sec document
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. )(1)
Dynabazaar, Inc.
----------------
(Name of Issuer)
Common Stock, Par Value $0.001 Per Share
----------------------------------------
(Title of Class of Securities)
26779R104
---------
(CUSIP Number)
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
--------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 20, 2007
-----------------
(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 this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box / /.
NOTE. Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. SEE Rule 13d-7 for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 31 Pages)
--------
(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, SEE the
NOTES).
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 2 of 31 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
STARBOARD VALUE & OPPORTUNITY FUND, LLC
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 1,470
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,470
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,470
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
LESS THAN 1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 3 of 31 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
ADMIRAL ADVISORS, LLC
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 1,470
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,470
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,470
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
LESS THAN 1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IA, OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 4 of 31 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
RAMIUS HALIFAX PARTNERS, L.P.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY - 0 -
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
- 0 -
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 5 of 31 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
RAMIUS SECURITIES, L.L.C.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 48,761
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
48,761
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
48,761
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
LESS THAN 1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
BD, OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 6 of 31 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
RAMIUS CAPITAL GROUP, L.L.C.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 50,231
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
50,231
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
50,231
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
LESS THAN 1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IA, OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 7 of 31 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
C4S & CO., L.L.C.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 50,231
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
50,231
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
- 0 -
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
LESS THAN 1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 8 of 31 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
PETER A. COHEN
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY - 0 -
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 50,231
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
50,231
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
50,231
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
LESS THAN 1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 9 of 31 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
MORGAN B. STARK
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY - 0 -
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 50,231
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
50,231
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
50,231
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
LESS THAN 1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 10 of 31 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JEFFREY M. SOLOMON
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY - 0 -
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 50,231
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
50,231
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
50,231
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
LESS THAN 1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 11 of 31 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
THOMAS W. STRAUSS
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY - 0 -
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH 50,231
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
- 0 -
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
50,231
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
50,231
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
LESS THAN 1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 12 of 31 Pages
---------------------- ----------------------
The following constitutes the Schedule 13D filed by the undersigned
(the "Schedule 13D"). The undersigned were previously part of a Section 13(d)
reporting group that included Barington Companies Equity Partners, L.P. and MM
Companies, Inc. That Section 13(d) reporting group was terminated on January 11,
2007. For ownership information relating to the undersigned prior to the filing
of this Schedule 13D, please make reference to Amendment No. 2 to Schedule 13D
filed by Barington Companies Equity Partners, L.P. with the Securities and
Exchange Commission (the "SEC") on January 23, 2004, as amended by that certain
Amendment No. 3 filed with the SEC on May 25, 2004 and that certain Amendment
No. 4 filed with the SEC on January 11, 2007.
Item 1. SECURITY AND ISSUER.
This statement relates to shares of the Common Stock, par value
$0.001 per share (the "Shares"), of Dynabazaar, Inc. (the "Issuer"). The
address of the principal executive offices of the Issuer is 888 Seventh Ave.,
17th floor, New York, New York 10019.
Item 2. IDENTITY AND BACKGROUND.
(a) This statement is filed by:
(i) Starboard Value & Opportunity Fund, LLC, a Delaware limited
liabiltiy company ("Starboard"), with respect to the Shares
directly and beneficially owned by it;
(ii) Admiral Advisors, LLC, a Delaware limited liability company
("Admiral Advisors"), who serves as the managing member of
Starboard;
(iii) Ramius Securities, L.L.C., a Delaware limited liability
company and registered broker-dealer ("Ramius Securities");
(iv) Ramius Halifax Partners L.P., a Delaware limited partnership
that is engaged in investing in a multi-strategy portfolio
("Ramius Halifax");
(v) Ramius Capital Group, L.L.C., a Delaware limited liability
company ("Ramius Capital"), who serves as the sole member of
Admiral Advisors and Ramius Securities and the general partner
of Ramius Halifax;
(vi) C4S & Co., L.L.C., a Delaware limited liability company
("C4S"), who serves as managing member of Ramius Capital;
(vii) Peter A. Cohen ("Mr. Cohen"), who serves as one of the
managing members of C4S;
(viii) Morgan B. Stark ("Mr. Stark"), who serves as one of the
managing members of C4S;
(ix) Thomas W. Strauss ("Mr. Strauss"), who serves as one of the
managing members of C4S; and
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 13 of 31 Pages
---------------------- ----------------------
(x) Jeffrey M. Solomon ("Mr. Solomon"), who serves as one of the
managing members of C4S;
Each of the foregoing is referred to as a "Reporting Person" and
collectively as the "Reporting Persons." Each of the Reporting Persons is party
to that certain Joint Filing Agreement, as further described in Item 6.
Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.
(b) The address of the principal office of each of Starboard,
Admiral Advisors, Ramius Securities, Ramius Halifax, Ramius Capital, C4S, Mr.
Cohen, Mr. Stark, Mr. Strauss and Mr. Solomon is 666 Third Avenue, 26th Floor,
New York, New York 10017.
(c) The principal business of Starboard is serving as a private
investment fund. Starboard was been formed for the purpose of making equity
investments and, on occasion, taking an active role in the management of
portfolio companies in order to enhance shareholder value. The principal
business of Ramius Securities is as a registered broker-dealer. The principal
business of Ramius Halifax is serving as a partnership engaged in investing in a
multi-strategy portfolio. The principal business of Admiral Advisors is acting
as managing member of Starboard. Ramius Capital is engaged in money management
and investment advisory services for third parties and proprietary accounts. C4S
serves as managing member of Ramius Capital. Mr. Cohen, Mr. Strauss, Mr. Stark
and Mr. Solomon serve as co-managing members of C4S.
(d) No Reporting Person has, during the last five years, been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) No Reporting Person has, during the last five years, been party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) Messrs. Cohen, Stark, Strauss and Solomon are citizens of the
United States of America.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Shares beneficially owned by Starboard and Ramius Securities
were purchased with the working capital of such entities (which may, at any
given time, include margin loans made by brokerage firms in the ordinary
course of business) in open market purchases, except as otherwise noted.
Transactions in the Shares in the past 60 days by Starboard and Ramius
Securities are set forth in Schedule A, which is incorporated by reference
herein. The aggregate purchase cost of the 50,231 Shares beneficially owned
in the aggregate by Starboard and Ramius Securities is approximately
$18,083.16, including brokerage commissions.
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 14 of 31 Pages
---------------------- ----------------------
Item 4. PURPOSE OF TRANSACTION.
The Reporting Persons originally purchased the Shares based on the
Reporting Persons' belief that the Shares, when purchased, were undervalued and
represented an attractive investment opportunity. Depending upon overall market
conditions, other investment opportunities available to the Reporting Persons,
and the availability of Shares at prices that would make the purchase or sale of
Shares desirable, the Reporting Persons may endeavor to increase or decrease
their position in the Issuer through, among other things, the purchase or sale
of Shares on the open market or in private transactions or otherwise, on such
terms and at such times as the Reporting Persons may deem advisable.
No Reporting Person has any present plan or proposal which would
relate to or result in any of the matters set forth in subparagraphs (a) - (j)
of Item 4 of Schedule 13D except as set forth herein or such as would occur upon
completion of any of the actions discussed above.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
The aggregate percentage of Shares reported owned by each person
named herein is based upon 23,691,756 Shares outstanding, as of November 11,
2006, which is the total number of Shares outstanding as reported in the
Issuer's Quarterly Report on Form 10-Q, filed with the Securities and Exchange
Commission on November 14, 2006.
A. Starboard
(a) As of the date of this filing, Starboard beneficially owns 1,470
Shares.
Percentage: Less than 1% as of the date hereof.
(b) 1. Sole power to vote or direct vote: 1,470
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 1,470
4. Shared power to dispose or direct the disposition: 0
(c) The transactions in the Shares by Starboard within the past 60
days are set forth in Schedule A and incorporated by reference.
B. Ramius Securities
(a) As of the date of this filing, Ramius Securities beneficially
owns 48,761 Shares.
Percentage: Less than 1% as of the date hereof.
(b) 1. Sole power to vote or direct vote: 48,761
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 48,761
4. Shared power to dispose or direct the disposition: 0
(c) The transactions in the Shares by Ramius Securities within the
past 60 days are set forth in Schedule A and incorporated by
reference.
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 15 of 31 Pages
---------------------- ----------------------
C. Ramius Halifax
(a) As of the date of this filing, Ramius Halifax did not
beneficially own any Shares.
Percentage: 0% as of the date hereof.
(b) 1. Sole power to vote or direct vote: 0
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 0
4. Shared power to dispose or direct the disposition: 0
(c) The transactions in the Shares by Ramius Halifax within the past
60 days are set forth in Schedule A and incorporated by reference.
D. Admiral Advisors
(a) As of the date of this filing, as the managing member of
Starboard, Admiral Advisors may be deemed the beneficial owner of
(i) 1,470 Shares beneficially owned by Starboard.
Percentage: Less than 1% as of the date hereof.
(b) 1. Sole power to vote or direct vote: 1,470
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 1,470
4. Shared power to dispose or direct the disposition: 0
(c) Admiral Advisors did not enter into any transactions in the
Shares in the past 60 days. The transactions in the Shares in the
past 60 days on behalf of Starboard, which, except as otherwise
noted, were all in the open market, are set forth in Schedule A,
and incorporated by reference.
E. Ramius Capital
(a) As of the date of this filing, as the sole member of Admiral
Advisors and as the sole member of Ramius Securities, Ramius
Capital may be deemed the beneficial owner of (i) 1,470 Shares
beneficially owned by Starboard and (ii) 48,761 Shares
beneficially owned by Ramius Securities.
Percentage: Less than 1% as of the date hereof.
(b) 1. Sole power to vote or direct vote: 50,231
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 50,231
4. Shared power to dispose or direct the disposition: 0
(c) The transactions in the Shares by Ramius Capital and those on
behalf of Starboard and Ramius Securities, within the past 60
days, are set forth in Schedule A and incorporated by reference.
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 16 of 31 Pages
---------------------- ----------------------
F. C4S
(a) As of the date of this filing, as the managing member of Ramius
Capital, C4S may be deemed the beneficial owner of (i) 1,470
Shares beneficially owned by Starboard and (ii) 48,761 Shares
beneficially owned by Ramius Securities.
Percentage: Less than 1% as of the date hereof.
(b) 1. Sole power to vote or direct vote: 50,231
2. Shared power to vote or direct vote: 0
3. Sole power to dispose or direct the disposition: 50,231
4. Shared power to dispose or direct the disposition: 0
(c) C4S did not enter into any transactions in the Shares in the past
60 days. The transactions in the Shares in the past 60 days on
behalf of Starboard, Ramius Securities, Ramius Halifax and Ramius
Capital, which, except as otherwise noted, were all in the open
market, are set forth in Schedule A, and incorporated herein by
reference.
G. Mr. Cohen, Mr. Stark, Mr. Strauss and Mr. Solomon
(a) As of the date of this filing, as the managing members of C4S,
each of Mr. Cohen, Mr. Stark, Mr. Strauss and Mr. Solomon may be
deemed the beneficial owners of (i) 1,470 Shares beneficially
owned by Starboard and (ii) 48,761 Shares beneficially owned by
Ramius Securities.
Percentage: Less than 1% as of the date hereof.
(b) 1. Sole power to vote or direct vote: 0
2. Shared power to vote or direct vote: 50,231
3. Sole power to dispose or direct the disposition: 0
4. Shared power to dispose or direct the disposition: 50,231
(c) None of Mr. Cohen, Mr. Stark, Mr. Strauss or Mr. Solomon has
entered into any transactions in the Shares in the past 60 days.
The transactions in the Shares in the past 60 days on behalf of
Starboard, Ramius Securities, Ramius Halifax and Ramius Capital,
which, except as otherwise noted, were all in the open market,
are set forth in Schedule A, and incorporated herein by
reference.
(d) No person other than the Reporting Persons is known to have the
right to receive, or the power to direct the receipt of dividends
from, or proceeds from the sale of, such shares of the Common
Stock.
(e) As of March 1, 2007, the Reporting Persons ceased to be the
collective beneficial owners of more than 5% of the Issuer's
Shares.
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 17 of 31 Pages
---------------------- ----------------------
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
On March 2, 2007, Starboard, Admiral Advisors, Ramius Securities,
Ramius Halifax, Ramius Capital, C4S, Mr. Cohen, Mr. Solomon, Mr. Stark and Mr.
Strauss (collectively, the "Group") entered into a Joint Filing Agreement (the
"Joint Filing Agreement") in which the parties agreed to the joint filing on
behalf of each of them of statements on Schedule 13D with respect to the
securities of the Issuer to the extent required by applicable law. The Joint
Filing Agreement is attached as Exhibit 1 hereto and is incorporated herein by
reference.
On February 20, 2007, Ramius Capital, Ramius Securities, Ramius
Halifax and Starboard (collectively the "Sellers") collectively entered into a
Stock Purchase Agreement with Barington Capital Group, L.P. and Barington
Companies Offshore Fund, Ltd., (collectively the "Purchasers") with respect to
the sale of 1,507,030 Shares of the Issuer, at a price of $0.32 per Share, from
the Sellers to the Purchasers. The Stock Purchase Agreement is attached as
Exhibit 3 hereto and is incorporated herein by reference.
Other than as described herein, there are no contracts,
arrangements, understandings or relationships among the Reporting Persons, or
between the Reporting Persons and any other person, with respect to the
securities of the Issuer.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
1. Joint Filing Agreement by and among Starboard, Admiral Advisors,
Ramius Securities, Ramius Halifax, Ramius Capital, C4S, Mr.
Cohen, Mr. Stark, Mr. Solomon and Mr. Strauss, dated March 2,
2007.
2. Power of Attorney for Peter A. Cohen, Morgan B. Stark, Thomas W.
Strauss and Jeffrey M. Solomon, dated March 11, 2005.
3. Stock Purchase Agreement, by and among Ramius Capital, Ramius
Securities, Starboard, Ramius Halifax, Barington Capital Group,
L.P. and Barington Companies Offshore Fund, Ltd., dated February
20, 2007.
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CUSIP No. 26779R104 13D Page 18 of 31 Pages
---------------------- ----------------------
SIGNATURES
After reasonable inquiry and to the best of his knowledge and
belief, each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: March 2, 2007
STARBOARD VALUE & OPPORTUNITY RAMIUS SECURITIES, L.L.C.
FUND, LLC.
ADMIRAL ADVISORS, LLC
By: Admiral Advisors, LLC, its
managing member By: Ramius Capital Group, L.L.C.,
its managing member
RAMIUS HALIFAX PARTNERS, L.P.
By: Ramius Capital Group, L.L.C.,
its general partner
RAMIUS CAPITAL GROUP, L.L.C.
By: C4S & Co., L.L.C.,
as managing member
C4S & CO., L.L.C.
By: /s/ Jeffrey M. Solomon
------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
/s/ Jeffrey M. Solomon
--------------------------
JEFFREY M. SOLOMON
Individually and as attorney-in-fact
for Peter A. Cohen, Morgan B. Stark
and Thomas W. Strauss
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CUSIP No. 26779R104 13D Page 19 of 31 Pages
---------------------- ----------------------
SCHEDULE A
TRANSACTIONS IN THE SHARES DURING THE PAST 60 DAYS
Shares of Common Stock Price Per Date of
Purchased/(Sold) Share($) Purchase/Sale
---------------- -------- -------------
STARBOARD VALUE & OPPORTUNITY FUND, LLC
(727,428)* 0.3200 02/20/07
RAMIUS SECURITIES L.L.C.
(101,981)* 0.3200 02/20/07
RAMIUS HALIFAX PARTNERS, L.P.
(313,695)* 0.3200 02/20/07
RAMIUS CAPITAL GROUP, L.L.C.
(313,695)* 0.3200 02/20/07
* The shares reported as sold by Starboard Value & Opportunity Fund, LLC, Ramius
Securities L.L.C., Ramius Halifax Partners , L.P. and Ramius Capital Group,
L.L.C., were sold to Barington Capital Group, L.P. and Barington Companies
Offshore Fund, Ltd. in a series of private transactions beginning on February
20, 2007, pursuant to a Stock Purchase Agreement, executed on February 20, 2007.
The price per unit for these 1,456,799 shares on the date of sale was $0.3200.
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 20 of 31 Pages
---------------------- ----------------------
EXHIBIT INDEX
Exhibit Page
------- ----
1. Joint Filing Agreement by and among Starboard, Admiral
Advisors, Ramius Securities, Ramius Halifax, Ramius
Capital, C4S, Mr. Cohen, Mr. Stark, Mr. Solomon and Mr.
Strauss, dated March 2, 2007. 21
2. Power of Attorney for Peter A. Cohen, Morgan B. Stark,
Thomas W. Strauss and Jeffrey M. Solomon, dated March 11,
2005 22
3. Stock Purchase Agreement, by and among Ramius Capital Group
L.L.C., Ramius Securities, LLC and Starboard, Ramius
Halifax, Barington Capital Group, L.P. and Barington
Companies Offshore Fund, Ltd., dated February 20, 2007. 23 to 31
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CUSIP No. 26779R104 13D Page 21 of 31 Pages
---------------------- ----------------------
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1)(iii) under the Securities
Exchange Act of 1934, as amended, the persons named below agree to the joint
filing on behalf of each of them of a Statement on Schedule 13D dated March 2,
2007 (including amendments thereto) with respect to the Common Stock of
Dynabazaar, Inc. This Joint Filing Agreement shall be filed as an Exhibit to
such Statement.
Dated: March 2, 2007
STARBOARD VALUE & OPPORTUNITY RAMIUS SECURITIES, L.L.C.
FUND, LLC.
ADMIRAL ADVISORS, LLC
By: Admiral Advisors, LLC, its
managing member By: Ramius Capital Group, L.L.C.,
its managing member
RAMIUS HALIFAX PARTNERS, L.P.
By: Ramius Capital Group, L.L.C.,
its general partner
RAMIUS CAPITAL GROUP, L.L.C.
By: C4S & Co., L.L.C.,
as managing member
C4S & CO., L.L.C.
By: /s/ Jeffrey M. Solomon
------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
/s/ Jeffrey M. Solomon
--------------------------
JEFFREY M. SOLOMON
Individually and as attorney-in-fact
for Peter A. Cohen, Morgan B. Stark
and Thomas W. Strauss
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CUSIP No. 26779R104 13D Page 22 of 31 Pages
---------------------- ----------------------
POWER OF ATTORNEY
The undersigned hereby appoints Peter A. Cohen, Morgan B. Stark, Thomas W.
Strauss and Jeffrey M. Solomon, or any of them, his true and lawful attorney-in
fact and agent to execute and file with the Securities and Exchange Commission
any Schedule 13D, Schedule 13G, any amendments thereto and any related
documentation which may be required to be filed in his individual capacity as a
result of the undersigned's beneficial ownership of, or participation in a group
with respect to, securities directly or indirectly beneficially owned by Ramius
Capital Group, LLC or any of its affiliates, and granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing which he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent may lawfully do or cause to
be done by virtue hereof. The authority of Peter A. Cohen, Morgan B. Stark,
Thomas W. Strauss and Jeffrey M. Solomon, or any of them, under this Power of
Attorney shall continue with respect to the undersigned until the undersigned is
no longer required to file Schedule 13Ds or Schedule 13Gs unless revoked earlier
in writing.
Date: March 11, 2005
/s/ Peter A. Cohen
---------------------------------------
Peter A. Cohen
/s/ Morgan B. Stark
---------------------------------------
Morgan B. Stark
/s/ Jeffrey M. Solomon
---------------------------------------
Jeffrey M. Solomon
/s/ Thomas W. Strauss
---------------------------------------
Thomas W. Strauss
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 23 of 31 Pages
---------------------- ----------------------
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made as of this 20th day of
February, 2007, by and among Ramius Halifax Partners, L.P., Ramius Capital Group
L.L.C., Ramius Securities, L.L.C. and Starboard Value & Opportunity Fund, LLC
(collectively, the "Sellers"), and Barington Capital Group, L.P. and Barington
Companies Offshore Fund, Ltd. (collectively, the "Purchasers").
R E C I T A L S
WHEREAS, the Sellers are significant stockholders of Dynabazaar, Inc.,
a publicly-traded Delaware corporation (the "Company");
WHEREAS, the Purchasers, or certain affiliates of the Purchasers, (a) are
significant stockholders of the Company, (b) provide certain administrative and
financial advisory services to the Company and (c) certain officers of
Purchasers and/or its affiliates are officers and/or members of the Board of
Directors of the Company;
WHEREAS, the Sellers are the beneficial owner of an aggregate of 1,507,030
shares of common stock, par value $0.001 per share, of the Company (the
"Shares"), as further described on SCHEDULE A hereto;
WHEREAS, the Sellers desires to sell to the Purchasers, and the Purchasers
desire to purchase from the Sellers, the Shares in accordance with the terms and
subject to the conditions set forth in this Agreement; and
WHEREAS, this Agreement and the transactions set forth herein have been
unanimously approved by the Board of Directors of the Company, including each
director of the Company that has no interest in the transactions.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements, representations and warranties contained herein, the parties hereto,
intending to be legally bound hereby, do hereby agree as follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 SALE OF THE SHARES. Subject to the terms and conditions hereof, the
Sellers hereby sell, assign, transfer, convey and deliver to the Purchasers, and
the Purchasers hereby purchase and accept the assignment, transfer, conveyance
and delivery from the Sellers of, all right, title and interest of Sellers in
and to the Shares, as set forth on SCHEDULE B hereto.
1.2 CONSIDERATION FOR SHARES. In consideration of the sale, assignment,
transfer, conveyance and delivery of the Shares pursuant to Section 1.1 hereof,
the Purchasers hereby agree to pay to the Sellers a purchase price (the
"Purchase Price") equal to $0.32 per Share, or an aggregate of $482,249.60
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CUSIP No. 26779R104 13D Page 24 of 31 Pages
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1.3 CLOSING. The transactions contemplated by this Agreement shall be
consummated at a closing (the "Closing"), which shall be held at the offices of
the Company located at 888 Seventh Avenue, 17th Floor, New York, New York, at
9:00 a.m. on the date the conditions to Closing set forth in Article II hereof
are satisfied. The date on which the Closing occurs is referred to herein as the
"Closing Date." Upon mutual agreement of the parties hereto, the Shares may be
transferred from Sellers to Purchasers in more than one Closing.
1.4 CLOSING TRANSACTIONS. (a) SELLERS' DELIVERY OBLIGATIONS. The Sellers
shall (i) deliver to the Purchasers certificates evidencing the Shares, each
duly endorsed in blank or accompanied by a stock power duly endorsed in blank,
in form reasonably satisfactory to the Purchasers and with all required stock
transfer tax stamps affixed; provided that, to the extent that the Sellers do
not maintain physical possession of the Shares, the Sellers may effect delivery
thereof through customary book-entry transfers through one or more brokers; and
(ii) execute and deliver or cause to be executed and delivered such other
documents or agreements and take such other action as may be reasonably
necessary or appropriate to consummate the transfer of the Shares to the
Purchasers.
(b) THE PURCHASERS' DELIVERY OBLIGATIONS. The Purchasers shall deliver to
the Sellers the Purchase Price (or portion thereof in the event the Shares are
to be transferred in more than one Closing) by wire transfer of immediately
available funds to such account as is designated by the Sellers to the
Purchasers on the Closing Date.
ARTICLE II
CONDITIONS TO CLOSING
2.1 Conditions to Obligations of the Purchasers. The obligations of the
Purchasers under this Agreement, including, without limitation, to pay the
Purchase Price to the Sellers, are subject to the conditions that (a) the
Sellers' representations and warranties in this Agreement shall have been true
and correct on the date hereof and on the Closing Date, (b) the Sellers shall
have complied in all material respects with all covenants required by this
Agreement to be complied with by them on or before the Closing Date and (c) the
Purchasers shall have received (i) this Agreement duly executed on behalf of the
Sellers and (ii) the Shares.
2.2 Conditions to Obligations of the Sellers. The obligations of the
Sellers under this Agreement, including, without limitation, to sell, assign,
transfer, convey and deliver the Shares to the Purchasers, are subject to the
conditions that (a) the Purchasers' representations and warranties in this
Agreement shall have been true and correct on the date hereof and on the Closing
Date, (b) the Purchasers shall have complied in all material respects with all
covenants required by this Agreement to be complied with by it on or before the
Closing Date and (c) the Sellers shall have received (i) this Agreement duly
executed on behalf of the Purchasers and (ii) payment of the Purchase Price (or
portion thereof in the event the Sahres are to be transferred in more than one
Closing) from the Purchasers.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
The Sellers hereby represent and warrant to the Purchasers as of the date
of this Agreement and the Closing Date as follows:
3.1 Due Authorization and Validity. Each Seller entity party hereto has
all requisite power and authority to enter into this Agreement, to perform such
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 25 of 31 Pages
---------------------- ----------------------
Seller's obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by each
Seller entity party hereto and, subject to the due execution and delivery by the
Purchasers, this Agreement constitutes the legal, valid and binding obligation
of such Seller, enforceable against such Seller in accordance with its terms.
3.2 Ownership. Each Seller entity has good and marketable title to the
Shares shown as owned by such Seller entity on Schedule A hereto. Upon the
consummation of the transactions contemplated by this Agreement, the Purchasers
will acquire good, valid and marketable title to the Shares, free and clear of
all security interests, liens, claims, charges, options or other encumbrance or
restriction of any kind (collectively, a "Lien"), other than Liens on securities
held in margin accounts to be terminated on or prior to the Closing Date and any
Liens that may be created by the Purchasers. No Seller has appointed or granted
any proxy with respect to the Shares, which appointment or grant shall still be
effective at the closing of the transactions contemplated by this Agreement.
3.3 Government and Other Consents. No consent, declaration, filing,
approval, authorization or order of, notice to, or registration with, any court
or federal, state, provincial, municipal, foreign or other governmental
department, commission, board, bureau, agency or instrumentality or arbitration
tribunal, wherever located (a "Governmental Authority"), or any third party is
required in connection with the execution and delivery by the Sellers of this
Agreement or the consummation of any transactions contemplated hereby, except
for (a) such filings with the Securities and Exchange Commission (the "SEC") as
are required to disclose the sale of the Shares by the Sellers and to amend or
supplement any of the Sellers' existing filings with the SEC on Form 4, Schedule
13D or Schedule 13G, as the case may be, and (b) such consents, declarations,
filings, approvals, authorizations, orders, notices or registrations the absence
of which would not, either individually or in the aggregate, have a material
adverse effect on the transactions contemplated by this Agreement.
3.4 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by the
Sellers or on the Sellers' behalf.
3.5 Information and Experience. By reason of the Sellers' business or
financial experience, the Sellers are capable of evaluating the merits and risks
of the sale of the Shares and have the ability to protect their own interests in
this transaction. The Sellers are sophisticated sellers with respect to the sale
of securities such as the Shares and have independently and without reliance
upon the Purchasers, and based upon such information as the Sellers deem
appropriate, made their own analysis and decision to sell the Shares to the
Purchasers.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
The Purchasers hereby represents and warrants to the Sellers as of the
date of this Agreement and the Closing Date as follows:
4.1 Due Authorization and Validity. Each Purchaser has all requisite power
and authority to enter into this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby. This Agreement has been
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 26 of 31 Pages
---------------------- ----------------------
duly and validly executed and delivered by each Purchaser and, subject to the
due execution and delivery by the Sellers, this Agreement constitutes the legal,
valid and binding obligation of each Purchaser, enforceable against each
Purchaser in accordance with its terms.
4.3 Government and Other Consents. No consent, declaration, filing,
approval, authorization or order of, notice to, or registration with, any
Governmental Authority or any third party is required in connection with the
execution and delivery by the Purchasers of this Agreement or the consummation
of any transactions contemplated hereby, except for (a) such filings with the
SEC as are required to disclose the purchase of the Shares by the Purchasers and
to amend or supplement any of the Purchasers' existing filings with the SEC on
Form 4, Schedule 13D or Schedule 13G, as the case may be, (b) such consents,
declarations, filings, approvals, authorizations, orders, notices or
registrations the absence of which would not, either individually or in the
aggregate, have a material adverse effect on the transactions contemplated by
this Agreement.
4.4 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by the
Purchasers or on the Purchasers' behalf.
4.5 Information and Experience. By reason of the Purchasers' business or
financial experience, the Purchasers are capable of evaluating the merits and
risks of the purchase of the Shares and have the ability to protect their own
interests in this transaction. The Purchasers are sophisticated buyers with
respect to the purchase of securities such as the Shares and have independently
and without reliance upon the Sellers, and based upon such information as the
Purchasers deem appropriate, made their own analysis and decision to purchase
the Shares from the Sellers.
ARTICLE V
CERTAIN COVENANTS OF THE PURCHASERS AND SELLERS
5.1 Excluded Information. Each party hereto acknowledges and agrees that
(a) it has been informed that the other party hereto or its agents may currently
possess, and later may come into possession of, material non-public information
not known to the Sellers or the Purchasers, as applicable, and that may be
material to a decision by the Sellers to sell the Shares or by the Purchasers to
purchase the Shares, and such party has determined to sell the Shares or
purchase the Shares, as applicable, notwithstanding its lack of knowledge of
such information; (b) agree that the Purchasers and the Sellers, as applicable,
shall not have any liability whatsoever to the other party hereto with respect
to the nondisclosure of such information in connection with the sale of the
Shares by the Sellers or the purchase of the Shares by the Purchasers; and (c)
irrevocably waives and releases all claims which it might otherwise have with
respect to the nondisclosure of such information in connection with the sale of
the Shares by the Sellers and the purchase of the Shares by the Purchasers,
whether before or after the date hereof.
5.2 Reasonable Efforts. Each party hereto agrees to use commercially
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other party or parties in
doing, all things necessary, proper or advisable, consistent with applicable
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 27 of 31 Pages
---------------------- ----------------------
laws, to consummate and make effective the transactions contemplated by this
Agreement. In addition, from time to time after the date hereof, each of the
parties hereto agrees to execute and deliver, or cause to be executed and
delivered, such documents as the other party or parties may reasonably request
in order to consummate more effectively the transactions contemplated by this
Agreement.
ARTICLE VI
GENERAL PROVISIONS
6.1 Expenses. Whether or not the transactions contemplated hereby shall be
consummated, the Sellers, on the one hand, and the Purchasers, on the other
hand, shall each be responsible for the fees, expenses and disbursements of
their respective agents, representatives, accountants and counsel incurred in
connection with the negotiation of this Agreement and the transactions
contemplated in connection herewith, it being specifically agreed that neither
the Purchasers nor the Sellers shall charge to the other party the expenses of
such party in connection with negotiation of this Agreement and the transactions
contemplated herein.
6.2 Construction; Entire Agreement; Amendment. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
irrespective of its conflicts of law principles. This Agreement, together with
schedules attached hereto, and all other documents and instruments executed and
delivered in connection herewith, contains the entire agreement between the
Sellers and the Purchasers with respect to the transactions contemplated hereby
and supersedes all prior arrangements and understandings among them with respect
thereto. This Agreement may not be amended, modified or changed except by an
instrument in writing signed by the Sellers and the Purchasers.
6.3 Notices. (a) All notices, requests, demands, and other communications
required to or permitted to be given under this Agreement shall be in writing
and shall be delivered personally or by overnight courier (with confirmation of
receipt) or by certified or registered mail (postage prepaid and return receipt
requested). Any such notice shall be deemed given when so delivered personally
or if mailed or sent by overnight courier, three days after the date of deposit
in the United States mail or one day after pickup by overnight courier, if
addressed as follows:
if to the Sellers, to:
Ramius Capital Group, L.L.C.
666 Third Avenue, 26th Floor
New York, New York 10017
Attn: General Counsel
Telephone: (212) 201-4841
if to the Purchasers, to:
Barington Capital Group, L.P.
888 Seventh Avenue, 17th Floor
New York, New York 10019
Attn: General Counsel
Telephone: (212) 974-5700
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CUSIP No. 26779R104 13D Page 28 of 31 Pages
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(b) Each party agrees to make a good faith effort to ensure that such
party will accept or receive notices that are given in accordance with this
Section 7.3, and that any person to be given notice actually receives such
notice. A party may change or supplement the addresses given above, or designate
additional addresses for purposes of this Section 7.3, by giving the other party
written notice of the new address in the manner set forth above.
6.4 Severability. If any provision of this Agreement or the application
thereof to any person, entity or circumstance is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof, or the application of such provision to persons, entities or
circumstances other than those as to which it has been held invalid, void or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
6.5 Exercise of Rights; Specific Performance. No failure on the part of a
party to exercise, and no delay in exercising, any right or remedy under this
Agreement shall operate as a waiver hereof by such party, nor shall any single
or partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right or remedy. Each of
the parties hereto acknowledges and agrees that irreparable damage would occur
in the event any provision of this Agreement were 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.
6.6 Successors and Assigns; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
representatives, successors and assigns. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned or delegated,
directly or indirectly, by any party hereto without the prior written consent of
the other parties.
6.7 Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BARINGTON CAPITAL GROUP, L.P.
By: LNA Capital Corp., its general
partner
By: /s/ James A. Mitarotonda
------------------------------------
Name: James A. Mitarotonda
Title: President and CEO
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CUSIP No. 26779R104 13D Page 29 of 31 Pages
---------------------- ----------------------
BARINGTON COMPANIES OFFSHORE FUND, LTD.
By: /s/ James A. Mitarotonda
------------------------------------
Name: James A. Mitarotonda
Title: President
STARBOARD VALUE & OPPORTUNITY FUND, LLC
By: Admiral Advisors, LLC, its
managing member
By:
-----------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
RAMIUS HALIFAX PARTNERS, L.P.
By:
-----------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
RAMIUS CAPITAL GROUP, L.L.C.
By:
-----------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
RAMIUS SECURITIES, LLC
By:
-----------------------------------
Name: Jeffrey M. Solomon
Title: Authorized Signatory
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 30 of 31 Pages
---------------------- ----------------------
SCHEDULE A
Share Ownership
---------------
Name of Entity Number of Shares Owned
-------------- ----------------------
Ramius Halifax Partners, L.P. 313,695
Ramius Capital Group, L.L.C. 313,695
Ramius Securities, L.L.C. 150,742
Starboard Value & Opportunity Fund, LLC 728,898
-------
TOTAL: 1,507,030
---------------------- ----------------------
CUSIP No. 26779R104 13D Page 31 of 31 Pages
---------------------- ----------------------
SCHEDULE B
Share Transfers At Closing
--------------------------
NAME OF SELLING ENTITY NAME OF PURCHASING ENTITY NUMBER OF SHARES
Ramius Halifax Partners Barington Capital Group 313,695
Ramius Capital Group Barington Capital Group 313,695
Ramius Securities Barington Capital Group 86,305
Barington Companies 64,437
Offshore Fund
Starboard Value & Opportunity Fund Barington Companies 728,898
Offshore Fund
TOTAL: 1,507,030