company as the Holder may reasonably request in availing itself of any rule or regulation of the Commission allowing a Holder to sell any Registrable Securities without registration (excluding any reports or documents of the Company that the Company, in its sole discretion, deems confidential); and

(d) take such further action as any Holder may reasonably request to enable such Holder to sell such Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act, including providing any legal opinions relating to such sale pursuant to Rule 144.

Section 7.5 Registration and Selling Expenses. All expenses incurred by the Company in connection with the Company’s performance of or compliance with this Article 7, including, without limitation, (i) all Commission registration and filing fees, (ii) blue sky fees and expenses, (iii) all necessary printing and duplicating expenses and (iv) all fees and disbursements of counsel and accountants retained on behalf of the Company (all expenses being called “Registration Expenses”), will be paid by the Company. Each Holder may, at its election, retain its own counsel and other representatives and advisors as it chooses at its own expense; provided that the Company will pay the reasonable fees and expenses of one counsel to the Holders incurred as part of reviewing Shelf Registration Statements and any Prospectuses and amendments related thereto.

Section 7.6 Registration Statement Not Declared Effective. The Company and the Holders agree that the Holders will suffer damages if (i) the Shelf Registration Statement is not declared effective by the Commission on or prior to the Scheduled Effective Date, or (ii) the length or frequency of Black-Out Periods exceed the limits set forth in Section 7.7(a) hereof. The Company and the Holders further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, (x) if the Registration Statement is not declared effective by the Commission on or prior to the Scheduled Effective Date and on such date or at any time thereafter the Company is not diligently and in good faith making commercially reasonable efforts to have the Registration Statement declared effective, the Company shall pay an amount in cash as liquidated damages to each Holder equal to one percent (1%) of the Purchase Price of the Shares held by such Holder for each thirty (30) day period after the Scheduled Effective Date during which the Company is failing to make such efforts, up to a maximum of four percent (4%); and (y) during the continuance of a Black-Out Period beyond the limits set forth in Section 7.7(a) hereof, the Company shall pay an amount in cash as liquidated damages to each Holder equal to one percent (1%) of the Purchase Price of the Shares held by such Holder for each thirty (30) day period during the continuance of a Black-Out Period beyond such limits, pro-rated as applicable for any partial month, up to a maximum of four percent (4%).

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Section 7.7 Certain Obligations of Holders.

(a) Each Holder agrees that, upon receipt of any notice from the Company of (i) the happening of any event of the kind described in Sections 7.3(f)(i)(A), 7.3(f)(ii), 7.3(f)(iii), 7.3(f)(iv), 7.3(f)(v) or 7.3(f)(vi) hereof, or (ii) a determination by the Company’s Board of Directors that it is advisable to suspend use of the Prospectus for a discrete period of time due to pending corporate developments such as negotiation of a material transaction which the Company in its sole discretion after consultation with legal counsel, determines it would be obligated to disclose in the Shelf Registration Statement, which disclosure the Company believes would be premature or otherwise inadvisable at such time or would have a material adverse effect on the Company and its stockholders, such Holder will forthwith discontinue disposition of such Registrable Securities covered by the Shelf Registration Statement or Prospectus until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 7.3(b) hereof, or until such Holder is advised in writing by the Company that the use of the applicable Prospectus may be resumed and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus. The period of time in which the use of a Prospectus or Shelf Registration Statement is so suspended shall be referred to as a “Black-Out Period.” The Company agrees to so advise such Holder promptly of the commencement and termination of any such Black-Out Period, and the Purchasers agree to keep the fact of such Black-Out Period confidential. The Company shall not impose a Black-Out Period under this Section 7.7 for more than ninety (90) consecutive days and not more than twice in any given twelve (12) month period; provided, that at least sixty (60) days must pass between Black-Out Periods and the total aggregate length of all Black-Out periods within any twelve (12) month period shall not exceed one hundred and twenty (120) days. Notwithstanding the foregoing, the Company may suspend use of any Shelf Registration Statement if the Commission’s rules and regulations prohibit the Company from maintaining the effectiveness of a Shelf Registration Statement because its financial statements are stale at a time when its fiscal year has ended or it has made an acquisition reportable under Item 2.01 of Form 8-K or any other similar situation until the Company’s Form 10-K or 10-KSB has been filed or a Form 8-K, including any required pro forma or historical financial statements, has been filed, respectively (provided that the Company shall use its reasonable best efforts to cure any such situation as soon as possible so that the Shelf Registration Statement can be used at the earliest possible time).

(b) As a condition to the closing and to the inclusion of its Registrable Securities, each Holder will furnish to the Company the information regarding the Holder as is legally required in connection with any registration, qualification or compliance referred to in this Article 7.

(c) Each Holder hereby covenants with the Company not to make any sale of the Registrable Securities without effectively causing the prospectus delivery requirements under the Securities Act to be satisfied.

(d) Each Holder acknowledges and agrees that the Registrable Securities sold pursuant to the Shelf Registration Statement are not transferable on the books of the Company unless the stock certificate submitted to the transfer agent evidencing the Registrable Securities, if applicable, is accompanied by a certificate reasonably satisfactory to the Company to the effect that (i) the Registrable Securities have been sold in accordance with this Agreement and the Shelf Registration Statement and (ii) the requirement of delivering a current prospectus has been satisfied.

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(e) Each Holder is hereby advised that the anti-manipulation provisions of Regulation M under the Exchange Act may apply to sales of the Registrable Securities offered pursuant to the Shelf Registration Statement and agrees not to take any action with respect to any distribution deemed to be made pursuant to the Shelf Registration Statement that constitutes a violation of Regulation M under the Exchange Act or any other applicable rule, regulation or law.

(f) At the end of the Effectiveness Period, the Holders of Registrable Securities included in the Shelf Registration Statement shall discontinue sales of shares pursuant thereto upon receipt of notice from the Company of its intention to remove from registration the shares covered thereby which remain unsold.

(g) The rights to cause the Company to register Registrable Securities granted to the Holders by the Company under Section 7.2 may be assigned in whole or in part by a Holder in connection with the transfer of such Registrable Securities, provided, that: (i) the transfer of the Registrable Securities and the rights to register such Registrable Securities are effected in accordance with applicable securities laws, (ii) the transfer involves not less than fifty percent (50%) of the Shares sold pursuant to this Agreement, (iii) the Holder gives prior written notice to the Company, and (iv) the transferee agrees to comply with the terms and provisions of this Agreement in a written instrument reasonably satisfactory in form and substance to the Company and its counsel. Except as specifically permitted by this Section 7.7, the rights of a Holder with respect to Registrable Securities will not be transferable to any other Person, and any attempted transfer will cause all rights of the Holder to registration of Registrable Securities under this Article 7 to be forfeited, void ab initio and of no further force and effect.

(h) With the written consent of the Company and each Holder affected or potentially affected by such proposed waiver, any provision of Sections 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8 or 7.9 may be waived (either generally or in a particular instance, either retroactively or prospectively and either for a specified period of time or indefinitely). Upon the effectuation of each waiver, the Company will promptly give written notice thereof to such Holders.

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Section 7.8 Indemnification.

(a) Subject to Section 7.8(c), the Company agrees to indemnify and hold harmless each Purchaser, and each Person, if any, who controls such Purchaser within the meaning of the Securities Act and the Exchange Act and each of its and their respective directors, officers, employees, partners, stockholders, members, principals, managers, trustees, agents, attorneys, successors and assigns (individually, an “Indemnified Party” and collectively, the “Indemnified Parties”) from and against any and all losses, claims, damages, liabilities, deficiencies, fines, judgments, amounts paid in self-defense, expenses of investigation, interest, penalties, taxes, assessments, costs (including cost of investigation and defense and reasonable attorneys’ fees and expenses) and expenses (collectively, “Losses”) to which any Indemnified Party may become subject whether or not involving a third-party claim, insofar as such Losses arise out of, in any way relate to, or result from (i) any breach of any representation or warranty made by the Company contained in or made pursuant to this Agreement, or (ii) the failure of the Company to fulfill any agreement or covenant contained in or made pursuant to this Agreement. Subject to Section 7.8(c), the Company agrees to reimburse any Indemnified Party for all such Losses, other than third-party claims, the procedure for which is described in Section 7.8(f), as they are incurred or suffered by such Indemnified Party. The representations and warranties of the Company set forth in this Agreement shall survive Closing until the twelve (12) month anniversary of the date hereof, and thereafter shall be of no further force or effect, provided that the representations and warranties made by the Company contained in Section 6.1 shall survive Closing until the expiration of the applicable statute of limitations, and the representations and warranties made by the Company in Sections 6.2, 6.3, 6.17 and 6.18 shall survive Closing indefinitely (the representations and warranties described in Sections 6.1, 6.2, 6.3, 6.17 and 6.18, the “Company Fundamental Representations”). Following the expiration of the periods set forth above with respect to any particular representation or warranty, the Company shall not have any further liability with respect to such representation or warranty; provided, however, that the good faith written assertion of any claim by any Indemnified Party against the Company with respect to the breach or alleged breach of any representation or warranty (or of a series of facts which would support such claim) shall extend the survival period with respect to such claim through the date such claim is conclusively resolved.

(b) [Intentionally Omitted]

(c) The Company shall not be required to indemnify any Indemnified Party with respect to the matters described in Section 7.8(a) unless and until the aggregate amount of Losses described in Section 7.8(a) exceeds $150,000, in which case the Indemnified Parties will be entitled to recover Losses only to the extent in excess thereof; provided that the foregoing limitations shall not apply with respect to any Losses arising from a breach of the Company Fundamental Representations.

(d) The Company will indemnify and hold harmless each Holder of Registrable Securities, each Person, if any, who controls such Holder within the meaning of the Securities Act or the Exchange Act, and their respective officers, directors, employees, principals, partners, members, managers, stockholders, trustees, agents, attorneys, successors and assigns against any Losses to which they may become subject under the Securities Act, the Exchange Act of other federal or state law, insofar as such Losses (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (any of the following, a “Violation”): (i) any untrue statement or alleged untrue statement of a material fact contained in a registration statement covering the Registrable Securities, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law in connection with a registration statement covering the Registrable Securities, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto. The Company, however, shall not be liable in any such case for any such Losses (or action in respect thereof) to the extent that they arise out of or are based upon a Violation which arises out of or is based upon information furnished in writing expressly for use in connection with such registration by any such Holder or controlling person, as the case may be; provided, further, that the Company will not be liable to any Holder or its officers, directors, employees, partners, members, stockholders and trustees, with respect to any Losses arising out of or based upon any untrue statement or alleged untrue statement of or omission or alleged omission to state a material fact in any preliminary prospectus which is corrected in an amended, supplemented or final prospectus if the purchaser of Registrable Securities pursuant thereto asserting such Losses purchased from such Holder, and was not, due to the fault of such Holder, sent or given a copy of such amended, supplemented or final prospectus at or prior to the sale of Registrable Securities to such purchaser after such Holder was notified of such correction in writing.

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(e) In connection with any registration pursuant to this Agreement in which a Holder of Registrable Securities is participating, such Holder will furnish to the Company in writing the information that is reasonably requested by the Company for use in any registration statement or prospectus prepared in connection with such registration and will severally, but not jointly, indemnify the Company Indemnified Parties against any Losses resulting from any untrue statement or omission or alleged untrue statement or omission of a material fact required to be stated in the registration statement or prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein not misleading, but only to the extent the Losses are caused by an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with the written information so furnished by such Holder and stated specifically for use in connection with the preparation of the registration statement or prospectus; provided, however, that such Holder shall not be liable in any such case to the extent that prior to the effective date of any such registration statement or the filing of a final prospectus or amendment or supplement thereto, such Holder has furnished in writing to the Company information expressly for use in such registration statement or prospectus or any amendment or supplement thereto which corrected or made not misleading information previously furnished to the Company. Notwithstanding the foregoing or any other provision of this Agreement, in no event will a Holder of Registrable Securities be liable for any Losses in excess of the net proceeds received by the Holder in connection with its disposition of Registrable Securities.

(f) Promptly after receipt by an indemnified party under this Section 7.8 of notice of any claim as to which indemnity may be sought, including, without limitation, the commencement of any action or proceeding, the indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7.8, promptly notify the indemnifying party in writing of such claim and the commencement of any action or proceeding, as applicable; provided that the failure of the indemnified party to so notify the indemnifying party will not relieve the indemnifying party from its obligations under this Section 7.8 except to the extent that the indemnifying party is actually and materially prejudiced by the failure. In case any action or proceeding is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to conduct the defense of any action with counsel approved by the indemnified party (which approval will not be withheld or delayed unreasonably) although the indemnified party will be entitled to participate therein at its own expense, and after notice from the indemnified party to the indemnifying party, may elect to assume the defense thereof provided that following such notice the indemnifying party will not be liable to the indemnified party under this Section 7.8 for any legal or any other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless incurred at the written request of the indemnifying party. Notwithstanding the above, the indemnified party will have the right to employ counsel of its own choice in any action or proceeding (and be reimbursed by the indemnifying party for the reasonable fees and expenses of the counsel and other reasonable costs of the defense) if representation of the indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests or conflicts between the indemnified party and the indemnifying party, or between the indemnified party and any other party represented by the counsel in the action or proceeding or the indemnifying party shall have failed to promptly assume the defense of such proceeding. An indemnifying party will not be liable to any indemnified party for any settlement or entry of judgment concerning any action or proceeding effected without the consent of the indemnifying party, which consent shall not be unreasonably withheld, and no indemnifying party will consent to the entry of any judgment or enter into any settlement which imposes any future obligations on the indemnified party or which does not include as an unconditional term thereof the giving by the claimant to such indemnified party of a release from all liability in respect of all claims that are the subject of such action or proceeding.

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(g) If the indemnification provided for in this Section 7.8 is held by a court of competent jurisdiction to be unavailable under applicable law to an indemnified party in respect of any Losses, then each applicable indemnifying party, in lieu of indemnifying the indemnified party, will contribute to the amount paid or payable by the indemnified party as a result of the Losses in the proportion as is appropriate to reflect the relative fault of the indemnified party, on the one hand, and of the indemnifying party, on the other, in connection with the Losses, as well as any other relevant equitable considerations including the relative benefits to the parties. The relative fault of the indemnified party, on the one hand, and of the indemnifying party, on the other, will be determined by reference to, among other things, whether an untrue or alleged untrue statement of a material fact or an omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the statement or omission. The amount paid or payable by a party as a result of the Losses referred to above will be deemed to include, subject to the limitations set forth in Section 7.8(f), any legal or other fees or expenses reasonably incurred by the party in connection with investigating or defending any action or claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person that is not guilty of fraudulent misrepresentation. In no event will a Holder be liable under this Section 7.8 for any amount in excess of the net proceeds received by the Holder in connection with its sale of Registrable Securities.

(h) Subject to the terms of this Agreement, all fees and expenses of the indemnified Party required to be reimbursed hereunder shall be paid to the indemnified Party, as incurred, within twenty (20) days of written notice thereof to the indemnifying Party, provided, that the indemnified Party shall promptly reimburse the indemnifying Party for that portion of such fees and expenses applicable to such actions for which such indemnified Party is finally judicially determined to not be entitled to indemnification hereunder.

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(i) For the avoidance of doubt, any right of a Purchaser or Holder to indemnification pursuant to this Section 7.8 shall survive the transfer of Shares or Registrable Securities by such Purchaser or Holder.

Section 7.9 Amended and Restated Charter. The Company shall prepare an information statement on Schedule 14C to notify the holders of the Company’s Common Stock of the action taken by written consent of the holders of a majority of such shares of Common Stock to approve the Restated Charter. The Company shall cause a preliminary Schedule 14C to be filed with the Commission no later than three (3) business days following the Closing Date, and the Company shall use its best efforts to cause the final Schedule 14C to be sent to the holders of the Company’s Common Stock by no later than one (1) business day following (i) the expiration of the ten (10) day comment period for the Commission, if there are no comments from the staff of the Commission, or (ii) the day on which the staff of the Commission clears any comments. The Company shall also take such other actions as may be reasonably necessary to cause the Restated Charter to be filed with the Delaware Secretary of State and to become effective as soon as possible following the expiration of the 20 day period in Rule 14c-2(b) promulgated under the Exchange Act, and in any event within one (1) business day thereafter. Promptly following the effectiveness of the Restated Charter, and in any event within one (1) business day thereafter, the Company shall sell to any Purchaser (or any Affiliate of a Purchaser) designated in writing by all Purchasers one share of Special Stock authorized under the Charter Amendment for the par value of such share ($.01), payable in cash (it being acknowledged and agreed that such consideration has been received by the Company and no actions or events other than the filing of the Restated Charter need to be taken or to occur in order for the Special Stock to be issued to the Purchaser designee). Purchasers, on behalf of themselves and any Affiliate of a Purchaser designated to acquire the Special Stock, hereby acknowledge and agree that (and any such Affiliate so designated shall sign a joinder (a “Joinder”) acknowledging and agreeing that) the Special Stock shall not be transferable (including by sale, pledge or other disposition), the Company and its transfer agent shall not register any transfer of the Special Stock, and any attempted transfer shall be null and void ab initio, in each case other than any such transfer among Purchaser or its Affiliates (provided, that as a condition of any such transfer among Purchaser or its Affiliates, the transferee shall sign a Joinder). The Company shall take such other actions as may be reasonably necessary to seat the director designated by the holder of the Special Stock as soon thereafter as possible, and in any event within three (3) business days of the date on which such director was designated. Until such director has been seated, the Purchasers shall be entitled to designate a representative who shall have the right to participate as a non-voting observer in all meetings of the Board of Directors and committees thereof and receive all information and communications received by members of the Board of Directors and committees thereof.

Section 7.10 Certain Fees. Each party shall be responsible for any fees and expenses incurred by it in connection with the negotiation and delivery of this Agreement; provided, however, that, subject to the occurrence of the Closing, the Company will pay the reasonable fees and expenses of Kramer, Levin, Naftalis & Frankel LLP, special counsel for the Purchasers, associated with the negotiation and delivery of this Agreement, not to exceed $20,000.

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Article 8
[Intentionally Omitted]

Article 9
LEGENDS

Section 9.1 Legends. Each Purchaser acknowledges that the certificates evidencing the Shares shall bear the following, or substantially similar, legends and such other legends as may be required by state securities or “blue sky” laws:

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES OR “BLUE SKY” LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS, OR (2) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS.

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF A STOCK PURCHASE AGREEMENT, DATED AS OF OCTOBER 1, 2013, BY AND AMONG THE COMPANY AND THE OTHER PARTIES THERETO. A COPY OF SUCH AGREEMENT IS ON FILE AT THE OFFICES OF THE COMPANY AND MAY BE OBTAINED BY THE HOLDER UPON WRITTEN REQUEST TO THE COMPANY.”

A copy of this Agreement shall be filed with the Secretary of the Company and shall be kept at its principal executive office. If requested by a Holder, the Company shall cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing all or a portion of the Registrable Securities to be delivered to a transferee pursuant to the Registration Statement or pursuant to an exemption under the applicable securities laws, which certificates, shall be free, to the extent permitted under law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names any such Holders may reasonably request.

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Article 10
TERMINATION

Section 10.1 Termination. This Agreement may be terminated at any time prior to the Closing:

(a) by mutual written agreement of the Company and Purchasers;

(b) by Purchasers, on the one hand, or the Company, on the other hand, if a court of competent jurisdiction or a governmental, regulatory or administrative agency or commission shall have issued a non-appealable final order, decree or ruling or taken any other action having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement;

(c) by Purchasers (provided that no Purchaser is then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement), in the event of a material breach by the Company of any representation, warranty, covenant or other agreement contained in this Agreement that cannot be or has not been cured within ten (10) days after the giving of written notice to the Company of such breach;

(d) by the Company (provided that the Company is not then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement), in the event of a material breach by any Purchaser of any representation, warranty, covenant or other agreement contained in this Agreement that cannot be or has not been cured within ten (10) days after the giving of written notice to such Purchaser of such breach;

(e) by Purchasers, provided that no Purchaser is then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement, if all the conditions in Article 3 have not been satisfied or waived by October 8, 2013; or

(f) by the Company, provided that the Company is not then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement, if all the conditions in Article 4 have not been satisfied or waived by October 8, 2013.

Section 10.2 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 10.1, this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto (or any stockholder, director, officer, partner, employee, agent, consultant or representative of such party); provided, however, that nothing contained in this Agreement shall relieve any party from liability for any breach of this Agreement.

Article 11
MISCELLANEOUS

Section 11.1 Notices. Any notice or other communication given hereunder by any party hereto to any other party hereto shall be in writing and delivered personally or by facsimile transmission or sent by registered or certified mail or by any express mail or overnight courier service, postage or fees prepaid at the address below or such other address as such party may designate in accordance with the procedures of this Section 11.1:

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If to the Company:

Trinity Place Holdings Inc.

One Syms Way

Secaucus, New Jersey 07094

Attention:	Richard G. Pyontek
	Chief Financial Officer, Treasurer and Secretary
Facsimile:	(201) 902-9270

With a copy to:

Munger, Tolles & Olson LLP

355 South Grand Avenue, 35^th Floor

Los Angeles, California 90071-1560

Attention:	Brett J. Rodda
Facsimile:	(213) 683-4061

If to Purchasers:

To the names and addresses on Exhibit A.

With a copy to:

Kramer, Levin, Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, NY 10036

Attention:	John Bessonette
Facsimile:	(212) 715-9352

Any notice that is delivered personally or by facsimile transmission in the manner provided herein shall be deemed to have been duly given to the party to whom it is directed upon actual receipt by such party. Any notice that is addressed and mailed or sent by courier in the manner herein provided shall be conclusively presumed to have been duly given to the party to which it is addressed at the close of business, local time of the recipient, on the fourth business day after the day it is so placed in the mail or, if earlier, the time of actual receipt.

Section 11.2 Successors and Assigns. Subject to Section 7.7(g), this Agreement will be binding upon and inure to the benefit of the parties hereto and to their respective heirs, legal representatives, successors and permitted assigns.

Section 11.3 Assignment. Subject to Section 7.7(g), no party hereto may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other parties; provided, however, that a Purchaser may assign its rights and delegate its obligations hereunder to an Affiliate of such Purchaser without such consent in connection with a transfer of Shares to such Affiliate.

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Section 11.4 Entire Agreement. This Agreement, the Company Disclosure Schedules and the Exhibits hereto (when executed, as applicable) set forth the entire agreement and understanding among the parties as to the subject matter hereof and merges and supersedes all prior discussions, agreements and understandings of any and every nature among them; provided that any confidentiality agreement between the Company and any of the Purchasers shall remain in effect. This Agreement may be amended only by mutual written agreement of the Company and the Purchasers, and the Company may take any action herein prohibited or omit to take any action herein required to be performed by it, and any breach of any covenant, agreement, warranty or representation may be waived, only if the Company has obtained the written consent or waiver of the Purchasers affected or potentially affected by such waiver.

Section 11.5 Governing Law; Consent to Jurisdiction; etc.

(a) Notwithstanding the place where this Agreement may be executed by any of the parties hereto, the parties expressly agree that all the terms and provisions hereof shall be construed in accordance with and governed by the laws of the State of New York without regard to that State’s conflict of laws principles. In the event that a judicial proceeding is necessary, the parties agree that the sole forum for resolving disputes arising out of or relating to this Agreement are the federal or state courts sitting in New York, New York and applying New York law, and all related appellate courts (collectively, the “Courts”), and each Purchaser irrevocably and unconditionally consents to the jurisdiction of the Courts.

(b) Each of the parties irrevocably and unconditionally consents to venue in the Courts, and irrevocably and unconditionally waives any objection to the laying of venue of any judicial proceeding in the Courts, and agrees not to plead or claim in any Court that any judicial proceeding brought in any Court has been brought in an inconvenient forum.

Section 11.6 Severability. The holding of any provision of this Agreement to be invalid or unenforceable by a court of competent jurisdiction will not affect any other provision of this Agreement, which will remain in full force and effect. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced in whole or in part, the provision will be interpreted so as to remain enforceable to the maximum extent permissible consistent with applicable law and the remaining conditions and provisions or portions thereof will nevertheless remain in full force and effect and enforceable to the extent they are valid, legal and enforceable, and no provisions will be deemed dependent upon any other covenant or provision unless so expressed herein.

Section 11.7 No Waiver. A waiver by any party of a breach of any provision of this Agreement will not operate, or be construed, as a waiver of any subsequent breach of such provision.

Section 11.8 Further Assurances. The parties agree to execute and deliver all further documents, agreements and instruments and take further action as may be necessary or appropriate to carry out the purposes and intent of this Agreement. Any documentary, stamp tax or similar issuance or transfer taxes due as a result of the conveyance, transfer or sale of the Shares between Purchasers (or any of their permitted transferees), on the one hand, and the Company, on the other hand, pursuant to this Agreement shall be borne by the Company.

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Section 11.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which will together constitute the same instrument.

Section 11.10 No Third-Party Beneficiaries. Nothing in this Agreement creates in any Person not a party to this Agreement (other than permitted assignees and a Person indemnified pursuant to Section 7.8 hereof with respect to such indemnification rights and any Holders of the Registrable Securities with respect to the rights to which they are entitled hereunder ) any legal or equitable right, remedy or claim under this Agreement, and this Agreement is for the exclusive benefit of the parties hereto. The parties expressly recognize that this Agreement is not intended to create a partnership, joint venture or other similar arrangement between any of the parties or their respective Affiliates.

Section 11.11 Remedies. Unless explicitly stated otherwise, the remedies provided herein are cumulative and not exclusive of any other remedies provided by law. In the event of a breach by the Company or by a Purchaser of any of their obligations under this Agreement, each Purchaser or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company and each Purchaser agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate.

Section 11.12 Headings. The headings in this Agreement are solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

[Remainder of page intentionally left blank.]

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IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement as of the date and year first set forth above.

Trinity Place Holdings Inc.

By:	/s/ Richard G. Pyontek
	Name:	Richard G. Pyontek
	Title:	Chief Financial Officer, Treasurer and
		Secretary

Third Avenue Trust, on behalf of Third Avenue Real Estate Value Fund

By: Third Avenue Management LLC, its investment advisor

By:	/s/ David M. Barse
	Name:	David M. Barse
	Title:	Chief Executive Officer

STOCK PURCHASE AGREEMENT

SIGNATURE PAGE

LIST OF EXHIBITS

EXHIBIT A	Purchasers
EXHIBIT B	Form of Restated Charter

Exhibit A

Name of Purchaser

Number of Shares

Address

Third Avenue Trust, on behalf of Third Avenue Real Estate Value Fund

3,369,444

622 Third Avenue

New York, NY 10017

Attn: General Counsel

EX-10.2 4 v356378_ex10-2.htm EXHIBIT 10.2

Execution Version

EMPLOYMENT AGREEMENT

This EMPLOYMENT AGREEMENT (this “Agreement”) is made as of the 1st day of October, 2013 (the “Effective Date”), by and between Trinity Place Holdings Inc., a Delaware corporation (the “Company”) and Matthew Messinger (“Executive”).

RECITALS

WHEREAS, the Company desires to employ Executive as President and Chief Executive Officer of the Company, subject to the terms and conditions of this Agreement, to provide services to the Company; and

WHEREAS, Executive desires to serve in that role as an officer of the Company.

NOW, THEREFORE, in consideration of the mutual covenants and premises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Executive hereby agree as follows:

ARTICLE I
employment and services

1.1. Employment. Beginning on the “Closing Date” under the SPA (as defined below) (the “Start Date”), Executive shall be employed by the Company as its President and Chief Executive Officer.

1.2. Duties. Executive’s duties shall be those which are usual and customary for a chief executive officer of a company the size and nature of the Company. Executive shall report directly and solely to the Company’s Board of Directors (the “Board”). Executive shall (i) devote substantially all of his working time and reasonable best efforts to the performance of his duties hereunder (excepting vacation time, holidays, sick days and periods of disability) to the duties required of him as Chief Executive Officer; (ii) use his reasonable best efforts to promote the interests of the Company and its constituencies; (iii) comply with all applicable laws, rules and regulations and with the Company’s certificate of incorporation and bylaws, as in effect from time to time, and all of the Company’s written policies, rules and/or regulations generally applicable to employees of the Company; and (iv) discharge his responsibilities in a diligent manner and in accordance with the lawful directives of the Board; provided, however, that this Section 1.2 shall not be interpreted as prohibiting Executive from managing Executive’s personal investments (so long as such investment activities are of a passive nature), engaging in charitable or civic activities, serving on corporate (if approved by the Board), civic or charitable boards or committees, delivering lectures, fulfilling speaking engagements or teaching at educational institutions, so long as such activities do not (a) materially interfere with the performance of Executive’s duties and responsibilities hereunder or (b) create a fiduciary conflict.

ARTICLE II
At-Will Employment

2.1. At-Will Employment. Executive’s employment hereunder shall be “at-will” and his employment and this Agreement may be terminated by either Executive or the Company at any time subject to the terms and conditions of Article IV. Those obligations which by their terms survive the termination of this Agreement (including, without limitation, grants and vesting of RSU Awards under Section 3.2 of ARTICLE III, payments due Executive under ARTICLE IV, Executive covenants under ARTICLE V and the indemnification and insurance provisions set forth in ARTICLE VI) shall not be extinguished by the termination of this Agreement. On or prior to the third anniversary of the Start Date, provided Executive and the Company each desire to continue Executive’s employment as CEO of the Company thereafter, Executive and the Company shall endeavor to discuss a possible amendment or restatement of this Agreement on mutually agreeable terms and conditions.

ARTICLE III
compensation

3.1. Base Salary; Discretionary Bonus; Equity Awards.

(a) Base Salary. As compensation for services to be rendered pursuant to this Agreement, the Company shall pay Executive an annual salary of Seven Hundred Thousand dollars ($700,000) (the “Base Salary”), payable in accordance with the Company’s normal business practices for senior executives (including tax withholding), but in no event less frequently than monthly. The Base Salary shall be reviewed annually for increases and may be adjusted for increase but not decrease.

(b) Discretionary Bonus. The Board may, in its sole discretion, award Executive a cash bonus, taking into account the performance of the Company and Executive for any particular year; provided, that Executive shall not be eligible to be paid any discretionary bonus during the first twelve months of his employment hereunder. Any such bonuses shall be payable within sixty (60) days after the end of the year to which such bonus relates.

3.2. Equity Awards.

(a) Subject to Executive’s continued employment with the Company on the applicable grant date (unless otherwise provided for in this Agreement), Executive shall be entitled to grants of restricted stock units (collectively, the “RSU Awards”) covering an aggregate of 2,178,570 shares of the common stock of the Company (“Common Stock”) pursuant to the terms and conditions set forth below and the restricted stock unit agreement substantially in the form attached hereto as Exhibit A (each, an “RSU Agreement”).

(i) As a material inducement to Executive’s accepting employment with the Company, upon the effectiveness of the Company’s filing of its Amended and Restated Certificate of Incorporation with the Secretary of State of Delaware (as contemplated by that certain Stock Purchase Agreement, dated as of October 1, 2013, by and among the Company and the Purchasers listed on Exhibit A thereto (the “SPA”)), Executive shall be granted a fully vested restricted stock unit award covering 250,000 shares (the “Inducement Award”). Subject to Executive’s satisfaction in full of all applicable withholding taxes, the shares subject to the Inducement Award will be distributed to Executive on the earlier of (i) the second anniversary of the date of grant and (ii) subject to Section 8.1, Executive’s termination of employment for any reason.

(ii) On or prior to March 31, 2014, Executive shall be granted a restricted stock unit award covering 476,190 shares, provided Executive has delivered to the Board a favorable resolution regarding the payment or deferral of payment to Syms and Filene’s Class 3 (Convenience Claims) and the Syms Unsecured Creditors in Syms Class 4 General Unsecured Claims and a credible plan with regard to the development, lease or sale of each of the Westbury and Paramus properties and any financing related to any such plan, in each case as determined in good faith by the Board and subject to the provisions set forth in subsection 3.2(a)(vii) below (the “3/31/2014A RSU Award”). If granted, the 3/31/2014A RSU Award shall vest in three equal annual installments beginning March 31, 2015 and ending March 31, 2017, subject to Executive’s continued employment on the applicable vesting dates other than as stated herein. Upon each vesting date, Executive’s withholding tax obligations shall be satisfied through the deduction of shares of Common Stock to which the Executive would otherwise be entitled under the applicable RSU Award; provided, however, that such shares may be used to satisfy not more than the Company’s minimum statutory withholding obligation (based on minimum statutory withholding rates for Federal and state tax purposes, including payroll taxes, that are applicable to such supplemental taxable income) (the “Net Share Settlement”) and the remaining shares of Common Stock subject to the 3/31/2014A RSU Award will be distributed to Executive within thirty (30) days (or on the sixtieth (60^th) day in connection with the acceleration of vesting of any RSU Award upon a termination of employment) following each applicable vesting date, including any accelerated vesting date. Subject to subsection 3.2(a)(vii) below, in the event all of the applicable performance conditions applicable to the 3/31/2014A RSU Award are not achieved by March 31, 2014, Executive shall not be entitled to the grant of such 3/31/2014A RSU Award.

(iii) On or prior to March 31, 2014, Executive shall be granted a second restricted stock unit award covering 363,095 shares provided that Executive has delivered to the Board a credible plan with regard to the development, lease or sale of the Trinity Place property and any financing related to any such plan, as determined in good faith by the Board and subject to the provisions set forth in subsection 3.2(a)(vii) below (the “3/31/2014B RSU Award”). If granted, 125,000 shares of the 3/31/2014B RSU Award shall vest in three equal annual installments beginning March 31, 2015 and ending March 31, 2017, subject to Executive’s continued employment on the applicable vesting dates other than as stated herein and, subject to Executive’s satisfaction in full of all applicable withholding taxes, the vested portion of the 125,000 shares of the 3/31/2014B RSU Award will be distributed to Executive upon the earlier of (i) the second anniversary of the applicable vesting date and (ii) subject to Sections 4.6 and 8.1, Executive’s termination of employment for any reason. The remaining 238,095 shares of the 3/31/2014B RSU Award shall vest in three equal annual installments beginning March 31, 2015 and ending March 31, 2017, subject to Executive’s continued employment on the applicable vesting dates other than as stated herein. Upon each vesting date, Executive’s withholding tax obligations with respect to these 238,095 shares of the 3/31/2014B RSU Award shall be satisfied through Net Share Settlement and the remainder of these shares will be distributed to Executive within thirty (30) days (or on the sixtieth (60^th) day in connection with the acceleration of vesting of any RSU Award upon a termination of employment) following each applicable vesting date, including any accelerated vesting date. Subject to subsection 3.2(a)(vii) below, in the event all of the applicable performance condition(s) applicable to the 3/31/2014B RSU Award are not achieved by March 31, 2014, Executive shall not be entitled to the grant of such 3/31/2014B RSU Award.

(iv) On or prior to December 31, 2014, Executive shall be granted a restricted stock unit award covering 363,095 shares, provided Executive has delivered to the Board a favorable resolution regarding the payment or deferral of payment to Filene’s Class 4A and B General Unsecured (Short-Term) Claims and Filene’s Class 5A and B General Unsecured (Long-Term) Claims, a credible plan with regard to the development, lease or sale of each of the West Palm and Seacaucus properties and any financing related to any such plan, and a progress report on the resolution of the Trinity Place property as previously directed by the Board, each as determined in good faith by the Board and subject to the provisions set forth in subsection 3.2(a)(vii) below (the “12/31/2014 RSU Award”). If granted, 125,000 shares of the 12/31/2014 RSU Award shall vest in three equal annual installments beginning December 31, 2015 and ending December 31, 2017, subject to Executive’s continued employment on the applicable vesting dates other than as stated herein and, subject to Executive’s satisfaction in full of all applicable withholding taxes, the vested portion of the 125,000 shares of the 12/31/2014 RSU Award will be distributed to Executive upon the earlier of (i) the second anniversary of the applicable vesting date and (ii) subject to Sections 4.6 and 8.1, Executive’s termination of employment for any reason. The remaining 238,095 shares of the 12/31/2014 RSU Award shall vest in three equal annual installments beginning December 31, 2015 and ending December 31, 2017, subject to Executive’s continued employment on the applicable vesting dates other than as stated herein. Upon each vesting date, Executive’s withholding tax obligations with respect to these 238,095 shares of the 12/31/2014 RSU Award shall be satisfied through Net Share Settlement and the remainder of these shares will be distributed to Executive within thirty (30) days (or on the sixtieth (60^th) day in connection with the acceleration of vesting of any RSU Award upon a termination of employment) following each applicable vesting date, including any accelerated vesting date. Subject to subsection 3.2(a)(vii) below, in the event all of the performance conditions applicable to the 12/31/2014 RSU Award are not achieved by December 31, 2014, as determined by the Board in good faith, Executive shall not be entitled to the grant of the 12/31/2014 RSU Award.

(v) On or prior to March 31, 2015, Executive shall be granted a restricted stock unit award covering 363,095 shares (the “3/31/2015 RSU Award”). 125,000 shares of the 3/31/2015 RSU Award shall vest in three equal annual installments beginning March 31, 2016 and ending March 31, 2018, subject to Executive’s continued employment on the applicable vesting dates other than as stated herein and, subject to Executive’s satisfaction in full of all applicable withholding taxes, the vested portion of the 125,000 shares of the 3/31/2015 RSU Award will be distributed to Executive upon the earlier of (i) the second anniversary of the applicable vesting date and (ii) subject to Sections 4.6 and 8.1, Executive’s termination of employment for any reason. The remaining 238,095 shares of the 3/31/2015 RSU Award shall vest in three equal annual installments beginning March 31, 2016 and ending March 31, 2018, subject to Executive’s continued employment on the applicable vesting dates other than as stated herein. Upon each vesting date, Executive’s withholding tax obligations with respect to these 238,095 shares of the 3/31/2015 RSU Award shall be satisfied through Net Share Settlement and the remainder of these shares will be distributed to Executive within thirty (30) days (or on the sixtieth (60^th) day in connection with the acceleration of vesting of any RSU Award upon a termination of employment) following each applicable vesting date, including any accelerated vesting date.

(vi) On or prior to December 31, 2015, upon payments of the Initial Majority Shareholder Payment and the Subsequent Majority Shareholder Payment on or prior to December 31, 2015, Executive shall be granted a restricted stock unit award covering 363,095 shares (the “12/31/2015 RSU Award”). If granted, 125,000 shares of the 12/31/2015 RSU Award shall vest in three equal annual installments beginning December 31, 2016 and ending December 31, 2018, subject to Executive’s continued employment on the applicable vesting dates other than as stated herein and, subject to Executive’s satisfaction in full of all applicable withholding taxes, the vested portion of the 125,000 shares of the 12/31/2015 RSU Award will be distributed to Executive upon the earlier of (i) the second anniversary of the applicable vesting date and (ii) subject to Sections 4.6 and 8.1, Executive’s termination of employment for any reason. The remaining 238,095 shares of the 12/31/2015 RSU Award shall vest in three equal annual installments beginning December 31, 2016 and ending December 31, 2018, subject to Executive’s continued employment on the applicable vesting dates other than as stated herein. Upon each vesting date, Executive’s withholding tax obligations with respect to these 238,095 shares of the 12/31/2015 RSU Award shall be satisfied through Net Share Settlement and the remainder of these shares will be distributed to Executive within thirty (30) days (or on the sixtieth (60^th) day in connection with the acceleration of vesting of any RSU Award upon a termination of employment) following each applicable vesting date, including any accelerated vesting date. In the event the performance condition applicable to the 12/31/2015 RSU Award is not achieved by December 31, 2015, Executive shall not be entitled to the grant of the 12/31/2015 RSU Award. Capitalized terms used in this Section 3.2(a)(vi) but not defined herein shall have the meaning attributed to them by the Modified Second Amended Joint Chapter 11 Plan of Reorganization of Syms Corp. and its Subsidiaries, dated July 13, 2012 (the “Plan of Reorganization”).

(vii) Notwithstanding any contrary provisions herein or elsewhere, with respect to any RSU Awards subject to performance conditions, Executive shall deliver to the Board the requisite favorable resolution or credible plan, as applicable, no later than thirty (30) days prior to the final grant date for such RSU Award provided for herein, and the Board shall either accept such resolution or plan, as applicable, in which case the relevant RSU Award shall be granted on the scheduled grant date, or reject such resolution or plan as being either unfavorable or not credible, as applicable, in which case the Board shall provide Executive with a detailed written explanation as to why such resolution and/or plan is, in the Board’s good faith opinion, unfavorable or not credible. Executive shall have forty-five (45) days from the receipt of such notice to cure such resolution or plan to the Board’s good faith satisfaction. For purposes of this Section 3.2, any “good faith” determination by the Board shall take into consideration the relevant time period available to Executive to satisfy the applicable performance conditions and any other reasonable factors that are not directly within Executive’s control

(b) Change in Control. In the event Executive’s employment hereunder is terminated pursuant to Section 4.4 within sixty (60) days prior to or within twelve (12) months following a Change in Control, subject to Section 4.6 and to the extent Executive has not been granted all the RSU Awards, Executive shall be entitled to (i) the grant and immediate vesting of any RSU Award that has not been granted as of the date of termination and such award shall be immediately vested as of the date of termination and (ii) the payments due Executive under ARTICLE IV. If applicable, the provisions of subsection 3.2(b)(i) shall replace and supersede the provisions relating to RSU Awards contained in Section 4.4(c).

(i) For purposes of this Agreement, “Change in Control” shall mean the first occurrence of any of the following events:

(A) The consummation of a transaction or series of transactions whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended from time to time (the “Exchange Act”) (other than the Company, any of its parents or subsidiaries, an employee benefit plan maintained by the Company or any of its parents or subsidiaries, a “person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company, or any current stockholders who have filed a Schedule D or Schedule G with the Securities Exchange Commission) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than fifty percent (50%) of the total combined voting power of the Company's securities outstanding immediately after such acquisition; or

(B) The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions (it being understood that a sale of the Company’s properties pursuant to the Plan of Reorganization to pay obligations under such plan shall not constitute a Change in Control) or (z) the acquisition of assets or stock of another entity, in each case, other than a transaction:

(1) Which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”)), directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and

(2) After which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this Section 3.2(b)(i)(B)(2) as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction.

3.3. Fringe Benefits. Executive shall be eligible to participate in all fringe benefits, perquisites, and such other benefit plans and arrangements as are made available generally to the Company’s senior executives and on terms and conditions no less favorable than those generally made available to other senior executives of the Company. The benefits described herein shall be subject to the applicable terms of the applicable plans and shall be governed in all respects in accordance with the terms of such plans as from time to time in effect. Nothing in this Section 3.3, however, shall require the Company to maintain any benefit plan or provide any type or level of benefits to its current or former employees, including Executive.

3.4. Expenses. The Company shall reimburse Executive for any and all expenses reasonably incurred by Executive in performing Executive’s duties hereunder, including reasonable use of a car service to and from the Company’s Seacaucus office, upon submission by Executive of vouchers or receipts and in compliance with such rules and policies relating thereto as the Company may from time to time adopt. Executive agrees to promptly submit and document any reimbursable expenses in accordance with the Company’s expense reimbursement policies to facilitate the timely reimbursement of such expenses. In addition, without limiting the indemnification provisions set forth in ARTICLE VI, the Company shall also pay or reimburse Executive for all reasonable legal fees and other expenses incurred by him in connection with the review and negotiation of this Agreement up to Fourteen Thousand Five Hundred dollars ($14,500).

ARTICLE IV
termination of eMPLOYment

4.1. General. Executive’s employment hereunder and this Agreement may be terminated by the Company or Executive as provided in this ARTICLE IV. Upon a termination of Executive’s employment hereunder, unless requested otherwise by the Company, Executive shall resign each position (if any) that he then holds as an officer of the Company or as an officer or director of any of the Company’s affiliates. Upon any termination of Executive’s employment hereunder, Executive shall be entitled to receive the following: (a) any accrued but unpaid Base Salary; (b) reimbursement for expenses incurred by Executive prior to the date of termination; (c) vested benefits, if any, to which Executive may be entitled under the Company’s employee benefit plans as of the date of termination; and (d) any additional amounts or benefits due under any applicable plan, program, agreement or arrangement of the Company or its affiliates (the amounts and benefits described in clauses (a) through (d) above, collectively, the “Accrued Benefits”).

4.2. Death or Disability. Executive’s employment hereunder shall terminate automatically as of the date of Executive’s death, and the Company may, at its option, exercised by notice to Executive, terminate his employment in the event of Executive’s “Disability” (as hereinafter defined). In the event that Employee’s employment is terminated by reason of Executive’s death or Disability, the portion of any outstanding RSU Awards granted prior to the date of termination that would have vested during the 12-month period immediately following such termination, but for the fact of Executive’s termination by reason of his death or Disability, shall immediately vest and, subject to Section 8.1, become payable on the 60^th day following the date of termination. In the event of termination for death or Disability, the Company shall have no further obligations or liabilities to Executive hereunder except for payment of his Accrued Benefits and as set forth in the preceding sentence. For purposes of this Agreement, the term “Disability” means any physical or mental illness, disability or incapacity which, in the good faith determination of a qualified, independent physician selected and paid by the Company, prevents Executive from performing the essential functions of the President and Chief Executive Officer for a period of not less than ninety (90) consecutive days (or for shorter periods totaling not less than one hundred and twenty days in any 365-day period).

4.3. Cause. The Company may, at its option, exercised by notice to Executive, terminate his employment for “Cause” (as hereinafter defined) when Cause exists, which notice will include a statement of the anticipated date of termination and a detailed basis for such termination for Cause. In the event of termination for Cause, the Company shall have no further obligations to Executive hereunder except for payment of Accrued Benefits. For purposes of this Agreement, the term “Cause” means: (a) any felony criminal conviction of Executive; (b) any willful failure of Executive to substantially perform his duties (other than as a result of Executive’s Disability) which failure continues for more than ten business days after a written demand for performance is delivered to Executive by the Board, which demand specifically identifies the alleged failure to perform; (c) a willful act of fraud or dishonesty by Executive in the performance of his duties that has an impact on the financial reporting of the Company; or (d) a willful and material breach of any of the provisions of ARTICLE V. For purposes of this Section 4.3, no act, or failure to act, by Executive will be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that the action or omission was in the best interests of the Company. Notwithstanding anything herein to the contrary, Executive shall not be deemed to have been terminated for Cause without an opportunity for him, together with his counsel, to be heard before the Board during the ten business day period preceding the anticipated date of termination. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by Executive in good faith and in the best interests of the Company and shall not be a basis for a termination for Cause.

4.4. Termination Other Than For Cause or For Good Reason. In the event the Company terminates Executive’s employment other than for Cause, death or Disability or if Executive terminates employment for “Good Reason”, subject to Section 4.6, Executive shall be entitled to (a) a lump sum payment of six months Base Salary for each full twelve month period employed hereunder (the “Severance Amount”), provided that the minimum Severance Amount shall be $350,000 and the maximum Severance Amount shall be $1,400,000, payable on the 60^th day following termination of employment, (b) acceleration of vesting of any unvested RSU Awards that have been granted as of the date of termination and acceleration of vesting of any other equity awards that have been granted as of the date of termination, (c) to the extent Executive has not been granted all the RSU Awards set forth in Section 3.2, the grant and immediate vesting of restricted stock units covering 363,095 shares of Common Stock (839,285 shares of Common Stock if such termination occurs prior to March 31, 2014) and (d) for eighteen (18) months after the date of termination, payment of an amount equal to the monthly premium for COBRA continuation coverage under the Company’s health, dental and vision plans. In connection with a Change in Control, subsection (c) in the immediately preceding sentence shall be replaced and substituted by the provisions of Section 3.2(b)(i), if applicable. For the avoidance of doubt, except as otherwise provided herein and in Section 3.2(b)(i), Executive shall not have any right to the grant, vesting or payment of any RSU Awards that have not been granted as of the date of termination. For purposes of this Agreement, “Good Reason” shall mean the occurrence, without the express prior written consent of Executive, of any of the following events: (i) the failure by the Company to pay Executive any portion of Executive’s Base Salary within ten (10) days of the date such compensation is due or failure to grant any RSU Awards or deliver related shares as set forth herein; (ii) any reduction in Base Salary; (iii) any material diminution or adverse change by the Company to Executive’s title, position, authority or reporting relationship with the Company; (iv) the relocation of Executive’s principal location of employment to a location more than thirty (30) miles from his principal location of employment as of the Effective Date, except for required travel for Company business; or (v) any material breach by the Company of any of its obligations to Executive in this Agreement or in any RSU Agreement. Notwithstanding the foregoing, “Good Reason” to terminate Executive’s employment shall not exist unless (x) a written notice has first been delivered to the Board by Executive, which notice (1) specifically identifies the event(s) Executive believes constitutes Good Reason and (2) provides thirty (30) days from the date of such notice for the Company to cure such circumstances and (y) the Company has failed to timely cure such circumstances. If the Company fails to timely cure such circumstances in accordance with the foregoing, Executive’s employment hereunder shall thereupon be terminated for Good Reason. If any notice to the Board shall not have been delivered by Executive within ninety (90) days following the date Executive becomes aware of the purported existence of a Good Reason event, then any purported termination of Executive’s employment relating to the applicable event shall not be a termination for Good Reason, under this Agreement.

4.5. Voluntary Termination without Good Reason. Executive may, at his option, upon at least thirty (30) days’ prior written notice to the Company, terminate his employment hereunder without Good Reason, in which case, Executive shall only be entitled to the Accrued Benefits.

4.6. Release of Claims. Payment of the Severance Amounts and/or the accelerated vesting and payment of the RSU Awards specified in Sections 3.2(b) and 4.4 shall be contingent on Executive’s execution of a release, in the form attached hereto as Exhibit B (the “Release”), and the lapse of any statutory period for revocation, and such Release becoming effective in accordance with its terms on or before the sixtieth (60^th) day following the date of termination. Any severance benefit to which Executive otherwise would have been entitled during such sixty (60) day period shall, subject to Section 8.1, be paid or distributed by the Company in full arrears on the sixtieth (60^th) day following Executive’s date of termination or such later date as is required to avoid the imposition of additional taxes under Section 409A of the Internal Revenue Code (“Section 409A”). Failure to satisfy the conditions of this Section 4.6 shall result in the forfeiture of the Severance Amount, payment of the COBRA premiums, and the accelerated grant, vesting and/or payment of the RSU Awards specified in Sections 3.2(b) and 4.4.

ARTICLE V
executive COVENANTS

5.1. Confidential Information. Other than in the course of Executive’s good faith performance of Executive’s duties for the benefit of the Company, Executive agrees to keep secret and retain in the strictest confidence all confidential or proprietary matters which relate to the Company or any of its affiliates learned by Executive in the course of providing services hereunder (except for disclosures that are approved by the Board, that are required by any governmental or judicial authority, or that are made in the ordinary course of the Company’s business). Such confidential or proprietary information includes, but is not limited to, market information, financial information, operating information, processes, formulae, trade secrets, information relating to the business, properties and prospects, pricing information, marketing plans, current strategies, intellectual property, and contractual relationships; provided, however, there shall be no obligation hereunder with respect to, information that (i) is generally available to the public on or prior to the Effective Date, (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, or (iii) is required to be disclosed by law, regulation, court order or other legal process and Executive gives the Company prompt written notice of the receipt thereof to the extent reasonably possible and the opportunity to seek a protective order. Upon request by the Company at any time (including, without limitation, at or following termination of employment), Executive agrees to deliver promptly to the Company all memoranda, notes, records, reports, manuals, drawings, designs, computer files in any media and other documents (and all copies) relating to the business of the Company or any of its affiliates Executive has under his control; provided, however, that Executive may retain or make copies of any memoranda, notes, records, reports, manuals, drawings, designs, computer files which may reasonably be necessary for his tax and other personal financial affairs and for him to be reasonably able to protect and enforce his rights under this Agreement.

5.2. Disparaging Comments. Executive agrees not to make critical, negative or disparaging remarks about the Company or any of its affiliates, including, but not limited to, comments about any of its assets, services, management, business or employment practices; provided, that the foregoing will not prevent Executive from (i) making any truthful statement to the extent, but only to the extent (x) necessary with respect to any litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement, in the forum in which such litigation, arbitration or mediation properly takes place or (y) required by law, legal process or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction over Executive, (ii) making any statements in the good faith performance of Executive’s duties to the Company and (iii) rebutting any statements made by the Company or its affiliates or their respective officers, directors, employees or other service providers.

5.3. Non-Competition. During Executive’s employment hereunder, and, in the event Executive’s employment is terminated pursuant to Sections 4.3, 4.4 or 4.5, for a period of one (1) year following termination of employment, Executive will not, directly or indirectly, through any affiliated entities or otherwise, invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name or any similar name to, lend Executive’s credit to, or render services or advice to, any “Competitive Business”; provided, that, (i) Executive (together with his affiliated entities) may purchase or otherwise acquire a passive investment in the aggregate up to (but not more than) two percent (2%) of the equity securities of a company conducting a Competitive Business (but without Executive otherwise participating in the activities of such company) if such securities are listed on a national securities exchange and (ii) Executive may provide services to a subsidiary, division or unit of any entity engaged in a “Competitive Business” where less than five percent (5%) of the gross operating revenues in the prior fiscal year of such competitive entity (at the date of commencement of employment with such entity) were received from any “Competitive Business” or where less than five percent (5%) of the total assets of such competitive entity are utilized in any “Competitive Business”, whichever is greater, and so long as Executive does not provide material services to such subsidiary, division or unit. For purposes of this Agreement “Competitive Business” shall mean any business engaged in any real estate development or leasing project anywhere in lower Manhattan in the City of New York City (i.e., below Chambers Street).

5.4. Non-Solicitation. For a period of one (1) year following termination of employment for any reason, Executive will not, directly or indirectly, through any affiliated entities or otherwise, (a) induce or attempt to induce any employee of the Company to leave the employ of the Company or terminate his or her relationship with the Company other than through general advertising which is not specifically targeted to such employees, (b) in any way interfere with the relationship between the Company and any such employee, (c) induce or attempt to induce any customer, supplier, licensee, or business relation of the Company to cease doing business with the Company, or (d) in any way interfere with the relationship between the Company and any such customers, suppliers, licensees, or business relations. Notwithstanding the foregoing, the restrictions in this Section 5.4 shall not apply with regard to (i) general solicitations that are not specifically directed to employees of the Company or any affiliate, (ii) serving as a reference at the request of an employee or (iii) actions taken in the good faith performance of Executive’s duties for the benefit of the Company.

5.5. Enforcement. If Executive commits a material breach of any of the provisions of Sections 5.1 through 5.4, the Company will be entitled to any or all of the following remedies: (i) to seek injunctive or other equitable relief to restrain any breach or threatened breach or otherwise to specifically enforce the provisions of Sections 5.1 through 5.4 (without being required to post a bond or any other security in connection with seeking such injunctive or equitable relief), it being agreed that money damages alone would be inadequate to compensate the Company and would be an inadequate remedy for such breach; and (ii) any other rights and remedies the Company may have pursuant to applicable laws.

ARTICLE VI
indemnification

6.1. Indemnification Generally. The Company shall indemnify and hold harmless Executive, to the fullest extent permitted by Delaware law as it presently exists or may hereafter be amended, to the extent he is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he has entered into this Agreement or that he is or was serving as an officer (including, without limitation, to the extent that he is or was serving at the request of the Company as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise, nonprofit entity or other entity, including service with respect to employee benefit plans), against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by him. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3 with respect to an action brought by Executive to recover an unpaid indemnification or advancement claim to which he is entitled, the Company shall be required to indemnify Executive in connection with a Proceeding (or part thereof) commenced by him only if the commencement of such Proceeding (or part thereof) by him was authorized in the specific case by the Board.

6.2. Advancement of Expenses. The Company shall to the fullest extent not prohibited by Delaware law pay the reasonable expenses (including attorneys’ fees) incurred by Executive in defending any Proceeding in advance of its final disposition; provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by Executive to repay all amounts advanced if it should be ultimately determined that he is not entitled to be indemnified hereunder.

6.3. Unpaid Claims. If a claim for indemnification under this ARTICLE VI (following the final disposition of such Proceeding) is not paid in full within sixty days after the Company has received a claim therefor by Executive, or if a claim for any advancement of expenses under this ARTICLE VI is not paid in full within thirty days after the Company has received a statement or statements requesting such amounts to be advanced, Executive shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim. If successful in whole or in part, Executive shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action, the Company shall have the burden of proving that Executive is not entitled to the requested indemnification or advancement of expenses under applicable law.

6.4. Insurance. For a period of six (6) years following Executive’s termination of employment, the Company or any successor to the Company shall purchase and maintain, at its own expense, directors’ and officers’ liability insurance providing coverage to Executive on terms that are no less favorable than the coverage provided to any other senior executives of the Company.

ARTICLE VII
COMPANY COVENANTs

7.1. Reservation of Equity Pool. In connection with a future transaction or series of transactions whereby the Company sells equity securities of the Company to any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (the “Future Equity Sale”), it being understood that the transactions contemplated by the SPA shall not constitute a Future Equity Sale, the Company hereby covenants that it shall, immediately following the closing of a Future Equity Sale, reserve a pool of shares of Common Stock for the grant of equity awards to key employees of the Company, including Executive.

7.2. Executive Equity Awards. Upon closing of a Future Equity Sale, the Company shall consider making a new equity award to Executive which award will take into account the terms and conditions of the Future Equity Sale. The new equity award shall endeavor to maintain Executive’s ownership interest in the Company at a meaningful and material level.

7.3. Registration. In the event that the Company files a shelf registration statement or other resale registration statement with the Securities and Exchange Commission, it shall include Executive as a selling shareholder with respect to the equity he has been granted to date, and also with respect to equity that he will be granted in the future (in each case to the extent that it is eligible to be included on such registration statement), subject to reasonable and customary terms and conditions applicable to re-sales by a corporate officer.

ARTICLE VIII
miscellaneous

8.1. Section 409A. Anything in this Agreement to the contrary notwithstanding, if at the time of Executive’s separation from service within the meaning of Section 409A, the Company determines that Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i), then to the extent any payment or benefit that Executive becomes entitled to under this Agreement on account of Executive’s separation from service would be considered “non-qualified deferred compensation” otherwise subject to the twenty percent (20%) additional tax imposed pursuant to Section 409A(a) as a result of the application of Section 409A(a)(2)(B)(i), such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after Executive’s separation from service, or (B) Executive’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 8.1 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed on the first business day following the expiration of the Delay Period to Executive in a lump sum (without interest) and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.

(a) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

(b) To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A, and to the extent that such payment or benefit is payable upon Executive’s termination of employment, then such payments or benefits shall be payable only upon Executive’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).

(c) The parties intend that this Agreement will be administered in accordance with Section 409A. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.

(d) The Company makes no representation or warranty and shall have no liability to Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A but do not satisfy an exemption from, or the conditions of, such Section.

8.2. No Mitigation or Offset. In the event of any termination of Executive’s employment hereunder, Executive shall be under no obligation to seek other employment or take any other action to otherwise mitigate the amounts payable to Executive or any obligations of the Company under this Agreement, and there shall be no offset against amounts due Executive under this Agreement on account of future earnings by Executive or as a result of employment by a subsequent employer. The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against Executive or others.

8.3. Voluntary Nature. Executive represents, warrants and acknowledges that he is voluntarily agreeing to the provision of services pursuant to this Agreement and that he has agreed to provide such services. Executive has been urged to, and hereby represents, warrants and acknowledges that he has had the opportunity to, obtain the advice of his own attorney prior to executing and delivering this Agreement.

8.4. Notice. Any notice required or permitted to be given under this Agreement shall be sufficient if it is in writing and is delivered in person or sent by overnight courier to, addressed as follows:

If to Executive:

At the address (or to the email address) shown on the records of the Company.

with a copy to (which copy will not constitute notice):

Proskauer Rose LLP
Eleven Times Square
New York, New York 10036-8299
Attn: James E. Gregory, Esq.

If to the Company:

Trinity Place Holdings Inc.
One Syms Way
Secaucus, New Jersey 07094
Attn: Chief Financial Officer

with copies to (which copies will not constitute notice):

Trinity Place Holdings Inc.
One Syms Way
Secaucus, New Jersey 07094
Attn: Independent Director

Munger Tolles & Olson LLP
355 South Grand Avenue
Los Angeles, California 90071
Attn: Brett J. Rodda, Esq.

Notice shall be deemed effective upon receipt if made by personal delivery or upon deposit if sent by overnight courier.

8.5. Non-Assignability. Neither of the parties hereto shall have the right to assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party.

8.6. Applicable Law. Except for the indemnification provisions set forth in ARTICLE VI, which shall be governed by Delaware law without giving effect to the conflict of law rules thereof, this Agreement and the relationship of the parties in connection with the subject matter of this Agreement shall be construed and enforced according to the laws of the State of New York without giving effect to the conflict of law rules thereof.

8.7. Effect of Prior Agreements. This Agreement contains the full and complete agreement of the parties relating to the employment of Executive’s service as President and Chief Executive Officer, and supersedes all prior agreements, arrangements or understandings, whether written or oral, relating thereto with the Company or any of its affiliates. This Agreement may not be amended, modified or supplemented and no provision or requirement may be waived except by written instrument signed by the party to be charged.

8.8. Severability. Wherever possible, each provision of this Agreement will be interpreted in a manner to be effective and valid, but if any provision is held invalid or unenforceable by any court of competent jurisdiction, then such provision will be ineffective only to the extent of such invalidity or unenforceability, without invalidating or affecting in any manner the remainder of such provision or the other provisions of this Agreement.

8.9. Absence of Waiver. The failure to enforce at any time any of the provisions of this Agreement or to require at any time performance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement or any part hereof or the right of either party thereafter to enforce each and every provision in accordance with the terms of this Agreement.

8.10. Arbitration. Any dispute, disagreement or other question arising under this Agreement or the interpretation thereof shall be settled by final and binding arbitration before a single JAMS arbitrator under the Streamlined Arbitration Rules & Procedures of JAMS, then in effect, and judgment upon the award may be entered in any court having jurisdiction thereof. The Company shall be responsible for paying the fees and costs of the arbitrator along with other arbitration-specific fees; provided, however, that the responsibility for the fees and costs may be re-allocated by the arbitrator.

8.11. Third Party Beneficiaries. This Agreement is not intended to confer any benefits upon anyone other than the parties hereto.

8.12. Withholding. The Company may withhold from any amounts payable under this Agreement such Federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.

8.13. Construction. This Agreement shall be construed without regard to the party or parties responsible for the preparation of the same and shall be deemed to have been prepared jointly by the parties hereto. Any ambiguity or uncertainty existing herein shall not be interpreted against either party, but according to the application of other rules of contract interpretation, if any ambiguity or uncertainty exists.

8.14. Counterparts. This Agreement may be executed by facsimile and in counterparts, each of which shall constitute one and the same instrument.

[Remainder of Page Intentionally Left Blank.]

IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first above written.

	TRINITY PLACE HOLDINGS INC.

	By:	/s/ Richard Pyontek
	Name: Richard Pyontek
	Title: Chief Financial Officer, Treasurer and Secretary

	Matthew Messinger

	/s/ Matthew Messinger

EXHIBIT A

FORM OF RESTRICTED STOCK UNIT AGREEMENT

TRINITY PLACE HOLDINGS INC.

RESTRICTED STOCK UNIT AGREEMENT

This Restricted Stock Unit Agreement (this “Agreement”), entered into as of [insert date] (the “Grant Date”), by and between Matthew Messinger (the “Executive”) and Trinity Place Holdings Inc. (the “Company”).

WITNESSETH THAT:

WHEREAS, the Company and Executive entered into that certain Employment Agreement made as of the 1st day of October, 2013 (the “Employment Agreement”), which provides for the grant of restricted stock units covering shares of common stock of the Company (“Common Stock”), which is incorporated into and forms a part of this Agreement;

NOW, THEREFORE, IT IS AGREED, by and between the Company and Executive as follows:

1. Award. The Company hereby grants to Executive, and Executive hereby accepts, an award (the “Restricted Stock Units Award”) of [insert number of restricted stock units] restricted stock units (“Restricted Stock Units”). Each Restricted Stock Unit represents the right to receive one share of Common Stock, upon the terms and subject to the conditions set forth in this Agreement.

2. Rights as Stockholder. Except as otherwise provided herein, Executive shall not have any rights of a stockholder with respect to the Restricted Stock Units until shares of Common Stock are distributed to him in settlement of such Restricted Stock Units.

3. Vesting. [The Restricted Stock Units shall be fully vested as of the Grant Date].¹ [The Restricted Stock Units shall vest in three equal annual installments beginning [insert date] and ending [insert date], subject to Executive’s continued employment on the applicable vesting dates. In the event Executive’s employment is terminated pursuant to Sections 3.2(b) or 4.4 of the Employment Agreement, unvested Restricted Stock Units shall vest in accordance with Section 4.4(b) of the Employment Agreement.]

4. Settlement.

(a) [Subject to Paragraph 9, the Restricted Stock Units shall be distributed upon the earlier of (i) the second anniversary of the Grant Date and (ii) subject to Section 8.1 of the Employment Agreement, Executive’s termination of employment.]²

¹ Vesting schedule for Inducement Award only.

² Payment schedule for Inducement Award only.

[Subject to Paragraph 9, the Restricted Stock Units that vest in accordance with Paragraph 3 on each vesting date shall be distributed within thirty (30) days (or on the sixtieth (60^th) day in connection with the acceleration of vesting of the Restricted Stock Units upon a termination of employment) following the applicable vesting date.]³

[Subject to Paragraph 9, 125,000 shares of the Restricted Stock Units that vest in accordance with Paragraph 3 on each vesting date shall be distributed upon the earlier of (i) the second anniversary of the applicable vesting date and (ii) subject to Sections 4.6 and 8.1 of the Employment Agreement, Executive’s termination of employment.]⁴

(b) [Subject to Paragraph 9, the remaining 238,095 shares of the Restricted Stock Units that vest in accordance with Paragraph 3 on each vesting date shall be distributed within thirty (30) days (or on the sixtieth (60^th) day in connection with the acceleration of vesting of the Restricted Stock Units upon a termination of employment) following the applicable vesting date.]⁵

5. Termination of Employment. Upon Executive’s termination of employment with the Company, Executive shall forfeit any then unvested Restricted Stock Units (after giving effect to any accelerated vesting provided for in Paragraph 3) and such Restricted Stock Units will be cancelled for no value.

6. Adjustments to Shares. In the event of a corporate transaction involving the Company (including, without limitation, any stock dividend, stock split, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination or exchange of shares or other similar transaction), the Board of Directors of the Company (the “Board”) shall adjust Restricted Stock Units to preserve the benefits or potential benefits thereof by adjusting the number and kind of shares subject to the Restricted Stock Unit Award.

7. Section 409A. The provisions of Section 8.1 of the Employment Agreement are hereby incorporated by reference.

8. Certificates; Cash in Lieu of Fractional Shares. To the extent that this Agreement provides for issuance of certificates to reflect the payment of the Restricted Stock Unit Award, the transfer of such shares may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the rules of any securities exchange or similar entity. In lieu of issuing a fraction of a share of Common Stock pursuant to this Agreement, the Company may pay to Executive an amount in cash equal to the fair market value of such fractional share

³ Payment schedule for 3/31/2014A RSU Award.

⁴ Payment schedule for 125,000 shares of 3/31/2014B RSU Award, 125,000 shares of 12/31/2014 RSU Award, 125,000 shares of 3/31/2015 RSU Award and 125,000 shares of 12/31/2015 RSU Award.

⁵ Payment schedule for 238,095 shares of the 3/31/2014B RSU Award, 238,095 shares of 12/31/2014 RSU Award, 238,095 shares of 3/31/2015 RSU Award and 238,095 shares of 12/31/2015 RSU Award.

9. Withholding. At the time Executive recognizes taxable income with respect to the Restricted Stock Units, Executive shall pay an amount equal to the taxes the Company determines it is required to withhold under applicable tax laws with respect thereto. Executive may satisfy the foregoing requirement (i) by making a payment to the Company in cash, (ii) by delivering already owned unrestricted shares of Common Stock or (iii) by having the Company withhold a number of shares of Common Stock in which Executive is otherwise entitled under this Agreement (each of (ii) or (iii), “Share Settlement”); provided that Share Settlement shall only be permitted if it is provided for in the Employment Agreement or in satisfaction of applicable employment taxes (but not income taxes), and, if it is not so provided or in satisfaction of applicable employment taxes, then Share Settlement shall require the approval of the Board, which approval shall not be unreasonably withheld after taking into account the liquidity of the Common Stock and the Company’s available cash reserves at the time of withholding; and, provided further, that such shares may be used to satisfy not more than the Company’s minimum statutory withholding obligation (based on minimum statutory withholding rates for Federal and state tax purposes, including payroll taxes, that are applicable to such supplemental taxable income). Subject to applicable law, and provided there are no adverse accounting consequences to the Company, if available cash reserves are inadequate to permit share delivery and/or withholding at the time Executive recognizes taxable income with respect to the Restricted Stock Units, but such cash reserves become adequate within the ninety (90) day period immediately thereafter, Executive shall be permitted to deliver to the Company for cash payment shares of Common Stock during such 90 day period in an amount not to exceed Executive’s initial payment obligations pursuant to the first sentence of this section (it being understood that this sentence is not intended to change or otherwise alter the timing of such initial payment obligation).

10. Nontransferability. Neither the Restricted Stock Units nor any interest or right therein or part thereof may be sold, assigned, transferred, pledged or otherwise encumbered in any manner otherwise than by will or by the laws of descent or distribution.

11. Registration. The provisions of Section 7.3 of the Employment Agreement are hereby incorporated by reference.

12. Protections Against Violations of Agreement. No purported sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any of the Restricted Stock Units by any holder thereof in violation of the provisions of this Agreement or the Company’s certificate of incorporation or bylaws, will be valid, and the Company will not transfer any shares resulting from the settlement of Restricted Stock Units on its books nor will any of such shares be entitled to vote, nor will any dividends be paid thereon, unless and until there has been full compliance with such provisions to the satisfaction of the Company. The foregoing restrictions are in addition to and not in lieu of any other remedies, legal or equitable, available to enforce such provisions

13. Representations. Executive has reviewed with his own tax advisors the applicable tax (U.S., state, and local) consequences of the transactions contemplated by this Agreement. Executive is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. Executive understands that he (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this Agreement.

14. Investment Representation. Executive hereby represents and warrants to the Company that Executive, by reason of Executive’s business or financial experience (or the business or financial experience of Executive’s professional advisors who are unaffiliated with and who are not compensated by the Company or any affiliate or selling agent of the Company, directly or indirectly), has the capacity to protect Executive’s own interests in connection with the transactions contemplated under this Agreement.

15. Heirs and Successors. This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Company’s assets and business. If any benefits deliverable to Executive under this Agreement have not been delivered at the time of Executive’s death, such benefits shall be delivered to the beneficiary or beneficiaries designated by Executive in a writing filed with the Company in such form and at such time as the Company shall require. If a deceased Executive fails to designate a beneficiary, or if the designated beneficiary does not survive Executive, any benefits distributable to Executive shall be distributed to the legal representative of the estate of Executive.

16. Administration. The authority to manage and control the operation and administration of this Agreement shall be vested in the Board, and the Board shall have all powers with respect to this Agreement. Any interpretation of the Agreement by the Board and any decision made by it with respect to the Agreement is final and binding on all persons.

17. Employment Agreement Governs. Notwithstanding anything in this Agreement to the contrary, the terms of this Agreement shall be subject to the terms of the Employment Agreement. To the extent there is any inconsistency or conflict between the terms hereof and the terms of the Employment Agreement, the terms of the Employment Agreement shall govern.

18. Not An Employment Contract or Contract of Continued Service. The grant of Restricted Stock Units pursuant to this Agreement will not confer on Executive any right with respect to continuance of employment or other service with the Company or any affiliate, nor will it interfere in any way with any right the Company or any affiliate would otherwise have to terminate or modify the terms of such Executive’s employment or other service at any time.

19. Amendment. This Agreement may be amended by written agreement of Executive and the Company.

20. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.

21. Applicable Law. The provisions of this Agreement shall be construed in accordance with the laws of the State of New York without giving effect to the conflict of law rules thereof

22. Entire Agreement. The Employment Agreement and this Agreement constitute all of the terms with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Executive with respect to the subject matter hereof.

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Execution Version

IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first above written.

	Trinity Place Holdings Inc.

	By:
	Name: Richard Pyontek
	Title: Chief Financial Officer, Treasurer and Secretary

By accepting this Agreement, Executive acknowledges that he has received and read, and agrees that this Restricted Stock Unit Award shall be subject to, the terms of this Agreement.

	Matthew Messinger

EXHIBIT B

RELEASE

For good and valuable consideration, the undersigned, on behalf of himself, his descendants, dependents, heirs, executors, administrators, personal representatives, successors and assigns, and each of them, hereby releases, discharges and covenants not to sue Trinity Place Holdings Inc., a Delaware corporation (the “Company”), its subsidiaries and other affiliates, past and present, and each of them, as well as its and their directors, officers, agents, attorneys, insurers, employees, stockholders, representatives, successors and assigns, past and present, and each of them (the “Releasees”) with respect to and from any and all claims, fees, wages, demands, rights, liens, agreements, contracts, covenants, actions, suits, causes of action, obligations, debts, costs, expenses, attorneys’ fees, damages, judgments, orders and liabilities of whatever kind or nature in law, equity or otherwise, whether now known or unknown, suspected or unsuspected, and whether or not concealed or hidden, that he may own or hold or that he at any time owned or held or may in the future hold against any or all of the Releasees, based on, in connection with, arising out of or related to anything occurring or omitted on or prior to the date hereof, including without limitation any claim under the Civil Rights Act of 1866, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and any other claim for severance pay, bonus or incentive pay, sick leave, vacation pay, life insurance, health or medical insurance, medical expenses, or any other fringe benefit. The undersigned will defend, indemnify and hold harmless the Company and the Releasees from and against any claim (including the payment of attorneys’ fees and costs actually incurred whether or not litigation is commenced) that is directly or indirectly based on, in connection with, arising out of or related to any assignment or purported assignment of any claim or matter released by the undersigned to any other person or entity.

Notwithstanding anything to the contrary contained herein, this general release does not extend to (i) any right to indemnification that the undersigned may have under Article Ninth of the Company's Certificate of Incorporation, (ii) any rights which survive the termination of the Employment Agreement made as of the 1st day of October, 2013 by and between Trinity Place Holdings Inc. and Matthew Messinger as set forth in Section 2.1 thereof, (iii) any rights, remedies or claims the undersigned may have to receive vested amounts under any employee benefit plans and/or pension plans or programs, (iv) the undersigned’s rights to medical benefit continuation coverage, on a self-pay basis, pursuant to federal law (COBRA), (v) any rights the undersigned may have to obtain contribution as permitted by law in the event of entry of judgment against the undersigned as a result of any act or failure to act in his capacity as an employee of the Company for which the Company (or any affiliate) and the undersigned are jointly liable and (vi) any rights undersigned has as a continuing or former shareholder, member, partner or participant in the Company or any related entity or investment.

In connection with the matters released above, the undersigned specifically waives, to the fullest extent permitted by law, any benefit of any statutory or non-statutory law or public policy of any jurisdiction providing that a general release does not extend to claims which a creditor does not know or suspect to exist in his or its favor at the time of executing the release. The undersigned acknowledges and agrees that the release contained herein is intended to release any and all unknown claims and that he is hereby knowingly and voluntarily waiving any such legal or public policy benefits to the fullest extent permitted by law.

In accordance with the Older Workers Benefit Protection Act of 1990, the undersigned is hereby advised as follows:

(A) THE UNDERSIGNED HAS THE RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS RELEASE;

(B) THE UNDERSIGNED HAS TWENTY-ONE (21) DAYS TO CONSIDER THIS RELEASE BEFORE SIGNING IT; AND

(C) THE UNDERSIGNED HAS SEVEN (7) DAYS AFTER SIGNING THIS RELEASE TO REVOKE THIS RELEASE, AND THIS RELEASE WILL BECOME EFFECTIVE UPON THE EXPIRATION OF THAT REVOCATION PERIOD.

The undersigned represents and warrants that there has been no assignment or other transfer of any interest in any claim released herein which the undersigned may have against Releasees, or any of them, and the undersigned agrees to indemnify and hold Releasees, and each of them, harmless from any liability, claims, demands, damages, costs, expenses and attorneys’ fees incurred by Releasees, or any of them, as the result of any such assignment or transfer or any rights or claims under any such assignment or transfer. It is the intention of the parties that this indemnity does not require payment as a condition precedent to recovery by the Releasees against the undersigned under this indemnity.

The undersigned further understands and agrees that neither the payment of any sum of money nor the execution of this Release shall constitute or be construed as an admission of any liability whatsoever by the Releasees, or any of them, who have consistently taken the position that they have no liability whatsoever to the undersigned.

IN WITNESS WHEREOF, the undersigned has executed this Release this ____ day of ___________, ____.

Matthew Messinger