SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
Bexil Corporation
(Name of Issuer)
Common Stock
(Title of Class of Securities)
088 57 7 101
(CUSIP Number)
THOMAS B. WINMILL, ESQ.
11 Hanover Square, 12th Floor
New York, NY 10005
1-212-785-0900
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
December 23, 2005
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of the Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box. [ ]
--------------
|Number of |
|Shares |
|Beneficially |
|Owned by |
|Each |
|Reporting |
|Person with |
--------------
1 Names of Reporting Persons / I.R.S. Identification Nos. of Above Persons
(Entities Only)
Thomas B. Winmill / 140-56-8512
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2 Check the Appropriate Box If a Member of a Group (a) / /
(b) / /
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3 SEC Use Only
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4 Source of Funds PF
--------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e) / /
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6 Citizenship or Place of Organization USA
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7 Sole Voting Power 91,411.77 Shares
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8 Shared Voting Power 0
--------------------------------------------------------------------------------
9 Sole Dispositive Power 91,411.77 Shares
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10 Shared Dispositive Power 0
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11 Aggregate Amount Beneficially Owned by Each Reporting Person 91,411.77
Shares
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12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares / X /
--------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11) 9.87%
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14 Type of Reporting Person IN
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ITEM 1 SECURITY AND ISSUER
This Schedule 13D relates to the shares of Common Stock of Bexil
Corporation (the "Issuer"). The principal executive offices of the Issuer are
located at 11 Hanover Square, New York, NY 10005.
ITEM 2. IDENTITY AND BACKGROUND
(a) - (c) This Schedule 13D is being filed by Thomas B. Winmill (the
"Reporting Person"). His address is 11 Hanover Square, New York, NY 10005.
Further information is set forth in Exhibit A.
(d) None
(e) None
(f) Thomas B. Winmill is a citizen of the U.S.A.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Thomas B. Winmill used personal funds.
ITEM 4. PURPOSE OF TRANSACTION
The Reporting Person acquired the Shares for investment purposes.
Notwithstanding any of the foregoing, the Reporting Person may at any time
modify, change, abandon, or replace, some or all of the foregoing purposes and
plans and discussions relating thereto or discontinue or re-continue such
modifications, changes, abandonments, or replacements at any time.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(A) As of October 3, 2005, the Reporting Person believes the Issuer has
879,591 shares of Common Stock outstanding. Thomas B. Winmill is the
beneficial owner of 91,411.77 shares of Common Stock, including options
exercisable currently and within 60 days to purchase 46,107 shares, which
constitute approximately 9.87% of the outstanding shares of Common Stock
assuming the exercise of all such options. Thomas B. Winmill disclaims
beneficial ownership of 26,712 shares held by his spouse and sons.
(B) Power to vote and to dispose of the securities resides with the Reporting
Person.
(C) The following transactions were effected during the past sixty days:
N/A
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER
Thomas B. Winmill is a director, CEO, President and General Counsel of the
Issuer. The Board of Directors has an executive committee comprised of Thomas B.
Winmill.
See Exhibit A for further information.
Article XIV of the Issuer's charter provides that the name Bexil included
in the name of the Issuer shall be used pursuant to a royalty-free nonexclusive
license from Winmill & Co. Incorporated ("Winco") or a subsidiary of Winco. The
license may be withdrawn by Winco or its subsidiary at any time in their sole
discretion, in which case the Issuer shall have no further right to use the name
Bexil in its corporate name or otherwise and the Issuer, the holders of its
capital stock and its officers and directors, shall promptly take whatever
action may be necessary to change its name accordingly.
On December 23, 2005, Thomas B. Winmill entered into the Voting
Agreement. See Exhibit B.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit A: Certain information concerning the Issuer's directors
and executive officers.
Exhibit B: Voting Agreement dated as of December 23, 2005 among
York Insurance Holdings, Inc. and certain stockholders
of Bexil Corporation.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: December 29, 2005
By: /s/ Thomas B. Winmill
Name: Thomas B. Winmill
EXHIBIT A
The following information is taken from the Issuer's proxy statement dated
October 5, 2005, and is as of such date or, if so noted, as of October 3, 2005
(the "Record Date").
The table below sets forth certain information regarding the other
Directors currently serving on the Board of Directors of the Company. Unless
otherwise noted, the address of record for the Directors is 11 Hanover Square,
New York, New York 10005.
Other Public Company
Name, Principal Occupation, Business Experience for Past Five Years, Directorships
Address, and Age Director Since Held by Director
------------------------------------------------------------------------ ----------------- -----------------------------------
Non-interested Director:
Class I:
EDWARD G. WEBB, JR. - Mr. Webb has been an Equity Portfolio Manager 2004 -
for Advanced Asset Management Advisors, Inc. since October 2002. Mr.
Webb was President of Webb Associates, Ltd. from 1996 to 2004. Mr.
Webb was born on March 31, 1939.
Interested Director:
Class I:
THOMAS B. WINMILL - Mr. Winmill has served as President, Chief 1996 Foxby Corp., Global Income Fund,
Executive Officer and General Counsel of the Company since 1999 and in Inc., Midas Fund, Inc., Midas
other capacities since 1996 and as Vice Chairman of York Insurance Special Equities Fund, Inc., and
Services Group, Inc. ("York") since 2002. Since 1999, he has also Midas Dollar Reserves, Inc.
served as a director, President, Chief Executive Officer and General
Counsel of Winmill & Co. Incorporated ("WCI"), its affiliates, and of
the investment companies managed by its subsidiaries, Foxby Corp.,
Global Income Fund, Inc., Midas Fund, Inc., Midas Special Equities
Fund, Inc., and Midas Dollar Reserves, Inc. and in other capacities
since 1988. Mr. Winmill has also served as General Counsel of Tuxis
Corporation since 2002 and in other capacities since 1988. Mr. Winmill
is a member of the New York State Bar and the SEC Rules Committee of
the Investment Company Institute. Mr. Winmill was born on June 25,
1959.
Non-interested Directors:
Class II:
DOUGLAS WU - Since 1998, Mr. Wu has been a Principal of Maxwell 1997 -
Partners, prior to which, he was a Managing Director of Rothschild
Emerging Markets/Croesus Capital Management. Mr. Wu has been a
director of York since 2002. Mr. Wu was born on July 31, 1960.
Class III:
CHARLES A. CARROLL - From 1989 to the present, Mr. Carroll has been 2004 -
affiliated with Kalin Associates, Inc., a member firm of the New York
Stock Exchange. Mr. Carroll was born on December 18, 1930.
Interested Director:
Class III:
BASSETT S. WINMILL - Mr. Winmill is Chairman of the Board of the 1996 Tuxis Corporation and Global
Company since 1996, as well as Tuxis Corporation since 1983, Global Income Fund, Inc.
Income Fund, Inc. since 1996, and WCI and certain of its affiliates
since 1974. Mr. Winmill is a member of the New York Society of
Security Analysts, the Association for Investment Management and
Research, and the International Society of Financial Analysts. Mr.
Winmill was born on February 10, 1930.
Bassett S. Winmill, Chairman of the Board of the Company, is the
father of Thomas B. Winmill, the President, Chief Executive Officer, and General
Counsel of the Company.
COMMITTEES OF THE BOARD OF DIRECTORS
Governance, Compensation and Nominating Committee
The Governance, Compensation and Nominating Committee consists of Edward G.
Webb, Jr., Charles A. Carroll, and Douglas Wu, all of whom are independent
directors in accordance with the American Stock Exchange director independence
standards.
Audit Committee and Audit Committee Report
The Company has an Audit Committee currently comprised of Edward G. Webb,
Jr., Charles A. Carroll, and Douglas Wu.
Executive Committee
The Company has an Executive Committee comprised of Thomas B. Winmill,
the function of which is to exercise the powers of the Board of Directors
between meetings of the Board to the extent permitted by law to be delegated and
not delegated by the Board to any other committee.
STOCK OWNERSHIP BY CERTAIN BENEFICIAL OWNERS
The following table sets forth information regarding the direct
beneficial ownership of Company common stock as of October 3, 2005 by (i) each
director and executive officer and (ii) all directors and executive officers as
a group.
Name of Director, Nominee or Officer Number of Shares (Note) Percent of Outstanding Shares
------------------------------------------------------------------------------------ -----------------------------------
Non-interested Nominee:
Edward G. Webb, Jr. 1,500 (1) *
Non-interested Directors:
Charles A. Carroll 3,200 (1) *
Douglas Wu 2,000 (2) *
Interested Directors:
Bassett S. Winmill 276,292 (3,4) 31.41%
Thomas B. Winmill 91,412 (3) 10.39%
Officers:
Thomas O'Malley 0 *
John F. Ramirez 0 *
William G. Vohrer 4,000 (5) *
--------------------------------------- -----------------------------------
Total shares held by directors
and officers as a group 377,904 42.96%
======================================= ===================================
1. This amount includes 0 shares with respect to which such person has the right
to acquire beneficial ownership as specified in Rule 13d-3(d)(1) under the
Securities Exchange Act of 1934 (the "Exchange Act"), including the right to
acquire within sixty days, from options, warrants, rights, conversion privilege
or similar obligations.
2. This amount includes 2,000 shares with respect to which such person has the
right to acquire beneficial ownership as specified in Rule 13d-3(d)(1) under the
Exchange Act, including the right to acquire within sixty days, from options,
warrants, rights, conversion privilege or similar obligations.
3. This amount includes 46,107 shares with respect to which such person has the
right to acquire beneficial ownership as specified in Rule 13d-3(d)(1) under the
Exchange Act, including the right to acquire within sixty days, from options,
warrants, rights, conversion privilege or similar obligations.
4. Bassett S. Winmill has indirect beneficial ownership of 222,644 of these
shares, as a result of his status as a controlling person of WCI and Investor
Service Center, Inc., the direct beneficial owner. Mr. Winmill disclaims
beneficial ownership of the shares held by Investor Service Center, Inc. Bassett
S. Winmill is Thomas B. Winmill's father.
5. This amount includes 4,000 shares with respect to which such person has the
right to acquire beneficial ownership as specified in Rule 13d-3(d)(1) under the
Exchange Act, including the right to acquire within sixty days, from options,
warrants, rights, conversion privilege or similar obligations.
* Less than 1% of the outstanding shares.
Based on filings with the Securities and Exchange Commission, the
following stockholders beneficially owned 5% or more of the outstanding shares
of Company common stock as of the Record Date:
Approximate Percentage of the
Name and Address Common Stock Company's Total Outstanding Shares
-------------------------------------------- ------------------------ --------------------------------------
Fondren Management LP(1) 46,400 shares 5.3%
1177 West Loop South, Suite 1625
Houston, Texas 77027
Thomas B. Winmill* 91,412 shares 10.84%
11 Hanover Square
New York, New York 10005
Investor Service Center, Inc. 222,644 shares 25.31%
11 Hanover Square
New York, New York 10005
Winmill & Co. Incorporated ** 222,644 shares 25.31%
11 Hanover Square
New York, New York 10005
Bassett S. Winmill*** 266,292 shares 30.27%
11 Hanover Square
New York, New York 10005
--------------------------------------------------------------------------
(1) According to a Schedule 13G filed September 23, 2005.
* Thomas B. Winmill has indirect beneficial ownership of 26,712 of these shares
held by his spouse and sons. Mr. Winmill disclaims ownership of the shares held
by his spouse and sons. Include 46,107 shares with respect to which such person
has the right to acquire beneficial ownership as specified in Rule 13d-3(d)(1)
under the Exchange Act, including the right to acquire within sixty days, from
options, warrants, rights, conversion privilege or similar obligations.
** Winmill & Co. Incorporated has indirect beneficial ownership of these shares,
as a result of its status as a controlling person of Investor Service Center,
Inc., the direct beneficial owner.
*** Bassett S. Winmill has indirect beneficial ownership of 222,644 of these
shares, as a result of his status as a controlling person of Winmill & Co.
Incorporated and Investor Service Center, Inc., the direct beneficial owner. Mr.
Winmill disclaims beneficial ownership of the shares held by Investor Service
Center, Inc. Include 46,107 shares with respect to which such person has the
right to acquire beneficial ownership as specified in Rule 13d-3(d)(1) under the
Exchange Act, including the right to acquire within sixty days, from options,
warrants, rights, conversion privilege or similar obligations.
COMPENSATION
Summary Compensation Table
The following table sets forth compensation for the fiscal years ended
December 31, 2004, 2003 and 2002 received by the Reporting Person.
Annual Compensation Long-term compensation
-------------------------------------------------------------------------------------
Other annual Awards Payouts
compensation
($)
-------------------------------------- ----------
Securities Long-term
Restricted underlying incentive All other
Name and Principal Salary Bonus stock options/ plan compensation
Position Year ($) ($) award(s)($) SARs(#) payouts($) ($)
------------------------------------------------------------------------------------------------------------------------------
Thomas B Winmill 2004 300,000 35,000 0 60,000 0 5,850 (1)
President and Chief 2003 250,000 30,000 0 0 0 0
Executive Officer 2002 150,000 200,000 0 0 0 0
EXHIBIT B
VOTING AGREEMENT
by and
among
THE STOCKHOLDERS OF BEXIL CORPORATION NAMED HEREIN,
and
YORK INSURANCE HOLDINGS, INC.
DATED AS OF DECEMBER 23, 2005
VOTING AGREEMENT
VOTING AGREEMENT, dated as of December 23, 2005 (the "Agreement"), by and among
YORK INSURANCE HOLDINGS, INC., a Delaware corporation ("Buyer") and certain of
the stockholders ("Stockholders") of BEXIL CORPORATION, a Maryland corporation
("Bexil").
WHEREAS, in connection with the execution of this Agreement, Bexil and Buyer
entered into a Stock Purchase Agreement (the "Purchase Agreement") (capitalized
terms used but not defined herein shall have the meanings set forth in the
Purchase Agreement);
WHEREAS, as of the date hereof, each Stockholder beneficially owns (as such term
is defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder (the "Exchange
Act")) the number of shares of common stock of Bexil set forth opposite such
Stockholder's name on Schedule I hereto (such shares of common stock, together
with any other shares of stock of Bexil, the voting power over which is acquired
by such Stockholder during the period from and including the date hereof through
and including the date on which this Agreement is terminated in accordance with
its terms, the "Subject Shares"); and
WHEREAS, as a condition to their willingness to enter into the Purchase
Agreement, the Company and Buyer have required that the Stockholders enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements contained in this
Agreement and intending to be legally bound, the parties agree as follows:
ARTICLE I
VOTING AND CONSENT MATTERS
Section 1.1 Agreement to Vote and Execute Consents. Each Stockholder hereby
agrees that, from and after the date hereof until the termination of this
Agreement, at any duly called meeting of the stockholders of Bexil, and in any
action by written consent of the stockholders of Bexil, such Stockholder shall,
if a meeting is held, appear at the meeting, in person or by proxy, or otherwise
cause the Subject Shares to be counted as present thereat for purposes of
establishing a quorum, and it shall vote or consent (or cause to be voted or
consented), in person or by proxy, all the Subject Shares (a) in favor of
approval of the Purchase Agreement and the Bexil Sale and each of the other
transactions and other matters specifically contemplated by the Purchase
Agreement, (b) against any action or agreement submitted for approval of the
stockholders of Bexil that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Bexil or any
Bexil Subsidiary under the Purchase Agreement and (c) except as otherwise agreed
in writing by Buyer, against any action, agreement, transaction or proposal
submitted for approval of the stockholders of Bexil that would reasonably be
expected to result in any of the conditions to Bexil's obligations under the
Purchase Agreement not being fulfilled or that is intended, or would reasonably
be expected to, prevent, impede, interfere with, delay or adversely affect the
transactions contemplated by the Purchase Agreement. Any vote by such
Stockholder that is not in accordance with this Section 1.1 shall be considered
null and void. Such Stockholder shall not enter into any agreement or
understanding with any person or entity prior to the termination of this
Agreement to vote or give instructions in a manner inconsistent with clauses
(a), (b) or (c) of this Section 1.1.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders hereby severally represents and warrants to Buyer as
follows with respect to itself only:
Section 2.1 Existence; Authorization. Each Stockholder that is an entity is duly
organized, validly existing and in good standing (with respect to jurisdictions
that recognize such concept) under the laws of the jurisdiction of its
organization or formation and each Stockholder has all requisite power, capacity
and authority to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated by this Agreement.
This Agreement has been duly and validly executed and delivered by such
Stockholder and, assuming due execution and delivery by each of the other
parties hereto, this Agreement constitutes a legal, valid and binding obligation
of such Stockholder, enforceable against such Stockholder in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights, and to general
equitable principles.
Section 2.2 No Conflict; Required Filings and Consents.
(b) The execution and delivery of this Agreement by such Stockholder does not,
and the performance of this Agreement by such Stockholder will not, (i) conflict
with or violate the certificate of incorporation, bylaws or other organizational
documents, if any, as the case may be, of such Stockholder, (ii) conflict with
or violate any applicable Law by which any property or asset of such Stockholder
is bound or affected or (iii) result in any breach of, or constitute a default
(or event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any Subject Shares
(other than pursuant to this Agreement) pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation of such Stockholder (including any trust agreement,
voting agreement, stockholders agreement or voting trust).
(b) The execution and delivery of this Agreement by such Stockholder does not,
and the performance of this Agreement by such Stockholder shall not, require any
consent, approval, authorization or permit of, or filing with, or notification
to, any Governmental Entity, except where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or materially delay the ability of such Stockholder to carry
out its obligations under, and to consummate the transactions contemplated by,
this Agreement.
Section 2.3 Ownership of Shares. Such Stockholder is the record or beneficial
owner of, and has good title to, the Subject Shares set forth opposite its name
on Schedule I. Such Stockholder, together with its affiliates, has sole voting
power, and sole power of disposition, with respect to all of its Subject Shares.
The Subject Shares are all the securities of the Company owned, either of record
or beneficially, by such Stockholder as of the date hereof. The Subject Shares
owned by such Stockholder are free and clear of all Encumbrances, other than any
Encumbrances created by this Agreement. The Stockholder has not appointed or
granted any proxy inconsistent with this Agreement, which appointment or grant
is still effective, with respect to the Subject Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to each Stockholder as follows:
Section 3.1 Corporate Authorization. Buyer is duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
requisite power and authority to enter into and perform all of its obligations
under this Agreement and to consummate the transactions contemplated by this
Agreement. The execution, delivery, and performance of this Agreement by Buyer,
the performance of its obligations hereunder and the consummation by it of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of Buyer. This Agreement has been duly and validly executed
and delivered by Buyer and, assuming due execution and delivery by each of the
other parties hereto, constitutes a valid and binding agreement of Buyer,
enforceable against Buyer in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights, and to general equitable principles.
Section 3.2 No Conflict; Required Filings and Consents. Neither the execution
and delivery of this Agreement by Buyer nor the consummation by Buyer of the
transactions contemplated hereby nor compliance by Buyer with any of the
provisions hereof shall (a) conflict with or result in any breach of Buyer's
certificate of incorporation or bylaws or (b) result in any breach of, or
constitute a default (or event that with notice or lapse of time or both would
become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a Lien pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation of Buyer. Other than filings
required under the Exchange Act, the execution and delivery of this Agreement by
Buyer and the performance of this Agreement by Buyer do not require any filing
with, permit, authorization, notification, consent or approval of, any
Governmental Entity.
ARTICLE IV
COVENANTS OF THE STOCKHOLDERS
Each Stockholder severally, but not jointly and severally, hereby covenants and
agrees as follows with respect to itself only:
Section 4.1 Restriction on Transfer of Shares. Each Stockholder agrees that
until termination of this Agreement, such Stockholder shall not, directly or
indirectly through another Person, (i) offer for sale, sell (including short
sales), transfer, tender, pledge, encumber, assign or otherwise dispose of
(including by gift) or enter into any contract, option, derivative, hedging or
other arrangement or understanding (including any profit-sharing arrangement)
with respect to or consent to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, except in each case for
the conversion or exchange of shares of common stock in accordance with Section
4.2, (any of the foregoing, a "Transfer"), any or all of the Subject Shares or
any interest therein, except to any Affiliate of such Stockholder who agrees in
writing to be bound by the terms of this Agreement or Transfers which occur by
merger or otherwise, operation of Law or with Buyer's prior written consent,
(ii) grant any proxies or powers of attorney, deposit any of the Subject Shares
into a voting trust or enter into any other voting arrangement or permit to
exist any Encumbrance of any nature whatsoever with respect to the Subject
Shares (other than any Encumbrances created by or arising under this Agreement
or existing by operation of Law) or (iii) commit or agree to take any of the
foregoing actions.
Section 4.2 No Solicitation. Subject to Section 4.3, each Stockholder agrees
that, until the termination of this Agreement, such Stockholder shall not, and
shall cause its Representatives not to, directly or indirectly through another
Person, (i) solicit, initiate or knowingly encourage (including by way of
furnishing information), or take any other action designed to facilitate, any
inquiries or the making of any proposal that constitutes, or could reasonably be
expected to lead to, a Takeover Proposal, (ii) enter into, continue or otherwise
participate in any discussions or negotiations with, or disclose or provide any
non-public information or data relating to the Company, the Company's
Subsidiaries or Bexil to, or otherwise afford access to the properties, books or
records of Bexil or the Bexil Subsidiaries to, any third party or any
Representatives thereof with respect to any Takeover Proposal; provided,
however, that nothing herein shall prevent any Stockholder or any of its
Representatives from acting in his or her capacity as a director of Bexil. Each
Stockholder shall, and shall cause its Representatives to, cease immediately and
cause to be terminated any and all existing discussions, conversations,
negotiations and other communications with any Person other than Buyer and its
Representatives conducted heretofore with respect to, or that could reasonably
be expected to lead to, a Takeover Proposal.
Section 4.3 Stockholder Agreement Capacity. No Person executing this Agreement
who is or becomes during the term hereof a director or officer of Bexil shall be
deemed to make any agreement or understanding in this Agreement in such Person's
capacity as a director or officer. Each Stockholder is entering into this
Agreement solely in its capacity as the record holder or beneficial owner of
such Stockholder's Subject Shares and nothing herein shall limit or affect any
actions taken by a stockholder in its capacity as a director or officer of
Bexil.
Section 4.4 Certain Events. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Subject Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of the Subject
Shares shall pass, whether by operation of Law or otherwise, including without
limitation the Stockholder's administrators, successors or receivers.
ARTICLE V
MISCELLANEOUS
Section 5.1 Termination. This Agreement shall automatically terminate, and none
of Buyer or any Stockholder shall have any rights or obligations hereunder and
this Agreement shall become null and void and have no further effect, upon the
earliest to occur of (a) the mutual consent of all of the parties hereto, (b)
the Closing and (c) the date of termination of the Purchase Agreement in
accordance with its terms.
Section 5.2 Non-Survival of Representations and Warranties. None of the
representations and warranties in this Agreement shall survive the termination
of this Agreement. This Section 5.2 shall not limit any covenant or agreement of
the parties contained herein which by its terms contemplates performance after
the termination of this Agreement.
Section 5.3 Notices. Any notices or other communications required or permitted
under, or otherwise in connection with this Agreement shall be in writing and
shall be deemed to have been duly given when delivered in person or on receipt
after dispatch by registered or certified mail, postage prepaid, addressed, or
on receipt if transmitted by national overnight courier, in each case as
follows:
If to Buyer, addressed to it at:
c/o Odyssey Investment Partners, LLC
280 Park Avenue, 38th Floor West
New York, New York 10017
Attention: Douglas Rotatori
Jeffrey McKibben
Facsimile: (212) 351-7925
E-Mail: drotatori@odysseyinvestment.com
jmckibben@odysseyinvestment.com
with a copy to:
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022
Attn: Robert Kennedy
Facsimile: (212) 751-4864
E-Mail: robert.kennedy@lw.com
If to the Stockholders, to:
Bexil Corporation
11 Hanover Square
New York, New York 10005
Attention: Thomas B. Winmill
Facsimile: (212) 363-1101
E-Mail: twinmill@bexil.com
With copies to:
Ropes & Gray LLP
45 Rockefeller Plaza
New York, New York 10111-0087
Attention: Joshua A. Leuchtenburg, Esq.
Facsimile: (212) 841-5725
E-Mail: Joshua.Leuchtenburg@ropesgray.com
Section 5.4 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section 5.5 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of Law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
Section 5.6 Entire Agreement. This Agreement constitutes the entire agreement,
and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
Section 5.7 Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto, in
whole or in part (whether by operation of Law or otherwise), without the prior
written consent of the other parties, and any attempt to make any such
assignment without such consent shall be null and void.
Section 5.8 Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their respective successors and
assigns, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
Section 5.9 Mutual Drafting. This Agreement shall be construed without regard to
any presumption or rule requiring construction or interpretation against the
party drafting or causing this Agreement to be drafted.
Section 5.10 Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury.
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(a) This Agreement and the transactions contemplated hereby, and all disputes
between the parties under or related to the Agreement, whether in Contract, tort
or otherwise, shall be governed by and construed in accordance with the Laws of
the State of Maryland, applicable to contracts executed in and to be performed
entirely within the State.
(b) Each of the parties hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the exclusive jurisdiction of the state or
federal courts of the State of Maryland in any action or proceeding arising out
of or relating to this Agreement or the agreements delivered in connection
herewith or the transactions contemplated hereby or thereby or for recognition
or enforcement of any judgment relating thereto, and each of the parties hereby
irrevocably and unconditionally (i) agrees not to commence any such action or
proceeding except in such court, (ii) agrees that any claim in respect of any
such action or proceeding may be heard and determined in such court, (iii)
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any such
action or proceeding in such court, and (iv) waives, to the fullest extent
permitted by Law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in such court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law. Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 5.3. Nothing in this
Agreement shall affect the right of any party to this Agreement to serve process
in any other manner permitted by Law.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT MAY INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION
HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (I) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (II) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (III)
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.10(c).
Section 5.11 Amendment: Waiver. No provision of this Agreement may be waived
unless in writing signed by all of the parties to this Agreement, and the waiver
of any one provision of this Agreement shall not be deemed to be a waiver of any
other provision. This Agreement may be amended, supplemented or otherwise
modified only by a written agreement executed by all of the parties to this
Agreement.
Section 5.12 Further Assurances. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be reasonably
necessary to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
Section 5.13 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any of the provisions of this Agreement were not
to be performed in accordance with the terms hereof and that the parties shall
be entitled to seek specific performance of the terms hereof in addition to any
other remedies at Law or in equity.
Section 5.14 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, a duly authorized representative of each of the parties
hereto have executed this Agreement as of the date first above written.
BASSETT S. WINMILL
/s/Bassett S. Winmill
SARAH J. WINMILL
/s/Sarah J. Winmill
INVESTOR SERVICE CENTER, INC.
By:/s/Thomas B. Winmill
Name: Thomas B. Winmill
Title: President
THOMAS B. WINMILL
/s/Thomas B. Winmill
MARY CHRISTINE W. WINMILL
/s/Mary Christine W. Winmill
CHARLES A. CARROLL
/s/Charles A. Carroll
EDWARD G. WEBB, JR.
/s/Edward G. Webb, Jr.
YORK INSURANCE HOLDINGS, INC., a Delaware corporation
By:/s/Douglas W. Rotatori
Name: Douglas W. Rotatori
Title: CEO and President
SCHEDULE I
Name of Record Owner Shares of Common Stock
Bassett S. Winmill 5,995.973
Sarah J. Winmill 1,698.920
Investor Service Center, Inc. 222,644.000
Thomas B. Winmill 18,870.770
Mary Christine W. Winmill 26,434.000
Charles A. Carroll 3,200.000
Edward G. Webb, Jr 1,500.000
Total 280,343.663