EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT is made as of October 27, 2008 by and among the
following parties (individually a "Party" and collectively the "Parties"):
(1) Gyrodyne Company of America, Inc., a New York corporation (the
"Company");
(2) the following parties (each individually a "Bulldog Investor"
and collectively the "Bulldog Investors"): Full Value Partners L.P., a
Delaware limited partnership ("Full Value"), Opportunity Partners L.P., an
Ohio limited partnership ("Opportunity Partners"), Opportunity Income Plus
Fund L.P., a Delaware limited partnership ("Opportunity Income"), Full
Value Offshore Partners L.P., a Cayman Islands exempted limited
partnership ("Offshore"), Full Value Special Situations Fund L.P., a
Delaware limited partnership ("Special Situations"), Xxxxxxx & Winthrop,
Inc., an Ohio corporation and general partner of Opportunity Partners,
Full Value Advisors LLC, a New Jersey limited liability company and
general partner of Full Value and Offshore, Spar Advisors, LLC, a New York
limited liability company and general partner of Opportunity Income, Full
Value Special Situations Fund GP LLC, a Delaware limited liability company
and general partner of Special Situations, Bulldog Investors, a "doing
business as" name for Full Value and Opportunity Partners, Xx. Xxxxxxx
Xxxxxxxxx, Xx. Xxxxxx Xxxxx and each Affiliate and Associate of each of
the foregoing; and
(3) Xx. Xxxxxx Xxxxxx.
Capitalized terms used herein but not otherwise defined shall have the meaning
set forth in Article 5 of this Agreement.
RECITALS
A. As of the date of this Agreement, the Bulldog Investors
Beneficially Own, and have the right to vote, 225,246 shares of the Company's
common stock, par value $1.00 (the "Company Common Stock"), representing
approximately 17.46% of the outstanding Company Common Stock;
B. Upon the recommendation of the Bulldog Investors, the Company's
Nominating Committee has considered and recommended the nomination of Xx. Xxxxxx
for election as a director of the Company at the 2008 Annual Meeting of
Shareholders of the Company (the "2008 Annual Meeting") and the Board of
Directors of the Company (the "Board") has considered the Nominating Committee's
recommendation that Xx. Xxxxxx be nominated for election as a director; and
C. Concurrent with the execution and delivery of this Agreement, Xx.
Xxxxxx has agreed to enter into a Confidentiality Agreement with the Company.
ARTICLE 1
BOARD COMPOSITION AND RELATED MATTERS
Section 1.1. The Company represents and warrants to the other
Parties that the Board, in connection with its approval of this Agreement and
subject to the execution and delivery of this Agreement by all Parties, has
resolved to nominate Xx. Xxxxxx for election as a director of the Company at the
2008 Annual Meeting to serve in the class of directors with terms ending in 2011
and to recommend (and not withdraw such recommendation) to the shareholders of
the Company that they vote for Xx. Xxxxxx at the 2008 Annual Meeting.
Section 1.2. Xx. Xxxxxx hereby confirms:
(a) his consent to serve on the Board if elected pursuant to Section
1.1 hereof; and
(b) his agreement to fully comply with any and all policies and
procedures of the Company, including corporate governance and xxxxxxx xxxxxxx
policies, as the same may be amended from time to time; provided that the effect
of any such policy or procedure does not discriminate among members of the Board
or require any director to violate the law or breach such director's fiduciary
duties under applicable law.
ARTICLE 2
ACTIONS BY THE BULLDOG INVESTORS
Section 2.1. The Bulldog Investors shall not, without the prior
written consent of the Board specifically expressed in a written resolution
adopted by a majority vote of the entire Board:
(a) consistent with the terms of the Rights Agreement, dated as of
August 10, 2004, by and between Gyrodyne Company of America, Inc. and Registrar
and Transfer Company, as Rights Agent which generally restricts the acquisition
of Beneficial Ownership of 20% or more of the Company's Voting Securities,
acquire, offer or propose to acquire, or agree to acquire (except by way of
stock dividends or other distributions or offerings made available to holders of
Voting Securities generally on a pro rata basis, provided that any such
securities so received will be subject to the provisions hereof), directly or
indirectly, whether by purchase, tender or exchange offer, through the
acquisition of control of another Person, by joining a partnership, limited
partnership, syndicate or other "group" as defined under Section 13(d) of the
1934 Act or otherwise, any Voting Securities, or otherwise become the Economic
Owner of any such securities, if after giving effect to such acquisition the
Bulldog Investors individually or together with any other Person with whom the
Bulldog Investors have any agreement, understanding or arrangement with respect
to Voting Securities, would be the Economic Owner of 20% or more of the
Company's outstanding Voting Securities; provided that for the purposes of
computing the Economic Ownership at the time of any purchase, the number of
outstanding Voting Securities will be determined by the latest available Company
filing with the Securities and Exchange Commission (the "SEC"); and further
provided that notwithstanding any provision of this Agreement to the contrary,
the Bulldog Investors shall not be required to divest any Voting Securities if
they become the Economic Owner of 20% or more of the Company's outstanding
Voting Securities solely due to a reduction in the number of Voting Securities
outstanding.
(b) solicit proxies or written consents of shareholders, or any
other person with the right to vote or power to give or withhold consent in
respect of Voting Securities, or conduct, encourage, participate or engage in,
or otherwise seek to influence in any manner, any other type of referendum
(binding or non-binding) with respect to any matter, or from the holders of
Voting Securities or any other person with the right to vote or power to give or
withhold consent in respect of Voting Securities, or make, or in any way
participate, influence or engage in (other than by voting their Voting
Securities in a manner that does not violate this Agreement), any "solicitation"
of any "proxy" (as such terms are used in the proxy rules of the SEC), consent
or other authority to vote any Voting Securities, with respect to any matter, or
participate directly or indirectly in any contested solicitation with respect to
the Company, including without limitation relating to the removal or the
election of directors;
(c) form or join in a partnership, limited partnership, syndicate or
other group, including without limitation a "group" as defined under Section
13(d) of the 1934 Act, with respect to Voting Securities, or otherwise support
or participate in any effort by a third party with respect to the matters set
forth in Section 2.1(b), or deposit any Voting Securities in a voting trust or
subject any Voting Securities to any voting agreement, other than solely with
other Bulldog Investors with respect to Voting Securities now or hereafter
Beneficially Owned by them or pursuant to this Agreement;
(d) act, alone or in concert with others, to seek to control or
influence, in any manner, the management, the Board or the policies of the
Company or nominate any person as a director of the Company who is not nominated
by the then incumbent directors of the Company or propose any matter to be voted
upon by the shareholders of the Company;
(e) make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any Extraordinary
Transaction of or involving the Company or the securities or assets of the
Company;
(f) seek to have called, or cause to be called, any meeting of
shareholders of the Company;
(g) make any public demand to inspect the books and records of the
Company or demand a copy of the Company's stock ledger list, including pursuant
to any statutory rights that the Bulldog Investors may have;
(h) make, or cause to be made, any statement or announcement that
relates to and constitutes an ad hominem attack on, or relates to and otherwise
disparages, the Company, its officers or its directors or any person who has
served as an officer or director of the Company on or following the date of this
Agreement: (i) in any document or report filed with or furnished to the SEC or
any other governmental agency, (ii) in any press release or other publicly
available format (including on the Internet), (iii) to any journalist or member
of the media (including without limitation, in a television, radio, newspaper or
magazine interview) or (iv) in any letter or other communication to or with any
shareholder of the Company;
(i) request the Company to amend, waive or terminate any provision
of this Agreement (including this sentence);
(j) take any action which will require the Company to make a public
announcement regarding the possibility of an Extraordinary Transaction;
(k) make any proposal (including publicly disclose or discuss any
proposal) or have any discussions or communications, or enter into any
arrangements, understandings or agreements (whether written or oral) with, or
advise, finance, assist or encourage, any other Person in connection with any of
the foregoing, or make any investment in or enter into any arrangement with, any
other Person that engages, or offers or proposes to engage, in any of the
foregoing; or
(l) take or cause or induce others to take any action inconsistent
with any of the foregoing.
Section 2.2. The Bulldog Investors will cause all Voting Securities
for which they have the right to vote as of the record date for any meeting of
shareholders to be present for quorum purposes and to be voted at any such
meeting for the election of directors in the manner recommended by the Board.
Section 2.3. The Bulldog Investors will be released from the
obligations set forth in this Article 2 on the date that is thirty (30) days
before the last date on which a shareholder of the Company may submit
nominations for the Board in connection with the 2011 Annual Meeting of
Shareholders of the Company.
ARTICLE 3
ACTIONS BY THE COMPANY
Section 3.1. Unless and until the Bulldog Investors are released
from their obligations under Article II pursuant to Section 2.3 hereof, the
Company shall not make, or cause to be made, any statement or announcement that
relates to and constitutes an ad hominem attack on, or relates to and otherwise
disparages, any of the Bulldog Investors, any of their officers, directors,
partners or members or any person who has served as an officer, director,
partner or member of any of the Bulldog Investors: (i) in any document or report
filed with or furnished to the SEC or any other governmental agency, (ii) in any
press release or other publicly available format (including on the Internet),
(iii) to any journalist or member of the media (including without limitation, in
a television, radio, newspaper or magazine interview) or (iv) in any letter or
other communication to or with any shareholder of the Company.
ARTICLE 4
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 4.1. The Company represents and warrants to each of the
other Parties that:
(a) the Company's execution, delivery and performance of this
Agreement has been approved by the Board and does not violate its Restated
Certificate of Incorporation, its Amended and Restated Bylaws or the New York
Business Corporation Law, or any agreement to which it is a party; and
(b) this Agreement constitutes the Company's valid and binding
obligation, enforceable against it in accordance with the terms thereof.
Section 4.2. Each of the Bulldog Investors represents and warrants
to the Company that:
(a) if the Bulldog Investor making such representation and warranty
is not a natural person, its execution, delivery and performance of this
Agreement has been approved by its respective general partner, managing member,
board of directors, trustee or other governing body or authority, as the case
may be, and does not violate its respective organizational or constituent
document;
(b) its execution, delivery and performance of this Agreement does
not violate any agreement to which it is a party or any of its constituent
documents;
(c) this Agreement constitutes its valid and binding obligation,
enforceable against it in accordance with the terms thereof;
(d) it has consulted with counsel of its choice in connection with
its decision to enter into and be bound by this Agreement or waived its right to
so consult;
(e) Recital A to this Agreement is a true statement of the aggregate
number of Voting Securities Beneficially Owned by the Bulldog Investors; and
(f) the Bulldog Investors and Xx. Xxxxxx have no agreement to
acquire, hold, vote or dispose of any Voting Securities of the Company.
Section 4.3. Xx. Xxxxxx represents and warrants to the Company that:
(a) the execution, delivery and performance of this Agreement does
not violate any agreement to which he is a party;
(b) this Agreement constitutes a valid and binding obligation,
enforceable against him in accordance with the terms thereof;
(c) he has consulted with counsel of his choice in connection with
his decision to enter into and be bound by this Agreement; and
(d) Xx. Xxxxxx and the Bulldog Investors have no agreement to
acquire, hold, vote or dispose of any Voting Securities of the Company.
ARTICLE 5
CERTAIN ANNOUNCEMENTS AND OTHER DISCLOSURES
Section 5.1. The Company shall announce this Agreement and the
material terms hereof by means of a mutually agreed upon press release in the
form attached hereto as Exhibit A (the "Press Release") as soon as practicable
on or after the date hereof.
Section 5.2. Except as set forth in Section 5.1, neither the
Company, Xx. Xxxxxx nor the Bulldog Investors shall make any public announcement
or statement concerning this Agreement or comment on this Agreement; provided,
however, that any Party may make such announcement, statement or comment
concerning this Agreement as is required by law or the rules of any stock
exchange; provided further, however, that such announcement may only be made
with the prior written consent of the other Parties, such consent not to be
unreasonably withheld.
ARTICLE 6
CERTAIN DEFINITIONS
Section 6.1. In addition to the other definitions contained
elsewhere in this Agreement, the following terms shall have the meanings
specified below for the purposes hereof:
"Affiliate" has the meaning ascribed to it in Rule 12b-2 promulgated
under the 1934 Act.
"Associate" has the meaning ascribed to it in Rule 12b-2 promulgated
under the 1934 Act.
"Beneficial Owner" and "Beneficially Own" have the same meanings as
set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; provided,
however, that for purposes of this Agreement, any option, warrant, right,
conversion privilege or arrangement to purchase, acquire or vote Voting
Securities, regardless of the time period during, or the time at which, it may
be exercised, and regardless of the consideration paid, shall be deemed to give
the holder thereof beneficial ownership of the Voting Securities to which it
relates.
"Economic Owner" and "Economically Own" will have the same meanings
as "Beneficial Owner" and "Beneficially Own," except that a Person will also be
deemed to economically own and to be the economic owner of (i) all shares of
Company Common Stock that such Person has the right to acquire pursuant to the
exercise of any rights in connection with any securities or any agreement,
regardless of when such rights may be exercised and whether they are conditional
and (ii) all shares of Company Common Stock in which the Person has any economic
interest, including, without limitation, pursuant to any short positions, profit
interests, options, hedging transactions, borrowed or loaned shares, swaps or
other derivative security, contract or instruction in any way related to the
price of shares of Company Common Stock.
"Extraordinary Transaction" means any merger, consolidation,
business combination, tender or exchange offer, restructuring, liquidation,
recapitalization, dissolution, or similar transaction involving the Company.
"1934 Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC under such statute.
"Person" means a natural person or any legal, commercial or
governmental entity, including, but not limited to, a corporation, partnership,
joint venture, trust, limited liability company, group acting in concert or any
person acting in a representative capacity.
"Voting Securities" means any securities of the Company entitled, or
which may be entitled, to vote in the election of directors, or securities
convertible into or exercisable or exchangeable for such securities, whether or
not subject to passage of time or other contingencies.
ARTICLE 7
MISCELLANEOUS
Section 7.1. Entire Agreement. This Agreement constitutes the entire
agreement of the Parties with respect to its subject matter and supersedes any
and all prior representations, agreements or understandings, whether written or
oral, between or among any of them with respect to such subject matter. This
Agreement may be amended only by a written agreement duly executed by the
Parties.
Section 7.2. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be in writing and shall be deemed validly given, made or
served, if (a) given by telecopy, when such telecopy is transmitted to the
telecopy number set forth below and the appropriate confirmation is received or
(b) if given by any other means, when actually received during normal business
hours at the address specified in this subsection:
if to the Company:
Gyrodyne Company of America, Inc.
0 Xxxxxxxxxxx, Xxxxx 00
Xx. Xxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, President and
Chief Executive Officer
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Block, Esq.
if to the Bulldog Investors:
Bulldog Investors
00 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000 (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
if to Xxxxxx Xxxxxx:
0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Section 7.3. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York.
Section 7.4. Assignment. This Agreement may not be assigned by any
Party without the prior written consent of the other Parties. This Agreement
shall be binding upon, and inure to the benefit of, the respective successors
and permitted assigns of the Parties. This Agreement shall confer no rights or
benefits upon any Person other than the Parties.
Section 7.5. Waiver. Any waiver by any Party of a breach of any
provision of this Agreement shall not be deemed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement.
Section 7.6. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original but all of which shall
together constitute a single instrument.
Section 7.7. Authorized Representative. Each of the Bulldog
Investors hereby appoints Xx. Xxxxxxxxx as the authorized representative of such
Bulldog Investor for all purposes of this Agreement (including, without
limitation, the giving of binding approvals and waivers) and the Company shall
be entitled to deal with Xx. Xxxxxxxxx accordingly.
Section 7.8. Remedies. (a) Each Party hereto hereby acknowledges and
agrees, on behalf of itself and its Affiliates, that irreparable harm would
occur in the event any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties will be entitled to specific relief
hereunder, including an injunction or injunctions to prevent and enjoin breaches
of the provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any state or federal court in New York County in the State
of New York, in addition to any other remedy to which they may be entitled at
law or in equity. Any requirements for the securing or posting of any bond with
such remedy are hereby waived.
(b) Each Party hereto agrees, on behalf of itself and its
Affiliates, that any actions, suits or proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby will be brought solely
and exclusively in any state or federal court in New York County in the State of
New York (and the parties agree not to commence any action, suit or proceeding
relating thereto except in such courts), and further agrees that service of any
process, summons, notice or document by U.S. registered mail to the respective
addresses set forth in Section 7.2 will be effective service of process for any
such action, suit or proceeding brought against any Party in any such court.
Each Party, on behalf of itself and its Affiliates, irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby, in the state or federal courts in New York County in the State of New
York, and hereby further irrevocably and unconditionally waives and agrees not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an improper or inconvenient forum.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Agreement has been executed by each of the
Parties, through their respective duly authorized representative, as of the date
first above written.
GYRODYNE COMPANY OF AMERICA, INC. FULL VALUE PARTNERS L.P.
By: Full Value Advisors LLC, General
Partner
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx Xxxxxxxxx
Title: President and Chief Title: Managing Member
Executive Officer
OPPORTUNITY PARTNERS L.P.
By: Xxxxxxx & Winthrop, Inc.,
General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
OPPORTUNITY INCOME PLUS FUND L.P.
By: Spar Advisors, LLC, General
Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Member
FULL VALUE OFFSHORE PARTNERS L.P.
By: Full Value Advisors LLC, General
Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Member
FULL VALUE SPECIAL SITUATIONS FUND L.P.
By: Full Value Special Situations Fund
GP LLC, General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Member
FULL VALUE ADVISORS LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Member
XXXXXXX & WINTHROP, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
SPAR ADVISORS, LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Member
FULL VALUE SPECIAL SITUATIONS FUND GP LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Member
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
XXXXXXX XXXXXXXXX
/s/ Xxxxxx Xxxxx
-----------------------------------------
XXXXXX XXXXX
/s/ Xxxxxx Xxxxxx
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XXXXXX XXXXXX
