Agreement
EXHIBIT
99.1
Agreement
Agreement
(“Agreement”) entered into, as of April 2, 2007, by and among the parties
executing this Agreement as set forth on the signature pages
hereto.
In
connection with the proposed changes in the board of directors of Breeze-Eastern
Corporation (“Breeze-Eastern”), each of the undersigned parties to this
Agreement (each an “Interested Party” and collectively, the “Interested
Parties”) agrees, as of April 2, 2007, as follows:
1. Breeze-Eastern
Securities.
(a) As
of the
date hereof, each Interested Party represents that the Interested Parties
and their Affiliated Shareholders as set forth on Exhibit
A
hereto
beneficially own and have the sole or shared, as indicated, right to vote the
securities of Breeze-Eastern set forth opposite such party’s name on
Exhibit
A
hereto
(the “Current Shareholder Securities”). Securities of Breeze-Eastern acquired by
the Interested Parties and their Affiliated Shareholders after the date hereof
shall be referred to herein as “Additional Shareholder Securities.” Each
Interested Party shall promptly notify the other Interested Parties of any
Additional Shareholder Securities acquired by such Interested Party or its
Affiliated Shareholders after the date hereof. For purposes of this Agreement,
“Affiliated Shareholders” are defined as persons or entities that directly or
indirectly control, are controlled by or are under common control with the
Interested Party. Control of a person or entity means the power to direct,
or to
cause the direction of, the management and policies of such person or entity,
whether through the ownership of voting securities, by contract or otherwise.
(b) Each
Interested Party agrees, for itself and on behalf of its Affiliated
Shareholders, not to sell, assign, transfer, loan or otherwise dispose of (any
such transaction being herein collectively called a “Transfer”), or to advise
any of its Affiliated Shareholders to Transfer, during the term of this
Agreement, all or any of the Current Shareholder Securities (and Additional
Shareholder Securities, upon their acquisition), or the right to vote such
Current Shareholder Securities (and any Additional Shareholder Securities),
which are beneficially owned by such Interested Party or its Affiliated
Shareholder, as applicable.
For
purposes of this Agreement, “Meeting Date” shall mean the date of the 2007
Meeting. “2007 Meeting” shall mean the annual meeting of the stockholders of
Breeze-Eastern to be held in calendar year 2007 or any special meeting of
stockholders called for the purpose of electing directors in calender year
2007, and any adjournments or postponements thereof.
2. Voting
of Current Shareholder Securities and Additional Shareholder
Securities.
Each
Interested Party shall, for itself and on behalf of its Affiliated
Shareholders:
(a)
during the term of this Agreement, retain, and not in any way compromise or
encumber, the right to vote any Current Shareholder Securities (and Additional
Shareholder Securities, upon their acquisition) beneficially owned by such
Interested Party or Affiliated Shareholder, as applicable;
(b)
take
such commercially reasonable actions as may be required so that it may vote
its
Current Shareholder Securities and Additional Shareholder Securities, and cause
any person with whom it has shared voting power to vote such securities at
the
2007 Meeting; and
(c)
on
the Meeting Date, (x) attend the 2007 Meeting in person or by proxy such that
all Current Shareholder Securities and Additional Shareholder Securities held
by
such Interested Party and its Affiliated Shareholders are represented at such
meeting, (y) at the 2007 Meeting, vote such Current Shareholder Securities
and
Additional Shareholder Securities in person or by proxy in the manner set forth
in Exhibit
B
hereto
with respect to each of the actions described therein (the “Actions”), and in
favor of any ancillary or procedural actions or matters related to giving effect
to the Actions or required to effect the approval of the Actions (but in no
event in contravention of any of the Actions), and (z) at the 2007 Meeting,
not
vote any such Current Shareholder Securities and Additional Shareholder
Securities other than as set forth in Exhibit
B
hereto
and any ancillary or procedural actions or matters related to the Actions or
required to effect the approval of the Actions (but in no event in contravention
of any of the Actions).
3. Expenses.
Each
Interested Party shall be responsible for its Share (as defined below) of all
reasonable out-of-pocket and third-party expenses (including, without
limitation, fees and disbursements of counsel, proxy solicitators or other
professionals and advisors engaged by or to act on behalf of the Interested
Parties with respect to matters set forth herein) incurred or to be incurred
in
connection with, the matters described by this Agreement or the Group Schedule
13D (as hereinafter defined), Proxy Statement solicitation of proxies and the
Actions or transactions contemplated hereby or thereby (in each case, to the
extent not reimbursed by Breeze-Eastern). Notwithstanding anything to the
contrary, each Interested Party shall be fully responsible for all such expenses
arising out of such Interested Party’s (or its Affiliated Shareholders’ or any
of their respective affiliates’) gross negligence, fraud, bad faith or willful
misconduct. For the purposes of this Agreement, an Interested Party’s Share
shall be as set forth in Exhibit
C.
4. Cooperation.
Each
Interested Party shall (a) use reasonable efforts to assist each other and
timely provide all necessary or desirable information to each other and (b)
to
execute and deliver such additional documents, in each case, as may be
reasonably required in order to effect the Actions and transactions contemplated
by this Agreement and the Schedule 13D in respect of the parties’ collective
beneficial ownership of securities of Breeze-Eastern (as a “Group”), as may be
amended from time to time (the “Group Schedule 13D”). Each party to this
Agreement agrees, to the extent required by, and in accordance with, applicable
federal securities laws, to update any information pertaining to such party
in
the Group Schedule 13D or any amendments thereto. Each Interested Party shall
promptly, and in no event later than one business day following the acquisition
of a beneficial interest in Additional Shareholder Securities by the Interested
Party or its Affiliated Shareholders, provide such information to the other
Interested Parties as is reasonably necessary with respect to any amendment
of the Schedule 13D. Until the third anniversary of this Agreement, each of
the
Interested Parties agrees to cooperate, to the extent reasonable, including
without limitation in a joint defense, with respect to any claim or action
of
any kind, at law or equity, or any appeal of any decision thereof, threatened
in
writing, initiated or pending which in any manner attempts to prevent, forestall
or invalidate the consummation of any of the Actions or any matter contemplated
by this Agreement or the Group Schedule 13D, or in a joint prosecution or other
declaratory action which attempts to effectuate any matter contemplated by
this
Agreement or the Group Schedule 13D; provided,however, if any
claim is pending by or against the Interested Parties on the third anniversary
of this Agreement, this Agreement shall continue in full force and effect until
such claim is finally resolved.
5. Liability.
Except
as set forth in Sections 3 and 11 hereof or resulting from any breach of any
Interested Party’s representations, warranties or covenants hereunder, no
Interested Party nor any of its Affiliated Shareholders nor any of their
respective affiliates, partners, employees, counsel, agents or representatives
shall be liable to any other Interested Party or their Affiliated Shareholders
or any of their respective affiliates, partners, employees, counsel, agents
or
representatives, in each case for any loss, liability, damage or expense arising
out of or in connection with this Agreement or the Group Schedule 13D or the
Actions or transactions contemplated hereby or thereby, except to the extent
such loss, liability, damage or expense is caused by such Interested Party’s
gross negligence, fraud, bad faith or willful misconduct.
6. Power;
Binding Agreement; Non-Contravention; Misstatements; Omissions.
Each
Interested Party represents, as to itself only, that: (a) it has the full right,
power and authority to enter into this Agreement and perform all of its
obligations hereunder; (b) neither the execution, delivery nor performance
of
this Agreement by such party will violate the charter, by-laws or other
organizational or constitutive documents of such party, or any other agreement,
contract or arrangement to which such party is a party or is bound, including
any voting agreement, stockholders agreement or voting trust; (c) this Agreement
has been duly authorized, executed and delivered by such party and constitutes
a
legal, valid and binding agreement of such party, enforceable in accordance
with
its terms; (d) neither the execution or delivery of this Agreement by such
party
will (i) require any material consent or approval of or filing with any
governmental or other regulatory body, other than filings required under the
federal or state securities laws, or (ii) constitute a violation of,
conflict with or constitute a default under (A) any material law, rule or
regulation applicable to such party, or (B) any material order, judgment or
decree to which such party is bound; and (e) the Interested Party and its
Affiliated Shareholders have the right to vote the Current Shareholder
Securities as set forth on Exhibit A.
7. Notices.
All
notices, correspondence and information related to this Agreement should be
sent
to the Interested Parties at the addresses set forth below:
Wynnefield
Partners Small Cap Value, L.P.
000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxx
Terrier
Partners LP
000
Xxxx
00xx
Xxxxxx,
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx Xxxxxxx
Xxxxxxxxx
& Xxxxxx Incorporated
00
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxxxx
In
all
cases with a copy to:
Xxxx
Xxxxxxx, P.C.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxxx, Esq.
8. Amendments;
Successors.
No
waiver, amendment or other modification of this Agreement shall be effective
unless in writing and signed by each Interested Party. This Agreement shall
inure to the benefit of and be binding on each Interested Party and their
respective successors. This Agreement is non-assignable.
9. Termination.
Except
as otherwise set forth in Section 4 hereof, this Agreement will terminate upon
the earlier to occur of (x) December 31, 2007, unless such date is extended
by
agreement of the Interested Parties, and (y) the date of the 2007 Meeting at
which the Actions set forth on Exhibit A have been voted on; provided
that no
matter shall be considered consummated hereunder, or the obligations of the
Interested Parties terminated hereunder, while any claim or action of any
kind, at law or equity, or any appeal of any decision thereof, is threatened
in
writing, initiated or pending which in any manner attempts to prevent, forestall
or invalidate any of the Actions or matters contemplated thereby. Any
termination of this Agreement pursuant to this Section 9 shall occur
without any liability or continuing obligation of any party to any other party;
provided,
that the
reimbursement obligations set forth in Section 3, and the obligations to
cooperate and provide information set forth in Section 4 shall survive any
such
termination. Notwithstanding anything to the contrary, including any continuing
obligations to cooperate hereunder, upon termination of this Agreement, no
Interested Party intends to be, and shall no longer be, part of a “group” for
any purpose, including for purposes of the federal securities laws.
10. Public
Announcements. No Interested Party shall issue any written press release or
make any other public statement regarding the Actions
or other transactions contemplated by this Agreement or the Group Schedule
13D
without the prior consent of the other Interested Parties.
11. Representation.
Each Interested Party represents and agrees that, to the best of its knowledge,
the information about such Interested Party
or
any of its Affiliated Shareholders contained or which is required to be
contained in the Group Schedule 13D or any amendment thereto
is accurate, correct and complete in all material respects as of date of
the
applicable filing. Damages for any breach of the foregoing representation
shall include not only judgments and amounts paid in settlement (with the
approval of the misrepresenting Interested Party), but also other
losses (excluding loss of value of the securities held or to be held) incurred
by any other party to this Agreement.
12. Counterparts.
This Agreement may be executed and delivered by each party hereto in separate
counterparts, each of which when so executed
and delivered shall be deemed an original and both of which taken together
shall
constitute one and the same agreement.
13. Choice
of
Law. This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of New York,
without giving effect to any choice of law or conflict of laws provision
or rule
(whether of the State of New York or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State
of
New York.
14. Severability.
If any term, provision, covenant or restriction contained in this Agreement
is
held by a court of competent jurisdiction or
other
authority by judgment or order no longer subject to review, to be invalid,
void,
unenforceable or against its regulatory policy, the remainder of the
terms, provisions, covenants and restrictions contained in this Agreement
shall
remain in full force and effect and shall in no way be affected,
impaired
or invalidated.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered on the date and year first above written
INTERESTED
PARTY
Wynnefield
Partners Small Cap Value, L.P.
| By: |
Wynnefield
Capital Management, LLC,
Its
General Partner
By:/s/
Xxxxxx
Xxxx
Name:
Xxxxxx Xxxx
Title:
Co-Managing Member
|
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered on the date and year first above written
INTERESTED
PARTY
Terrier
Partners LP
| By: |
B
Doggy LLC,
General
Partner
By:
/s/
Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Managing Member
|
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered on the date and year first above written
INTERESTED
PARTY
GOLDSMTH
& XXXXXX INCORPORATED
By:
/s/
Xxxxxx X.
Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, Chairman
EXHIBIT
A
|
INTERESTED
PARTY
|
Interested
Party Securities
|
|
|
Wynnefield
Partners Small Cap Value,
L.P.
(“Wynnefield Partners”)
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
371,933
0
|
|
AFFILIATED
SHAREHOLDERS
|
Affiliated
Shareholder Securities
|
|
|
Wynnefield
Partners Small Cap Value,
L.P.
I (“Wynnefield Partners I”)
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
513,645
0
|
|
Wynnefield
Small Cap Value Offshore
Fund,
Ltd.(“Wynnefield Offshore”)
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
549,255
0
|
|
Channel
Partnership II, L.P.
(“Channel”)
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
38,400
0
|
|
Wynnefield
Capital Management, LLC
(“WCM”)
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
(1)
0
|
|
Wynnefield
Capital, Inc.(“WCI”)
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
(2)
0
|
|
Xxxxxx
Xxxx
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
(3)
(4)
|
|
Xxxxxx
Xxxxxx
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
0
(4)
|
(1)
WCM
is the sole general partner of the Wynnefield Partners and Wynnefield
Partners I
and, accordingly, may be deemed to be the indirect beneficial owner (as
that
term is defined under Rule 13d-3 under the Exchange Act) of the Common
Shares
that Wynnefield Partners and Wynnefield Partners I beneficially own.
(2)
WCI
is the sole investment manager of Wynnefield Offshore and, accordingly,
may be
deemed to be the indirect beneficial owner (as that term is defined under
Rule
13d-3 under the Exchange Act) of the Common Shares that Wynnefield Offshore
beneficially owns.
(3)
Mr.
Obus is the general partner of Channel and accordingly, Mr. Obus may
be deemed
to be the indirect beneficial owner (as that term is defined under Rule
13d-3
under the Exchange Act) of the Common Shares that Channel may be deemed
to
beneficially own.
(4)
Messrs. Obus and Xxxxxx are executive officers of WCI and, accordingly,
each of
Messrs. Obus and Xxxxxx may be deemed to be the indirect beneficial owner
(as
that term is defined under Rule 13d-3 under the Exchange Act) of the
Common
Shares that WCI may be deemed to beneficially own. In addition, each
of Messrs.
Obus and Xxxxxx are the co-managing members of WCM, and accordingly,
each of
Messrs. Obus and Xxxxxx may be deemed to be the indirect beneficial owner
(as
that term is defined under Rule 13d-3 under the Exchange Act) of the
Common
Shares that WCM may be deemed to beneficially own.
|
INTERESTED
PARTY
|
Interested
Party Securities
|
|
|
Xxxxxxxxx
& Xxxxxx Incorporated
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
10
0
|
|
AFFILIATED
SHAREHOLDERS
|
Interested
Party Securities
|
|
|
Xxxxxxxxx
& Xxxxxx Capital Appreciation
LLC
( “GHCA”)
|
Number
of shares of common stocks with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
0
67,703
|
|
Xxxxxxxxx
& Xxxxxx Asset Management
LLC
(“GHAM”)
|
Number
of shares of common stocks with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
0
(1)
|
|
Xxxxxx
X. Xxxxxxxxx
|
Number
of shares of common stocks with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
24,490
(
2)
|
|
Xxx
X. Xxxxxx
|
Number
of shares of common stocks with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
193,500
(2)
|
|
Xxxxxx
X. Xxxx
|
Number
of shares of common stocks with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
0
(2)
|
(1)
GHAM
may be deemed to be the indirect beneficial owner (as that term is defined
under
Rule 13d-3 under the Exchange Act) of the Common Shares held by GHCA by
virtue
of its position as investment advisor of GHCA.
(2)
Messrs. Xxxxxx, Xxxxxxxxx and Erpf may be deemed to be the indirect
beneficial owner (as that term is defined under Rule 13d-3 under the Exchange
Act) of Common Shares that GHAM may be deemed to beneficially own through
their
positions as Managing Directors of GHAM, a registered investment adviser
under
Section 203 of the Investment Advisers Act of 1940, through which they
share
investment discretion and voting control over the Common Shares held by
GHCA.
|
INTERESTED
PARTY
|
Interested
Party Securities
|
|
|
Terrier
Partners LP ("Terrier Partners")
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
187,500
0
|
|
AFFILIATED
SHAREHOLDERS
|
Affiliated
Shareholder Securities
|
|
|
B
Doggy LLC ("B-Doggy")
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
(
1)
|
|
Xxxxx
Xxxxxxx
|
Number
of shares of common stock with
(i)
Sole right to vote:
(ii)
Shared right to vote:
|
(2)
|
(1)
B-Doggy is the sole general partner of Terrier Partners and, accordingly, may
be
deemed to be the indirect beneficial owner (as that term is defined under Rule
13d-3 under the Exchange Act) of the Common Shares that Terrier Partners may
be
deemed to beneficially own.
(2)
Xx.
Xxxxxxx is the sole manager of B-Doggy and, accordingly, Xx. Xxxxxxx may be
deemed to be the indirect beneficial owner (as that term is defined under Rule
13d-3 under the Exchange Act) of the Common Shares that B-Doggy may be deemed
to
beneficially own.
EXHIBIT
B
Actions
to be Voted on
1.
Against any adjournment or postponement of the 2007 Meeting until a vote has
occurred on each of the items below.
2.
For
the election at the 2007 Meeting of four director nominees which currently
are
not members of the Board of Directors, the identity of whom is to be agreed
to
by all of the Interested Parties. In the event Breeze-Eastern purports to
increase the number of directorships pursuant to its Bylaws or otherwise
increases the number of directors to be elected at the 2007 Meeting, the
Interested Parties may nominate additional persons as directors to fill any
vacancies created by the increase or to fill any additional positions on the
board which the stockholders shall vote on at the 2007 Meeting.
3.
For
the re-election of four incumbent directors of Breeze-Eastern, the identity
of
whom is to be agreed to by all of the Interested Parties, assuming such
directors’ willingness to serve, and the inclusion of such directors on the
Interested Parties’ proxy and ballot setting forth the nominees described in
Item 2 above or upon agreement of all of the Interested Parties, to withhold
votes or vote against all director nominees, other than those nominated pursuant
to item 2 above.
EXHIBIT
C
| Interested Party |
Interested
Party
Share
|
|
Wynnefield
Partners Small Cap
Value,
L.P.
|
59.8%
|
| Xxxxxxxxx & Xxxxxx Incorporated |
33.3%
|
| Terrier Partners LP |
6.9%
|
