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. 7)(1)
BAIRNCO CORPORATION
-------------------
(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
----------------------------
(Title of Class of Securities)
057097107
---------
(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)
December 29, 2006
-----------------
(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 25 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. 057097107 13D Page 2 of 25 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
STEEL PARTNERS II, L.P.
--------------------------------------------------------------------------------
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 1,110,200
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,110,200
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,110,200
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 057097107 13D Page 3 of 25 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
STEEL PARTNERS, 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 1,110,200
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,110,200
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,110,200
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 057097107 13D Page 4 of 25 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WARREN G. LICHTENSTEIN
--------------------------------------------------------------------------------
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 1,110,200
OWNED BY -----------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH - 0 -
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
1,110,200
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
1,110,200
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.2%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 057097107 13D Page 5 of 25 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
BZ ACQUISITION CORP.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
--------------------------------------------------------------------------------
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*
CO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 057097107 13D Page 6 of 25 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
HUGH F. CULVERHOUSE
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
--------------------------------------------------------------------------------
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 - 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*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 057097107 13D Page 7 of 25 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
JOHN J. QUICKE
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
--------------------------------------------------------------------------------
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 - 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*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 057097107 13D Page 8 of 25 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
ANTHONY BERGAMO
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
--------------------------------------------------------------------------------
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 - 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*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 057097107 13D Page 9 of 25 Pages
---------------------- ----------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
HOWARD M. LEITNER
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
--------------------------------------------------------------------------------
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 - 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*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
---------------------- ----------------------
CUSIP No. 057097107 13D Page 10 of 25 Pages
---------------------- ----------------------
The following constitutes Amendment No. 7 ("Amendment No. 7") to
the Schedule 13D filed by the undersigned. This Amendment No. 7 amends the
Schedule 13D as specifically set forth.
Item 2 is hereby amended and restated to read as follows:
(a) This statement is filed by Steel Partners II, L.P., a Delaware
limited partnership ("Steel Partners II"), Steel Partners, L.L.C., a Delaware
limited liability company ("Partners LLC"), BZ Acquisition Corp., a Delaware
corporation ("BZA"), Warren G. Lichtenstein, Hugh F. Culverhouse, John J.
Quicke, Anthony Bergamo and Howard M. Leitner. 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 and Solicitation
Agreement as further described in Item 6. Accordingly, the Reporting Persons are
hereby filing a joint Schedule 13D.
Partners LLC is the general partner of Steel Partners II. The sole
executive officer and managing member of Partners LLC is Warren G. Lichtenstein,
who is Chairman of the Board, Chief Executive Officer and Secretary. By virtue
of his positions with Partners LLC and Steel Partners II, Mr. Lichtenstein has
the power to vote and dispose of the Issuer's Shares owned by Steel Partners II.
BZA is a wholly owned subsidiary of Steel Partners II. Mr.
Lichtenstein is the sole executive officer and director of BZA. On June 22,
2006, BZA commenced a cash tender offer to purchase all of the outstanding
Shares of the Issuer for $12.00 per Share (the "Tender Offer").
(b) The principal business address of Steel Partners II, Partners
LLC, BZA, Mr. Lichtenstein and Mr. Quicke is 590 Madison Avenue, 32nd Floor, New
York, New York 10022.
The principal business address of Mr. Culverhouse is SBS Tower,
Suite PH 1-C, 2601 South Bayshore Drive, Miami, Florida 33133.
The principal business address of Mr. Bergamo is c/o MB Real Estate,
335 Madison Avenue, 14th Floor, New York, New York 10017.
The principal business address of Mr. Leitner is 78335 Griffin
Drive, Palm Desert, California 92211.
(c) The principal business of Steel Partners II is investing in the
securities of small cap companies. The principal business of Partners LLC is
acting as the general partner of Steel Partners II. BZA has no current
operations other than those incident to the Tender Offer and the Solicitation
(as defined herein). The principal occupation of Mr. Lichtenstein is investing
in the securities of small cap companies.
---------------------- ----------------------
CUSIP No. 057097107 13D Page 11 of 25 Pages
---------------------- ----------------------
The principal occupation of Mr. Culverhouse is serving as the
principal of Culverhouse Limited Partnership which invests in real estate,
securities and hedge funds.
The principal occupation of Mr. Quicke is serving as a Vice
President of Steel Partners, Ltd., a management and advisory company that
provides management services to Steel Partners II and its affiliates.
The principal occupation of Mr. Bergamo is serving in a variety of
capacities with Milstein Hotel Group, a hotel operator, most recently as
Managing Director.
Mr. Leitner is presently retired from active employment. Prior to
his retirement, he served as Senior Vice President, Finance of Sequa
Corporation, a diversified industrial company.
(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. Lichtenstein, Culverhouse, Quicke, Bergamo and Leitner
are citizens of the United States of America.
Item 4 is hereby amended to add the following:
On December 29, 2006, Steel Partners II filed with the Securities
and Exchange Commission ("SEC") a preliminary consent solicitation statement in
connection with the anticipated solicitation of written consents (the
"Solicitation") from the stockholders of the Issuer to take certain actions
without a stockholders' meeting, as authorized by the Delaware General
Corporation Law (the "DGCL"). Steel Partners II may deliver to the Issuer
written consents to commence the consent process under the applicable provisions
of the DGCL at such time Steel Partners II files definitive solicitation
materials with the SEC. The first proposal seeks to remove the current members
of the Board of Directors of the Issuer (the "Board"). The second proposal seeks
to amend the Issuer's Amended and Restated Bylaws (the "Bylaws") to fix the
number of directors serving on the Board at five (5). The third proposal seeks
to amend the Bylaws to provide that any vacancies on the Board resulting from
the removal of directors by the stockholders may only be filled by the
stockholders. The fourth proposal seeks to fill the newly created vacancies on
the Board with Warren G. Lichtenstein, Hugh F. Culverhouse, John J. Quicke,
Anthony Bergamo and Howard M. Leitner (the "Steel Nominees").
---------------------- ----------------------
CUSIP No. 057097107 13D Page 12 of 25 Pages
---------------------- ----------------------
Steel Partners II intends to seek approval of these proposals
because it believes the current members of the Board are not acting, and will
not act, in the best interest of the stockholders with respect to the Tender
Offer. Despite the fact that the $12.00 per Share cash price proposed to be paid
in the Tender Offer represents a premium of 21% to the last reported sales price
per Share on June 15, 2006, the day Steel Partners II informed the Issuer of its
proposal to acquire all the outstanding Shares, the Board rejected the Tender
Offer as inadequate without making any effort to seriously discuss the Tender
Offer with Steel Partners II. Since that time, despite having hired an
investment bank to serve as its financial adviser, the Board has not identified
any other strategic alternatives. In addition, the Board has refused to take the
steps necessary to permit Steel Partners II to consummate the Tender Offer and
allow the stockholders to receive the consideration to be paid pursuant to the
Tender Offer, such as opting out of Section 203 of the DGCL, and has even
created roadblocks to Steel Partners II's ability to consummate the Tender
Offer, such as adopting a "poison pill" rights plan.
If the Solicitation is successful and the Steel Nominees are
elected, they will, subject to their fiduciary duties as directors, remove the
obstacles to the consummation of the Tender Offer by redeeming the Issuer's
"poison pill" rights plan and opting out of Section 203 of the DGCL. This would
allow the Issuer's stockholders to have the ability to decide for themselves
whether they want to accept the Tender Offer, the proposed merger of the Issuer
and BZA or other affiliate of Steel Partners II following the Tender Offer, or
any other third-party acquisition proposal. Due to Mr. Lichtenstein's and Mr.
Quicke's affiliation with BZA and Steel Partners II, they may be deemed to have
an interest in any transaction between the Issuer and BZA or other affiliate of
Steel Partners II. Accordingly, if the Steel Nominees are elected, Messrs.
Lichtenstein and Quicke would abstain from any vote of the directors to approve
such transaction.
STEEL PARTNERS II STRONGLY ADVISES ALL STOCKHOLDERS OF THE ISSUER TO READ THE
CONSENT SOLICITATION STATEMENT BECAUSE IT CONTAINS IMPORTANT INFORMATION. SUCH
CONSENT SOLICITATION STATEMENT IS AVAILABLE AT NO CHARGE ON THE SEC'S WEB SITE
AT HTTP://WWW.SEC.GOV. IN ADDITION, THE PARTICIPANTS IN THE SOLICITATION WILL
PROVIDE COPIES OF THE DEFINITIVE CONSENT SOLICITATION STATEMENT WITHOUT CHARGE
UPON REQUEST. REQUESTS FOR COPIES SHOULD BE DIRECTED TO THE PARTICIPANTS'
CONSENT SOLICITOR, MACKENZIE PARTNERS, INC., TOLL-FREE AT (800) 322-2885 OR
COLLECT AT (212) 929-5500 OR VIA EMAIL AT BAIRNCO@MACKENZIEPARTNERS.COM.
THE PARTICIPANTS IN THE CONSENT SOLICITATION ARE ANTICIPATED TO BE THE REPORTING
PERSONS. STOCKHOLDERS OF THE ISSUER MAY OBTAIN INFORMATION REGARDING THE
PARTICIPANTS' DIRECT OR INDIRECT INTERESTS, BY SECURITY HOLDINGS OR OTHERWISE,
IN THE ISSUER BY REFERRING TO ITEM 5 OF THIS SCHEDULE 13D OR THE SCHEDULE 14A
FILED BY STEEL PARTNERS II WITH THE SEC TODAY.
---------------------- ----------------------
CUSIP No. 057097107 13D Page 13 of 25 Pages
---------------------- ----------------------
Item 5(a) is hereby amended and restated to read as follows:
(a) The aggregate percentage of Shares reported owned by each person
named herein is based upon 7,291,853 Shares outstanding as reported in the
Issuer's Quarterly Report on Form 10-Q for the quarter ended September 30, 2006,
as filed with the Securities and Exchange Commission on November 13, 2006.
As of the close of business on December 28, 2006, Steel Partners II
beneficially owned 1,110,200 Shares, constituting approximately 15.2% of the
Shares outstanding. As the general partner of Steel Partners II, Partners LLC
may be deemed to beneficially own the 1,110,200 Shares owned by Steel Partners
II, constituting approximately 15.2% of the Shares outstanding. As the sole
executive officer and managing member of Partners LLC, which in turn is the
general partner of Steel Partners II, Mr. Lichtenstein may be deemed to
beneficially own the 1,110,200 Shares owned by Steel Partners II, constituting
approximately 15.2% of the Shares outstanding. Mr. Lichtenstein has sole voting
and dispositive power with respect to the 1,110,200 Shares owned by Steel
Partners II by virtue of his authority to vote and dispose of such Shares.
Currently, none of BZA or Messrs. Culverhouse, Quicke, Bergamo or
Leitner beneficially owns any Shares. The filing of this Statement by the
Reporting Persons, and the inclusion of information herein, shall not be
considered an admission that any of such persons, for the purpose of Section
13(d) of the Exchange Act, or otherwise, are the beneficial owners of any Shares
in which such persons do not have a pecuniary interest. Furthermore, BZA and
Messrs. Culverhouse, Quicke, Bergamo and Leitner specifically disclaim
beneficial ownership of the Shares owned by Steel Partners II.
Item 6 is hereby amended to add the following:
On December 29, 2006, the Reporting Persons entered into a Joint
Filing and Solicitation Agreement in which, among other things, (i) 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, (ii) the parties agreed to
solicit written consents or proxies to elect the Steel Nominees or any other
person designated by the Reporting Persons as directors of the Issuer and to
take all other action necessary or advisable to achieve the foregoing, and (iii)
Steel Partners II agreed to bear all expenses incurred in connection with the
Solicitation, including approved expenses incurred by any of the parties in
connection with the Solicitation or any related transactions, subject to certain
limitations. A copy of the Joint Filing and Solicitation Agreement is attached
as an exhibit hereto and is incorporated herein by reference.
Pursuant to letter agreements, Steel Partners II has agreed to
indemnify each of the Steel Nominees against claims arising from the
Solicitation. The form of letter agreement is attached as an exhibit hereto and
is incorporated herein by reference.
---------------------- ----------------------
CUSIP No. 057097107 13D Page 14 of 25 Pages
---------------------- ----------------------
Item 7 is hereby amended to add the following exhibits:
7. Joint Filing and Solicitation Agreement by and among Steel
Partners II, L.P., Steel Partners, L.L.C., BZ Acquisition
Corp., Warren G. Lichtenstein, Hugh F. Culverhouse, John J.
Quicke, Anthony Bergamo and Howard M. Leitner dated as of
December 29, 2006.
8. Form of Indemnification Letter Agreement.
9. Powers of Attorney of BZ Acquisition Corp.
---------------------- ----------------------
CUSIP No. 057097107 13D Page 15 of 25 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: December 29, 2006 STEEL PARTNERS II, L.P.
By: Steel Partners, L.L.C.
General Partner
By: /s/ Lauren Isenman
---------------------------------
Lauren Isenman
as Attorney in Fact for Warren G. Lichtenstein,
Managing Member
STEEL PARTNERS, L.L.C.
By: /s/ Lauren Isenman
--------------------------------
Lauren Isenman
as Attorney in Fact for Warren G. Lichtenstein,
Managing Member
BZ ACQUISITION CORP.
By: /s/ Lauren Isenman
--------------------------------
Lauren Isenman
as Attorney in Fact for Warren G. Lichtenstein,
President
/s/ Lauren Isenman
------------------------------------
LAUREN ISENMAN
as Attorney in Fact for Warren G. Lichtenstein,
Individually
---------------------- ----------------------
CUSIP No. 057097107 13D Page 16 of 25 Pages
---------------------- ----------------------
/s/ Hugh F. Culverhouse
------------------------------------
HUGH F. CULVERHOUSE
/s/ John J. Quicke
------------------------------------
JOHN J. QUICKE
/s/ Anthony Bergamo
------------------------------------
ANTHONY BERGAMO
/s/ Howard M. Leitner
------------------------------------
HOWARD M. LEITNER
---------------------- ----------------------
CUSIP No. 057097107 13D Page 17 of 25 Pages
---------------------- ----------------------
EXHIBIT INDEX
Exhibit Page
------- ----
1. Joint Filing Agreement by and between Steel Partners
II, L.P. and Warren G. Lichtenstein, dated as of
February 14, 2001 (previously filed). --
2. Joint Filing Agreement by and among Steel Partners II,
L.P., Steel Partners, L.L.C. and Warren G.
Lichtenstein, dated as of September 8, 2004
(previously filed). --
3. Powers of Attorney of Steel Partners II, L.P., Steel
Partners, L.L.C. and Warren G. Lichtenstein
(previously filed). --
4. Press Release, dated June 15, 2006 (previously filed). --
5. Letter, dated June 15, 2006, to Luke E. Fichthorn,
III, Chairman and Chief Executive Officer of the
Issuer (previously filed). --
6. Powers of Attorney of Steel Partners II, L.P., Steel
Partners, L.L.C. and Warren G. Lichtenstein
(previously filed). --
7. Joint Filing and Solicitation Agreement by and among
Steel Partners II, L.P., Steel Partners, L.L.C., BZ
Acquisition Corp., Warren G. Lichtenstein, Hugh F.
Culverhouse, John J. Quicke, Anthony Bergamo and
Howard M. Leitner dated as of December 29, 2006. 18 to 20
8. Form of Indemnification Letter Agreement. 21 to 22
9. Powers of Attorney of BZ Acquisition Corp. 23 to 25
---------------------- ----------------------
CUSIP No. 057097107 13D Page 18 of 25 Pages
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JOINT FILING AND SOLICITATION AGREEMENT
WHEREAS, certain of the undersigned are stockholders, direct or
beneficial, of Bairnco Corporation, a Delaware corporation ("Bairnco");
WHEREAS, Steel Partners II, L.P., a Delaware limited partnership
("Steel"), Steel Partners, L.L.C., a Delaware limited liability company, BZ
Acquisition Corp., a Delaware corporation, Warren G. Lichtenstein, Hugh F.
Culverhouse, John J. Quicke, Anthony Bergamo and Howard M. Leitner wish to
form a group for the purpose of soliciting written consents or proxies to
elect Warren G. Lichtenstein, Hugh F. Culverhouse, John J. Quicke, Anthony
Bergamo and Howard M. Leitner or any other person designated by the
undersigned as directors of Bairnco and taking all other action necessary or
advisable to achieve the foregoing.
NOW, IT IS AGREED, this 29th day of December 2006 by the parties hereto:
1. In accordance with Rule 13d-1(k)(1)(iii) under the Securities
Exchange Act of 1934, as amended, each of the undersigned (collectively, the
"Group") agrees to the joint filing on behalf of each of them of statements on
Schedule 13D with respect to the securities of Bairnco. Each member of the Group
shall be responsible for the accuracy and completeness of his/its own disclosure
therein, and is not responsible for the accuracy and completeness of the
information concerning the other members, unless such member knows or has reason
to know that such information is inaccurate.
2. So long as this agreement is in effect, each of the undersigned
shall provide written notice to Olshan Grundman Frome Rosenzweig & Wolosky LLP
("Olshan") of (i) any of their purchases or sales of securities of Bairnco; or
(ii) any securities of Bairnco over which they acquire or dispose of beneficial
ownership. Notice shall be given no later than 24 hours after each such
transaction.
3. Each of the undersigned agrees to solicit written consents or
proxies to elect Warren G. Lichtenstein, Hugh F. Culverhouse, John J. Quicke,
Anthony Bergamo and Howard M. Leitner or any other person designated by the
Group as directors of Bairnco and to take all other action necessary or
advisable to achieve the foregoing (the "Solicitation").
4. Steel agrees to bear all expenses incurred in connection with the
Group's activities, including expenses incurred by any of the parties in the
Solicitation. Notwithstanding the foregoing, Steel shall not be required to
reimburse any party for (i) out-of-pocket expenses incurred by a party in the
aggregate in excess of $250 without Steel's prior written approval; (ii) the
value of the time of any party; (iii) legal fees incurred without Steel's prior
written approval; or (iv) the costs of any counsel, other than Olshan, employed
in connection with any pending or threatened litigation without Steel's prior
written approval.
5. The relationship of the parties hereto shall be limited to
carrying on the business of the Group in accordance with the terms of this
Agreement. Such relationship shall be construed and deemed to be for the sole
and limited purpose of carrying on such business as described herein. Nothing
herein shall be construed to authorize any party to act as an agent for any
other party, or to create a joint venture or partnership, or to constitute an
indemnification. Nothing herein shall restrict any party's right to purchase or
sell securities of Bairnco, as he/it deems appropriate, in his/its sole
discretion, provided that all such sales are made in compliance with all
applicable securities laws.
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CUSIP No. 057097107 13D Page 19 of 25 Pages
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6. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which, taken together, shall constitute
one and the same instrument, which may be sufficiently evidenced by one
counterpart.
7. In the event of any dispute arising out of the provisions of this
Agreement, the parties hereto consent and submit to the exclusive jurisdiction
of the Federal and State Courts in the State of New York.
8. Any party hereto may terminate his obligations under this
Agreement at any time on 24 hours' written notice to all other parties, with a
copy by fax to Steven Wolosky at Olshan, Fax No. (212) 451-2222.
9. Each party acknowledges that Olshan shall act as counsel for both
the Group and Steel.
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CUSIP No. 057097107 13D Page 20 of 25 Pages
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
STEEL PARTNERS II, L.P.
By: Steel Partners, L.L.C.
General Partner
By: /s/ Warren G. Lichtenstein
--------------------------------
Name: Warren G. Lichtenstein
Title: Managing Member
STEEL PARTNERS, L.L.C.
By: /s/ Warren G. Lichtenstein
--------------------------------
Name: Warren G. Lichtenstein
Title: Managing Member
BZ ACQUISITION CORP.
By: /s/ Warren G. Lichtenstein
--------------------------------
Name: Warren G. Lichtenstein
Title: President
/s/ Warren G. Lichtenstein
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WARREN G. LICHTENSTEIN
/s/ Hugh F. Culverhouse
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HUGH F. CULVERHOUSE
/s/ John J. Quicke
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JOHN J. QUICKE
/s/ Anthony Bergamo
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ANTHONY BERGAMO
/s/ Howard M. Leitner
------------------------------------
HOWARD M. LEITNER
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CUSIP No. 057097107 13D Page 21 of 25 Pages
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STEEL PARTNERS II, L.P.
590 MADISON AVENUE, 32ND FLOOR
NEW YORK, NEW YORK 10022
December 29, 2006
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Re: BAIRNCO CORPORATION
Dear Mr. _________:
Thank you for agreeing to serve as a nominee for election to the Board of
Directors of Bairnco Corporation ("Bairnco") in connection with the consent
solicitation or proxy solicitation that Steel Partners II, L.P. ("Steel") and
its affiliates are considering undertaking to elect directors (the "Steel
Solicitation"). Your outstanding qualifications, we believe, will prove a
valuable asset to Bairnco and all of its stockholders. This letter will set
forth the terms of our agreement.
Steel agrees to indemnify and hold you harmless against any and all claims
of any nature, whenever brought, arising from the Steel Solicitation and any
related transactions, irrespective of the outcome; PROVIDED, however, that you
will not be entitled to indemnification for claims arising from your own
criminal actions, fraud, negligence, bad faith or willful misconduct; PROVIDED
FURTHER, that this indemnification agreement and all of Steel's obligations
hereunder shall terminate upon your becoming a director of Bairnco. This
indemnification will include any and all (each, a "Loss") losses, liabilities,
damages, demands, claims, suits, actions, judgments, or causes of action,
assessments, costs and expenses, including, without limitation, interest,
penalties, reasonable attorneys' fees, and any and all reasonable costs and
expenses incurred in investigating, preparing or defending against any
litigation, commenced or threatened, any civil, criminal, administrative or
arbitration action, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation asserted against, resulting, imposed upon,
or incurred or suffered by you, directly or indirectly, as a result of or
arising from the Steel Solicitation and any related transactions.
In the event of a claim against you pursuant to the prior paragraph or the
occurrence of a Loss, you shall give Steel written notice of such claim or Loss.
Upon receipt of such written notice, Steel will provide you with counsel to
represent you. Such counsel shall be reasonably acceptable to you. In addition,
you will be reimbursed promptly for all Losses suffered by you and as incurred
as provided herein. Steel may not enter into any settlement of loss or claim
without your consent unless such settlement includes a release of you from any
and all liability in respect of such claim. Steel will not be responsible for
fees, costs or expenses of separate counsel retained by you. You may not enter
into any settlement of loss or claim without the written consent of Steel, which
consent will not be unreasonably withheld.
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CUSIP No. 057097107 13D Page 22 of 25 Pages
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If you agree to the foregoing terms, please sign below to indicate your
acceptance.
Very truly yours,
STEEL PARTNERS II, L.P.
By: Steel Partners, L.L.C.
General Partner
By:
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Warren G. Lichtenstein
Managing Member
ACCEPTED AND AGREED:
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CUSIP No. 057097107 13D Page 23 of 25 Pages
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POWER OF ATTORNEY
Know all by these presents, that each of the undersigned hereby
constitutes and appoints LAUREN ISENMAN signing singly, the undersigned's true
and lawful attorney-in-fact to:
1. execute for and on behalf of the undersigned all documents relating to
the business of BZ Acquisition Corp. including, but not limited to, all filings
with the Securities and Exchange Commission, any stock exchange and any other
regulatory, administrative or similar authority, and all memoranda,
correspondence, communications or the like, except that such attorney-in-fact
shall have no power to execute any document that has the effect of creating a
financial commitment or financial obligation of BZ Acquisition Corp. or its
affiliates.
2. do and perform any and all acts for and on behalf of the undersigned
that may be necessary or desirable to complete and execute any such document,
complete and execute any amendment or amendments thereto, and timely file such
document with the appropriate authority.
3. take any other action of any type whatsoever in connection with the
foregoing which, in the opinion of such attorney-in-fact, may be of benefit to,
in the best interest of, or legally required by, the undersigned, it being
understood that the documents executed by such attorney-in-fact on behalf of the
undersigned pursuant to this Power of Attorney shall be in such form and shall
contain such terms and conditions as such attorney-in-fact may approve in such
attorney-in-fact's discretion.
The undersigned hereby grants to each such attorney-in-fact full power and
authority to do and perform any and every act and thing whatsoever requisite,
necessary, or proper to be done in the exercise of any of the rights and powers
herein granted, as fully to all intents and purposes as the undersigned might or
could do if personally present, with full power of substitution or revocation,
hereby ratifying and confirming all that such attorney-in-fact, or such
attorney-in-fact's substitute or substitutes, shall lawfully do or cause to be
done by virtue of this Power of Attorney and the rights and powers herein
granted. The undersigned acknowledges that the foregoing attorney-in-fact, in
serving in such capacity at the request of the undersigned, is not assuming any
of the undersigned's responsibilities to comply with any rules or regulations
including federal securities laws.
This Power of Attorney shall remain in full force and effect until
December 31, 2007 unless earlier revoked by the undersigned in a signed writing
delivered to the foregoing attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to
be executed as of this 29th day of December, 2006.
BZ ACQUISITION CORP.
By: /s/ Warren G. Lichtenstein
-------------------------
Warren G. Lichtenstein
President
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CUSIP No. 057097107 13D Page 24 of 25 Pages
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POWER OF ATTORNEY
Know all by these presents, that each of the undersigned hereby
constitutes and appoints JACK L. HOWARD signing singly, the undersigned's true
and lawful attorney-in-fact to:
1. execute for and on behalf of the undersigned all documents relating to
the business of BZ Acquisition Corp. including, but not limited to, all filings
with the Securities and Exchange Commission, any stock exchange and any other
regulatory, administrative or similar authority, and all memoranda,
correspondence, communications or the like, except that such attorney-in-fact
shall have no power to execute any document that has the effect of creating a
financial commitment or financial obligation of BZ Acquisition Corp. or its
affiliates.
2. do and perform any and all acts for and on behalf of the undersigned
that may be necessary or desirable to complete and execute any such document,
complete and execute any amendment or amendments thereto, and timely file such
document with the appropriate authority.
3. take any other action of any type whatsoever in connection with the
foregoing which, in the opinion of such attorney-in-fact, may be of benefit to,
in the best interest of, or legally required by, the undersigned, it being
understood that the documents executed by such attorney-in-fact on behalf of the
undersigned pursuant to this Power of Attorney shall be in such form and shall
contain such terms and conditions as such attorney-in-fact may approve in such
attorney-in-fact's discretion.
The undersigned hereby grants to each such attorney-in-fact full power and
authority to do and perform any and every act and thing whatsoever requisite,
necessary, or proper to be done in the exercise of any of the rights and powers
herein granted, as fully to all intents and purposes as the undersigned might or
could do if personally present, with full power of substitution or revocation,
hereby ratifying and confirming all that such attorney-in-fact, or such
attorney-in-fact's substitute or substitutes, shall lawfully do or cause to be
done by virtue of this Power of Attorney and the rights and powers herein
granted. The undersigned acknowledges that the foregoing attorney-in-fact, in
serving in such capacity at the request of the undersigned, is not assuming any
of the undersigned's responsibilities to comply with any rules or regulations
including federal securities laws.
This Power of Attorney shall remain in full force and effect until
December 31, 2007 unless earlier revoked by the undersigned in a signed writing
delivered to the foregoing attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to
be executed as of this 29th day of December, 2006.
BZ ACQUISITION CORP.
By: /s/ Warren G. Lichtenstein
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Warren G. Lichtenstein
President
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CUSIP No. 057097107 13D Page 25 of 25 Pages
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POWER OF ATTORNEY
Know all by these presents, that each of the undersigned hereby
constitutes and appoints STEVEN WOLOSKY signing singly, the undersigned's true
and lawful attorney-in-fact to:
1. execute for and on behalf of the undersigned all documents relating to
the business of BZ Acquisition Corp. including, but not limited to, all filings
with the Securities and Exchange Commission, any stock exchange and any other
regulatory, administrative or similar authority, and all memoranda,
correspondence, communications or the like, except that such attorney-in-fact
shall have no power to execute any document that has the effect of creating a
financial commitment or financial obligation of BZ Acquisition Corp. or its
affiliates.
2. do and perform any and all acts for and on behalf of the undersigned
that may be necessary or desirable to complete and execute any such document,
complete and execute any amendment or amendments thereto, and timely file such
document with the appropriate authority.
3. take any other action of any type whatsoever in connection with the
foregoing which, in the opinion of such attorney-in-fact, may be of benefit to,
in the best interest of, or legally required by, the undersigned, it being
understood that the documents executed by such attorney-in-fact on behalf of the
undersigned pursuant to this Power of Attorney shall be in such form and shall
contain such terms and conditions as such attorney-in-fact may approve in such
attorney-in-fact's discretion.
The undersigned hereby grants to each such attorney-in-fact full power and
authority to do and perform any and every act and thing whatsoever requisite,
necessary, or proper to be done in the exercise of any of the rights and powers
herein granted, as fully to all intents and purposes as the undersigned might or
could do if personally present, with full power of substitution or revocation,
hereby ratifying and confirming all that such attorney-in-fact, or such
attorney-in-fact's substitute or substitutes, shall lawfully do or cause to be
done by virtue of this Power of Attorney and the rights and powers herein
granted. The undersigned acknowledges that the foregoing attorney-in-fact, in
serving in such capacity at the request of the undersigned, is not assuming any
of the undersigned's responsibilities to comply with any rules or regulations
including federal securities laws.
This Power of Attorney shall remain in full force and effect until
December 31, 2007 unless earlier revoked by the undersigned in a signed writing
delivered to the foregoing attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to
be executed as of this 29th day of December, 2006.
BZ ACQUISITION CORP.
By: /s/ Warren G. Lichtenstein
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Warren G. Lichtenstein
President