EXHIBIT 99.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of April 12,
2002, is by and among 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 "Sellers") and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ("Purchaser").
RECITALS
WHEREAS, Special K Fund is the beneficial owner of 27,781 shares of the
common stock, par value $1.00 per share (the "Common Stock"), of Gyrodyne
Company of America, Inc. and K Capital Fund is the beneficial owner of 181,569
shares of Common Stock;
WHEREAS, the Sellers desire to sell, and the Purchaser desires to purchase
98,350 shares of Common Stock (collectively, the "Shares");
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
Sellers shall, sell, assign, transfer, convey and deliver to the Purchaser, and
the Purchaser shall purchase, acquire and accept from the Sellers, 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 Purchaser 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 SELLERS. At the Closing, the Sellers
shall deliver, or cause to be delivered, to the Purchaser the following:
(a) a Notice of Guaranteed Delivery in the form of Exhibit A hereto, duly
executed and completed.
2.3 DOCUMENTS TO BE DELIVERED BY THE PURCHASER. At the Closing, the
Purchaser shall deliver to the Sellers the following:
(a) payment and evidence of the wire transfer referred to in Section 1.2.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers jointly and severally represent and warrant to the Purchaser
that:
3.1 LEGAL POWER; ORGANIZATION; QUALIFICATION. Each Seller is a legal entity
of the type set opposite such Seller's name on Exhibit B hereto. Each Seller 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, 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 Seller and, assuming due and valid authorization, execution
and delivery by the Purchaser, this Agreement constitutes a legal, valid and
binding obligation of each Seller, enforceable against each Seller 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 either Seller 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 either Seller is a party or by which either
Seller is bound or to which the Shares are subject. Consummation by each Seller
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 either Seller or the Shares.
3.4 OWNERSHIP OF SHARES. The Sellers are the beneficial owner of the
Shares, in each case free and clear of any Encumbrances. At the Closing, the
Sellers will transfer and deliver to the Purchaser good and marketable title to
all the Shares, free and clear of any Encumbrances.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Sellers as follows:
4.1 AUTHORIZATION OF AGREEMENT. This Agreement has been duly executed and
delivered by the Purchaser and, assuming due and valid authorization, execution
and delivery by each of the Sellers, this Agreement constitutes a legal, valid
and binding obligation of the Purchaser, enforceable against the Purchaser 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.
4.2 NO CONFLICTS. Neither the execution and delivery of this Agreement nor
the consummation by the Purchaser 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 contract, trust, commitment, agreement,
obligation, understanding, arrangement or restriction of any kind to which the
Purchaser is a party or by which the Purchaser is bound. Consummation by the
Purchaser 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 Purchaser.
ARTICLE V
MISCELLANEOUS
5.1 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.
5.2 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.
5.3 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.
5.4 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 counsel, accountants, and other consultants, advisors
and representatives for all activities of 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
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reasonable attorneys' fees, costs and expenses, in addition to any other relief
to which the prevailing party may be entitled.
5.5 FURTHER ASSURANCES. At any time or from time to time after the Closing,
the Sellers 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.
5.6 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.
5.7 TIME IS OF THE ESSENCE. The parties hereto agree and acknowledge that
time is of the essence in the performance of this Agreement.
5.8 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.
5.9 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.
5.10 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):
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if to either of the Sellers, 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 Purchaser, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇'▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 5.11 DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context clearly requires otherwise:
"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.
"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.
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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CAO
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Exhibit A
NOTICE OF GUARANTEED DELIVERY
FOR
98,350 SHARES OF COMMON STOCK
OF
GYRODYNE COMPANY OF AMERICA, INC.
TO
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
LADIES AND GENTLEMEN:
The undersigned hereby sells, transfers and conveys to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇") the number of shares of the Common Stock, par value $1.00 per share,
of Gyrodyne Company of America, Inc. (the "Shares"), set forth below.
Number of Shares: 98,350 Name(s) of Beneficial Holder(s): SPECIAL K
--------------------- ----------------------
CAPITAL OFFSHORE MASTER FUND (U.S. DOLLAR), L.P.
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K CAPITAL 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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▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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If shares of Common Stock will be tendered by book-entry Area Code and Telephone Number(s):
transfer, check one box: ---------------------
(▇▇▇) ▇▇▇-▇▇▇▇
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|X| Signature (s): /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
DTC TRANSFER
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Account Number: DTC 050 - ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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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 ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇, 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/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------- -------------------------------------------------------
(Authorized Signature)
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ Title: VICE PRESIDENT
--------------------------------------------- -----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
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Area Code and
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇ -------------------------------------------------------
-------------------------------------- (Please print or type)
Date: 4/12/02
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Exhibit B
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
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