EXHIBIT 99.1
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (this "Agreement"), dated as of April 12, 2002,
is by and among GYRODYNE COMPANY OF AMERICA, INC. (the "Company"), on the one
hand, and SPECIAL K CAPITAL OFFSHORE MASTER FUND (U.S. DOLLAR), L.P. ("Special K
Fund"), K CAPITAL OFFSHORE MASTER FUND (U.S. DOLLAR), L.P. ("K Capital Fund" and
together with Special K Fund, the "K Capital Investment Funds"), K CAPITAL
PARTNERS, LLC ("K Capital"), HARWICH CAPITAL PARTNERS, LLC ("Harwich"), ▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (each of Special K Fund, K Capital Fund, K Capital,
Harwich, Messrs. ▇▇▇▇▇ and ▇▇▇▇▇▇, a "K Capital Party" and collectively, the "K
Capital Parties"), on the other hand.
RECITALS
WHEREAS, Special K Fund is the beneficial owner of 27,781 shares of the
common stock, par value $1.00 per share, of the Company (the "Common Stock") and
K Capital Fund is the beneficial owner of 181,569 shares of Common Stock;
WHEREAS, K Capital is principally engaged in the business of providing
investment management services to the K Capital Investment Funds and Harwich's
principal business is serving as managing member of K Capital.
WHEREAS, Messrs. ▇▇▇▇▇ and ▇▇▇▇▇▇ are managing members of Harwich;
WHEREAS, K Capital has notified the Company that it intends to nominate
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ for election to the Company's board of
directors at the Company's 2002 annual meeting of stockholders (the "Annual
Meeting") and has filed preliminary proxy materials with the Securities and
Exchange Commission to solicit proxies in support of its nominees;
WHEREAS, the Company and the K Capital Parties have determined that the
interests of the Company and its shareholders would best be served by avoiding
the substantial expense and disruption that could be expected to result from a
proxy contest and any related litigation;
NOW, THEREFORE, in consideration of the covenants and conditions set forth
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 TRANSFER OF SHARES. Subject to the terms and conditions of this
Agreement, at the closing referred to in Section 2.1 (the "Closing"), the K
Capital Investment Funds shall,
sell, assign, transfer, convey and deliver to the Company, and the Company shall
purchase, acquire and accept from the K Capital Investment Funds, 111,000 shares
of Common Stock (the "Shares"), free and clear of all Encumbrances.
1.2 PURCHASE PRICE. The purchase price per Share (the "Purchase Price")
shall be $20.25. The Purchase Price shall be paid by the Company at the
Closing by wire transfer of immediately available funds to Citibank, New
York, Account #388-90774.
ARTICLE II
CLOSING
2.1 DATE OF CLOSING. The Closing shall take place and may be effected
through delivery of documents via facsimile transmission on the date that this
Agreement is executed and delivered by all parties hereto. The date on which the
Closing is held is referred to in this Agreement as the "Closing Date". At the
Closing, the parties shall execute and deliver the documents referred to in
Sections 2.2 and 2.3.
2.2 DOCUMENTS TO BE DELIVERED BY THE K CAPITAL INVESTMENT FUNDS. At the
Closing, the K Capital Investment Funds shall deliver, or cause to be delivered,
to the Company the following:
(a) a Notice of Guaranteed Delivery in the form of Exhibit A hereto, duly
executed and completed.
(b) a letter from the K Capital Investment Funds to the Company in the form
of Exhibit B hereto, duly executed by the K Capital Investment Funds and dated
as of the Closing Date.
2.3 DOCUMENTS TO BE DELIVERED BY THE COMPANY. At the Closing, the Company
shall deliver to the K Capital Investment Funds the following:
(a) payment and evidence of the wire transfer referred to in Section 1.2.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE K CAPITAL PARTIES
The K Capital Parties jointly and severally represent and warrant to the
Company that:
3.1 LEGAL POWER; ORGANIZATION; QUALIFICATION. Each K Capital Party is a
natural person or a legal entity of the type set forth opposite such K Capital
Party's name on Exhibit C hereto. Each K Capital Party who is a natural person
is competent and has all requisite power and authority to execute and deliver
this Agreement and to consummate the Transactions. Each K Capital Party which is
not a natural person has been duly organized, and is validly existing and in
good standing, under the laws of its jurisdiction of formation, has all
requisite power and authority to execute and deliver this Agreement and to
consummate the Transactions,
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and has taken all necessary corporate or other action to authorize the
execution, delivery and performance of this Agreement.
3.2 AUTHORIZATION OF AGREEMENT. This Agreement has been duly executed and
delivered by each K Capital Party and, assuming due and valid authorization,
execution and delivery by the Company, this Agreement constitutes a legal, valid
and binding obligation of each K Capital Party, enforceable against such K
Capital Party in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws of general application affecting enforcement of creditors'
rights generally and (ii) the availability of the remedy of specific performance
or injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought.
3.3 NO CONFLICTS. Neither the execution and delivery of this Agreement nor
the consummation by any K Capital Party of any of the Transactions will result
in a violation of, or a default under, or conflict with, or require any consent,
approval or notice under, any governing or constitutional document (if such K
Capital Party is not a natural person), contract, trust, commitment, agreement,
obligation, understanding, arrangement or restriction of any kind to which any K
Capital Party is a party or by which any K Capital Party is bound or to which
the Shares are subject. Consummation by each K Capital Party of the Transactions
will not violate, or require any consent, approval or notice under, any
provision of any judgment, order, decree, statute, law, rule or regulation
applicable to any K Capital Party or the Shares.
3.4 OWNERSHIP OF SHARES. Special K Fund is the beneficial owner of 27,781
shares of Common Stock and K Capital Fund is the beneficial owner of 181,569
shares of Common Stock, in each case free and clear of any Encumbrances. Such
shares are all of the shares of Common Stock beneficially owned by any of the K
Capital Parties or any of their Affiliates. At the Closing, the K Capital
Investment Funds will transfer and deliver to the Company good and marketable
title to all the Shares, free and clear of any Encumbrances.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the K Capital Parties as follows:
4.1 LEGAL POWER; ORGANIZATION; QUALIFICATION. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York and has the full corporate power and authority to execute and
deliver this Agreement and to consummate the Transactions, and has taken all
necessary corporate or other action to authorize the execution, delivery and
performance of this Agreement.
4.2 AUTHORIZATION OF AGREEMENT. This Agreement has been duly executed and
delivered by the Company and, assuming due and valid authorization, execution
and delivery by each of the K Capital Parties, this Agreement constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws of general application affecting enforcement of creditors'
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rights generally and (ii) the availability of the remedy of specific performance
or injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought.
4.3 NO CONFLICTS. Neither the execution and delivery of this Agreement nor
the consummation by the Company of any of the Transactions will result in a
violation of, or a default under, or conflict with, or require any consent,
approval or notice under, any governing or constitutional document, contract,
trust, commitment, agreement, obligation, understanding, arrangement or
restriction of any kind to which the Company is a party or by which the Company
is bound. Consummation by the Company of the Transactions will not violate, or
require any consent, approval or notice under, any provision of any judgment,
order, decree, statute, law, rule or regulation applicable to the Company.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 TERMINATION OF PROXY CONTEST. The K Capital Parties will not nominate
▇▇. ▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇ for election as directors at the Annual Meeting and
hereby withdraw the letter dated January 11, 2002 notifying the Company of the K
Capital Parties' intention to so nominate Messrs. ▇▇▇▇▇ and ▇▇▇▇▇▇. The K
Capital Parties shall cease all solicitation efforts on behalf of Messrs. ▇▇▇▇▇
and ▇▇▇▇▇▇, or any other Person in connection with the Annual Meeting, and shall
not vote any proxies which any K Capital Party has solicited in connection with
such efforts. Messrs. ▇▇▇▇▇ and ▇▇▇▇▇▇ will not stand for election at the Annual
Meeting. The K Capital Parties hereby withdraw any and all other demands,
requests or notices that they have made to the Company, as applicable, including
(but not limited to) the demands set forth in the letters from the K Capital
Parties to the Company, dated August 10, 2001, August 17, 2001, August 23, 2001
and February 13, 2002 and any demands made by the K Capital Parties pursuant to
Section 624 of the New York Business Corporation Law. The K Capital Parties
shall promptly file an amendment to the K Capital Parties' Schedule 13D to
reflect the termination of the proxy contest and the other provisions of this
Agreement. Notwithstanding the K Capital Parties' beneficial ownership of the
Shares as of the record date previously set for the Annual Meeting, the K
Capital Parties hereby agree that they will not vote any shares of Common Stock
beneficially owned by them on any matter submitted to a vote of the stockholders
of the Company at any time.
5.2 STANDSTILL. Each of the K Capital Parties jointly and severally agrees
that, without the prior written consent of the Board of Directors of the Company
expressed in a resolution adopted by a majority of the directors, it shall not,
and will cause each of its Affiliates not to, directly or indirectly, by
purchase or otherwise, during the period from the date hereof through the tenth
anniversary of the date of this Agreement:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be
acquired, ownership (including, but not limited to, beneficial ownership as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of any of the assets or businesses of the Company or any
securities of the Company (including, without limitation, any debt, equity or
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convertible securities) or any rights or options to acquire any such ownership
from any Person;
(b) make, or in any way participate in, directly or indirectly, any
"solicitation" of "proxies" (as such terms are used in the proxy rules of the
Securities and Exchange Commission) to vote, or written consents of shareholders
with respect to, securities of the Company, or seek to advise, encourage or
influence in any manner whatsoever any Person with respect to the voting of any
securities of the Company;
(c) form, join, or in any way participate in a "group" (within the meaning
of Section 13d(3) of the Exchange Act) with respect to any voting securities of
the Company;
(d) arrange, or in any way participate in, any financing for the purchase
of any securities or assets of the Company or securities convertible or
exchangeable into any securities or assets of the Company;
(e) otherwise act, whether alone or in concert with others, to seek to
propose (with or without conditions) to the Company, or any of its stockholders,
any merger, consolidation, business combination, tender or exchange offer,
restructuring, recapitalization, liquidation or similar transaction to or with
any other Person or otherwise act, whether alone or in concert with others, to
seek to control, change or influence the management, shareholders, board of
directors, or policies of the Company;
(f) solicit, negotiate with, or provide any information to, any Person with
respect to a merger, consolidation, business combination, tender or exchange
offer, recapitalization, or liquidation of the Company or any other acquisition
of the Company, any acquisition of securities or any of the assets of the
Company or any other similar transaction;
(g) call or participate in calling, any special meeting of the stockholders
of the Company, or nominate any person for election as a director of the
Company, or make any proposal to be considered and/or voted upon at any meeting
of the stockholders of the Company, or induce or attempt to induce any other
person to initiate any stockholder proposal or director nomination, or discuss
or communicate with respect to any matter related to the business or affairs of
the Company with the stockholders of the Company;
(h) execute any written consent as shareholder with respect to the Company
or its securities;
(i) announce an intention to, or enter into any discussion, negotiations,
arrangements or understandings with any third party with respect to, any of the
foregoing matters;
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(j) disclose any intention, plan or arrangement inconsistent with any of
the foregoing provisions;
(k) advise, assist, encourage or participate with any other Person in
connection with any action inconsistent with any of the foregoing provisions; or
(l) publicly disclose any request to amend, waive or terminate any
provision of this Agreement.
5.3 MUTUAL RELEASES. In consideration of the provisions of this Agreement:
(a) Each of the K Capital Parties (on behalf of itself, each of its
Affiliates and each of their respective successors and assigns) hereby releases
and forever discharges the Company and each and all of its directors, officers,
employees, subsidiaries, agents, representatives, legal and financial advisors
and Affiliates, and any heirs, executors, administrators, successors and assigns
of any such Persons, from all actions, causes of action, proceedings, suits,
claims, debts, damages, judgments, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, injuries, ▇▇▇▇▇, remedies, extents, executions, liens,
liabilities and demands whatsoever, in law or equity, whether known or unknown,
which any of the K Capital Parties and their Affiliates, successors or assigns
ever had, now has or hereafter can, shall or may have, for, upon, or by reason
of any matter, cause or thing whatsoever from the beginning of the world to the
date of this Agreement, other than any claims arising out of or relating to the
negotiation, execution or performance of this Agreement.
(b) The Company (on behalf of itself, each of its Affiliates and each of
their respective successors and assigns) hereby releases and forever discharges
each of the K Capital Parties and each and all of their respective directors,
officers, employees, subsidiaries, agents, managers, representatives, legal and
financial advisors and Affiliates, and any heirs, executors, administrators,
successors and assigns of any such Persons, from all actions, causes of action,
proceedings, suits, claims, debts, damages, judgments, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, injuries, ▇▇▇▇▇, remedies, extents,
executions, liens, liabilities and demands whatsoever, in law or equity, whether
known or unknown, which the Company and its Affiliates ever had, now has or
hereafter can, shall or may have, for, upon, or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the date of this
Agreement, other than any claims arising out of or relating to the negotiation,
execution or performance of this Agreement.
(c) Nothing in this Agreement shall be deemed to limit, release or waive
the right of any party hereto to enforce any and all terms of this Agreement.
5.4 PRESS RELEASE. Upon execution of this Agreement, the Company shall
issue a press release substantially in the form attached hereto with such
changes as may be mutually agreed to by the Company and the Representative (as
such term is hereinafter defined). None of the parties hereto will make any
public statements (including any statements in any
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filing with the Securities and Exchange Commission or any other governmental
agency) that are inconsistent with, or are otherwise contrary to, the statements
in the press release.
ARTICLE VI
INDEMNIFICATION
6.1 INDEMNIFICATION BY THE COMPANY. Subject to the other terms and
conditions of this Agreement, the Company shall indemnify, defend and hold the K
Capital Parties harmless from and against any and all Losses based upon, arising
out of or resulting from the Company's purchase of the Shares pursuant to this
Agreement (other than liability for taxes) or any other matter relating to the
negotiation, execution or performance of this Agreement or any of the
Transactions.
6.2 INDEMNIFICATION PROCEDURES.
(a) Any K Capital Party seeking indemnification hereunder shall give to the
Company written notice of any claim or matter which gives rise to a claim for
indemnification hereunder, promptly upon becoming aware of a fact, condition or
event for which indemnification is provided under this Article VI, but in any
event within thirty (30) days after such K Capital Party has actual knowledge of
the facts constituting the basis for indemnification; provided, however, that
the failure of a K Capital Party to give such notice shall not relieve the
Company of its obligations under this Agreement, except to the extent that such
failure materially prejudices the rights of the Company.
(b) The Company shall have the right to control and direct, through counsel
of its own choosing (which such counsel shall be reasonably acceptable to the K
Capital Party), the defense or settlement of any claim, action, suit or
proceeding brought by a person who is not a party or an Affiliate of a party to
this Agreement (a "Third Party Claim"). The K Capital Party may participate in
such defense, but in such case the expenses of the K Capital Party shall be paid
by the K Capital Party; provided, however, that the K Capital Party shall have
the right to employ, at the Company's expense, one counsel of its choice to
represent the K Capital Party, if the K Capital Party is advised by counsel
reasonably satisfactory to the Company that there exists any actual or potential
conflict of interest between the Company and the K Capital Party. The K Capital
Party shall provide the Company with access to its records and personnel
relating to any Third Party Claim during normal business hours and shall
otherwise cooperate fully with the Company in the defense or settlement thereof,
and the Company shall reimburse the K Capital Party for all its reasonable
out-of-pocket expenses in connection therewith. If the Company elects to direct
the defense of a Third Party Claim, then the K Capital Party shall not pay,
permit to be paid, or settle any part of any claim or demand arising from such
asserted liability, unless the Company consents in writing to such payment or
unless the Company, subject to the last sentence of this Section 6.2(b),
withdraws from the defense of such asserted liability, or unless a final
judgment from which no appeal may be taken by or on behalf of the Company is
entered against the K Capital Party for such liability. The Company will not
settle any claim without the consent of the K Capital Party (such consent not to
be unreasonably withheld). If the Company shall fail to defend, or if, after
commencing or undertaking any such defense, fails to prosecute or withdraws from
the defense of a Third Party Claim, then the K Capital Party shall have the
right to undertake the defense or settlement thereof, at the
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Company's expense. If the K Capital Party assumes the defense of any such claim
or proceeding pursuant to this Section 6.2(b) and proposes to settle such claim
or proceeding prior to a final judgment thereon or to forego appeal with respect
thereto, then the K Capital Party shall give the Company prompt written notice
thereof, and the Company shall have the right to participate in the settlement
or assume or reassume the defense of such claim or proceeding.
6.3 LIMITATIONS.
(a) In any claim for indemnification under this Agreement, the Company
shall not be required to indemnify any K Capital Party for special, exemplary or
consequential damages or for any tax (including, without limitation, any excise
tax) imposed with respect to payments made under this Agreement, including,
without limitation, payment of the Purchase Price for the Shares and any
indemnification payment hereunder.
(b) In any case where a K Capital Party recovers from a Third Party any
amount in respect of a matter with respect to which the Company has indemnified
it pursuant to this Agreement, such K Capital Party shall promptly pay over to
the Company the amount so recovered (after deducting therefrom the full amount
of the expenses incurred by it in procuring such recovery), but not in excess of
the sum of (i) any amount previously so paid by the Company to or on behalf of
the K Capital Party in respect of such matter, and (ii) any amount expended by
the Company in pursuing or defending any claim arising out of such matter.
ARTICLE VII
MISCELLANEOUS
7.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among
the parties with respect to the subject matter hereof, and supersedes any and
all prior agreements or understandings among the parties arising out of or
relating to the subject matter hereof. This Agreement may only be changed by
written agreement executed by the parties.
7.2 GOVERNING LAW. This Agreement and all disputes hereunder shall be
governed by the laws of the State of New York, without giving effect to the
conflicts of law principles thereof.
7.3 EQUITABLE RELIEF. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or equity.
7.4 NO ADMISSIONS. Neither this Agreement nor any action or acts taken in
connection herewith shall constitute an admission of liability or wrongdoing by
any of the parties hereto. This Agreement shall be inadmissible for any purpose
in any proceeding of any kind, except one to enforce its terms.
7.5 EXPENSES. Each party shall pay its own costs incident to the
negotiation, preparation, performance, and execution of this Agreement, and all
fees and expenses of its or his counsel, accountants, and other consultants,
advisors and representatives for all activities of
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such persons undertaken in connection with the negotiation, preparation,
performance and execution of this Agreement. In the event of a dispute regarding
the performance of this Agreement, the non-prevailing party shall reimburse the
prevailing party the amount the prevailing party's reasonable attorneys' fees,
costs and expenses, in addition to any other relief to which the prevailing
party may be entitled.
7.6 FURTHER ASSURANCES. At any time or from time to time after the Closing,
the K Capital Parties shall execute and deliver to the Company such other
documents and instruments, provide such materials and information and take such
other actions as the Company may reasonably request to vest title to the Shares
more effectively in the Company.
7.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties. Copies of executed counterparts
transmitted by telecopy or other electronic transmission service shall be
considered original executed counterparts, provided receipt of such counterparts
is confirmed.
7.8 TIME IS OF THE ESSENCE. The parties hereto agree and acknowledge that
time is of the essence in the performance of this Agreement.
7.9 NO ASSIGNMENTS. No party hereto may assign any of its respective rights
or delegate any of its respective obligations under this Agreement without the
prior written consent of the other parties hereto.
7.10 CONSENT TO JURISDICTION OF SERVICE OF PROCESS; VENUE. Each party
hereto hereby irrevocably and unconditionally (i) consents to the submission to
the exclusive jurisdiction of the courts of the State of New York and of the
United States of America located in the County of New York in the State of New
York (or any appeals court thereof), for any action, claim, complaint,
investigation, petition, suit or other proceeding, whether civil or criminal, in
law or equity, or by or before any governmental authority ("Actions") arising
out of or relating to the Transactions, this Agreement or the breach,
termination or validity thereof, (ii) agrees not to commence any Action relating
to the Transactions or this Agreement except in such courts and in accordance
with the provisions of this Agreement, (iii) agrees that service of any process,
summons, notice, or document by U.S. registered mail or as otherwise provided in
this Agreement shall be effective service of process for any Action brought in
any such court, (iv) waives any objection to the laying of venue of any Action
arising out of this Agreement or the Transactions in the courts of the State of
New York and of the United States of America located in the County of New York
in the State of New York (or any appeals courts thereof) and (v) agrees not to
plead or claim in any such court that any such Action brought in any such court
has been brought in an inconvenient forum.
7.11 NONDISPARAGEMENT. None of the parties hereto shall make any public
statement which is calculated to have the effect or purpose of maligning or
disparaging the integrity, management or services of any of the other parties
hereto or any of their respective directors, officers, managers, stockholders,
limited partners, members or affiliates.
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7.12 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given when mailed, delivered personally, telecopied
(which is confirmed) or sent by an overnight courier service, such as Federal
Express, to the parties at the following addresses (or at such other address for
a party as shall be specified by such party by like notice):
if to any of the K Capital Parties, to:
K Capital Partners, LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Administrative Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Procter LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, P.C.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Company, to:
Gyrodyne Company of America, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone:
Telecopy:
with a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Block, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 7.13 K CAPITAL REPRESENTATIVE. Each of the K Capital Parties hereby
irrevocably appoints ▇▇▇▇▇ ▇▇▇▇▇▇ as such party's attorney-in-fact and
representative (the "Representative"), in such party's place and stead, to do
any and all things and to execute any and all documents and give and receive any
and all notices or instructions in connection with this Agreement and the
transactions contemplated hereby. The Company shall be entitled to rely, as
being binding on each member of the K Capital parties, upon any action taken by
the
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Representative or upon any document, notice, instruction or other writing given
or executed by the Representative.
Section 7.14 DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context clearly requires otherwise:
"AFFILIATE" shall have the meaning set forth in Rule 12b-2 promulgated
under the Securities Exchange Act of 1934.
"ENCUMBRANCES" shall mean any and all liens, charges, security interests,
options, claims, mortgages, pledges, proxies, voting trusts or agreements,
obligations, understandings or arrangements or other restrictions on title or
transfer of any nature whatsoever.
"GOVERNMENTAL ENTITY" shall mean a court, arbitral tribunal, administrative
agency or commission or other governmental or other regulatory authority or
agency.
"LOSSES" shall mean any and all losses, costs, claims, obligations,
liabilities, awards, judgments, fines, penalties, damages or expenses
(including, without limitation, reasonable attorneys' fees).
"PERSON" shall mean a natural person, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Entity or other entity or organization.
"THIRD PARTY" shall mean any person other than the Company, a K Capital
Party or any of their respective Affiliates.
"TRANSACTIONS" shall mean all the transactions provided for or contemplated
by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
GYRODYNE COMPANY OF AMERICA, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
SPECIAL K CAPITAL OFFSHORE MASTER
FUND (U.S. DOLLAR), L.P
By: K Capital Partners, LLC, its General Partner
By: Harwich Capital Partners, LLC, its Managing
Member
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CAO
K CAPITAL OFFSHORE MASTER FUND (U.S. DOLLAR), L.P.
By: K Capital Partners, LLC, its General Partner
By: Harwich Capital Partners, LLC, its Managing
Member
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CAO
K CAPITAL PARTNERS, LLC
By: Harwich Capital Partners, LLC, its Managing
Member
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CAO
HARWICH CAPITAL PARTNERS, LLC
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CAO
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Exhibit A
NOTICE OF GUARANTEED DELIVERY
for
111,000 Shares of Common Stock
of
GYRODYNE COMPANY OF AMERICA, INC.
to
GYRODYNE COMPANY OF AMERICA, INC.
Ladies and Gentlemen:
The undersigned hereby sells, transfers and conveys to Gyrodyne Company of
America, Inc. (the "Company") the number of shares of the Common Stock, par
value $1.00 per share, of the Company (the "Shares"), set forth below.
Number of Shares: 111,000 Name(s) of Beneficial Holder(s): K Capital
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Offshore Master Fund (U.S. Dollar), L.P.
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Certificate No(s). (if available): Address(es): c/o K Capital Partners, LLC
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If shares of Common Stock will be tendered Area Code and Telephone Number(s):
by book-entry transfer, check one box: ---------
(▇▇▇) ▇▇▇-▇▇▇▇
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|X| Signature (s): /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
DTC Transfer ----------------------------
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Account Number: DTC 050 - ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ -------------------------------------------
Date: 4/12/02
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GUARANTEE
The undersigned, a firm that is a bank, broker, dealer, credit union,
savings association or other entity which is a member in good standing of the
Securities Transfer Agents Medallion Program, hereby guarantees to deliver to
the Company, the certificates representing all Shares in proper form for
transfer, or, in the case of book-entry delivery of Shares, a timely
confirmation of book-entry transfer of such Shares into an account established
by the Company, together with a properly completed and duly executed stock
power, with any required signature guarantees, or, in the case of book-entry
delivery of Shares, an Agent's Message, within three trading days after the date
of execution of this Notice of Guaranteed Delivery.
Name of Firm: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /S/ ▇▇▇▇ ▇▇▇▇▇
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(Authorized Signature)
Address: 1221 Avenue of the Americas Title: Vice President
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Name: ▇▇▇▇ ▇▇▇▇▇
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Area Code and --------------------------------------------
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇ (Please print or type)
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Date: 4/12/02
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Exhibit B
[K Capital Partners, LLC Letterhead]
April 12, 2002
Gyrodyne Company of America, Inc.
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▇▇. ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The undersigned (the "Seller") hereby acknowledges and agrees as to the
following in connection with its sale of 111,000 shares (the "Shares") of common
stock, par value $1.00 per share, of Gyrodyne Company of America, Inc.
("Gyrodyne") to Gyrodyne pursuant to that certain Settlement Agreement dated as
of April 12, 2002 by and among Gyrodyne, Special K Capital Offshore Master Fund
(U.S. Dollar), L.P., K Capital Offshore Master Fund (U.S. Dollar), L.P., K
Capital Partners, LLC, Harwich Capital Partners, LLC, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇.
1. ACCESS TO INFORMATION. Gyrodyne has advised Seller that Gyrodyne may be
in possession of material information regarding Gyrodyne, its results of
operations, business, property, plans and prospects (collectively, the
"Information"). Such Information could be material to Seller's decision to sell
the Shares. Seller acknowledges and agrees that Gyrodyne shall have no
obligation to disclose to Seller any such Information.
2. INVESTIGATION. Seller has conducted its own investigation, to the extent
that Seller has determined necessary or desirable, in connection with its sale
of the Shares and has determined to enter into and complete such transaction
based on, among other things, such investigation. Seller hereby waives and
releases, to the fullest extent permitted by law, any and all claims and causes
of action it has or may have against Gyrodyne and its affiliates (as defined in
Rule 12b-2 promulgated under the Securities Exchange Act of 1934), and their
respective officers, directors, employees, representatives and agents, relating
to or arising out of nondisclosure of the Information.
3. ACCREDITED INVESTOR. Seller is an "accredited investor" as defined in
Rule 501 promulgated under the Securities Act of 1933, as amended, and is
sophisticated in matters relating to the valuation of securities and the
purchase and sale of securities.
Gyrodyne is irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Yours sincerely,
K CAPITAL OFFSHORE MASTER FUND
(U.S. DOLLAR), L.P
By: K Capital Partners, LLC, its General Partner
By: Harwich Capital Partners, LLC, its Managing
Member
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CAO
SPECIAL K CAPITAL OFFSHORE MASTER
FUND (U.S. DOLLAR), L.P.
By: K Capital Partners, LLC, its General Partner
By: Harwich Capital Partners, LLC, its Managing
Member
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CAO
Exhibit C
Name of Entity Type of Entity
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K Capital Partners, LLC Delaware limited liability company
Special K Capital Offshore Master Fund Cayman Islands limited partnership
(U.S. Dollar), L.P.
K Capital Offshore Master Fund Cayman Islands limited partnership
(U.S. Dollar), L.P.
Harwich Capital Partners, LLC Delaware limited liability company
▇▇▇▇▇▇ ▇▇▇▇▇ Natural person
▇▇▇▇▇ ▇▇▇▇▇▇ Natural person