0001162893-12-000007.txt : 20120724
0001162893-12-000007.hdr.sgml : 20120724
20120724093320
ACCESSION NUMBER: 0001162893-12-000007
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 3
FILED AS OF DATE: 20120724
DATE AS OF CHANGE: 20120724
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: STABOSZ TIMOTHY J
CENTRAL INDEX KEY: 0001162893
FILING VALUES:
FORM TYPE: SC 13D/A
MAIL ADDRESS:
STREET 1: 1307 MONROE STREET
CITY: LA PORTE
STATE: IN
ZIP: 46350
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: P&F INDUSTRIES INC
CENTRAL INDEX KEY: 0000075340
STANDARD INDUSTRIAL CLASSIFICATION: METALWORKING MACHINERY & EQUIPMENT [3540]
IRS NUMBER: 221657413
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-39826
FILM NUMBER: 12975723
BUSINESS ADDRESS:
STREET 1: 445 BROADHOLLOW ROAD
CITY: MELVILLE
STATE: NY
ZIP: 11747
BUSINESS PHONE: (631)694-9800
MAIL ADDRESS:
STREET 1: 445 BROADHOLLOW ROAD
CITY: MELVILLE
STATE: NY
ZIP: 11747
FORMER COMPANY:
FORMER CONFORMED NAME: PLASTICS & FIBERS INC
DATE OF NAME CHANGE: 19671225
SC 13D/A
1
pf13d15.txt
STABOSZ 13D AMENDMENT NUMBER 9
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(AMENDMENT NO. 9)
Under the Securities Exchange Act of 1934
P&F INDUSTRIES, INC.
-------------------------------------------------------------------------------
(Name of issuer)
COMMON STOCK
-------------------------------------------------------------------------------
(Title of class of securities)
692830508
--------------------------------------------------------
(CUSIP number)
TIMOTHY J. STABOSZ, 1307 MONROE STREET, LAPORTE, IN 46350 (219) 324-5087
-------------------------------------------------------------------------------
(Name, address and telephone number of person authorized to receive notices and
communications)
JULY 9, 2012
--------------------------------------------------------
(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 which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. [_]
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 ("Act") 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. 692830508
--------------------------------------------------------------------------------
1. Name of Reporting Person
TIMOTHY JOHN STABOSZ
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2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [_]
NOT APPLICABLE (b) [_]
--------------------------------------------------------------------------------
3. SEC Use Only
--------------------------------------------------------------------------------
4. Source of Funds (See Instructions) PF
--------------------------------------------------------------------------------
5. Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) [_]
--------------------------------------------------------------------------------
6. Citizenship or Place of Organization UNITED STATES
--------------------------------------------------------------------------------
Number of (7) Sole Voting Power 196,369
Shares ____________________________________________
Beneficially (8) Shared Voting Power 0
Owned by ____________________________________________
Each (9) Sole Dispositive Power 196,369
Reporting ____________________________________________
Person With (10) Shared Dispositive Power 0
--------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned 196,369
by each Reporting Person
--------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes [_]
Certain Shares
--------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11) 5.4%
--------------------------------------------------------------------------------
14. Type of Reporting Person (See Instructions) IN
--------------------------------------------------------------------------------
ITEM 3. Source and Amount of Funds or Other Consideration
Item 3 is hereby amended and restated to read as follows:
Personal funds in the aggregate amount of $427,500.11 have been used to
effect the purchases. No part of the purchase price represents borrowed funds.
ITEM 4. Purpose of Transaction
Item 4 is hereby amended to add the following:
With the filing of this Amendment #9, respondent reports a decrease in
his ownership position in the company's common stock to 5.4%, from the 7.1%
previously reported in Amendment #8, on May 16, 2012. The respondent's sales
primarily reflect his current view of the opportunity cost of owning P&F,
relative to a number of alternative investments he deems as more deeply
undervalued.
In addition, on or about June 15, 2012, the respondent approached the
company's board of directors, putting out "feelers" to see if the company
would be interested in acquiring some or all of his share position ("the
Stabosz block"), at a price of $5 per share. At the time of making the
proposal, the respondent was hopeful that it would be received by the board on
a largely unconditional basis, based upon the discount to book value the
purchase price represented, and the fact that the respondent believed, in good
faith, that such a purchase would be accretive to the company's other
stockholders.
On June 20th, the respondent received, via e-mail, a draft proposed
purchase agreement, from the company's general counsel (see Exhibit #1). In a
subsequent discussion with the company's outside counsel, the respondent was
informed that, among other things: 1) the board would only be interested in
purchasing the block on an "all or none" basis, at the $5 price, and 2) per
the draft proposal, there would be a condition requiring the respondent, and
his affiliates, to refrain from owning shares in the company for a period of 3
years subsequent (the "standstill" or "stay away" provision).
After reviewing the draft proposal for a few days, on June 25th, the
respondent e-mailed (see Exhibit #2) the company's outside counsel (and board
of directors), indicating his unwillingness to accept the terms, as specified in
the draft proposal. At that time, discussions with the company on a possible
acquisition of the Stabosz block were terminated.
The respondent emphasizes that if the company views its own common stock
as an attractive investment, the board should revisit the respondent's ongoing
request (as filed under Regulation 13D) that they conduct a "Dutch Tender," or
some other kind of tender offer...rather than create the unseemly impression
that the only shares they are willing to buy back are those of an outside
activist...and that they are only willing to buy them back, for the express
purpose of SILENCING said activist. As the respondent states in his Exhibit
#2 e-mail, he considers such a position to be immoral, if not despicable...as
well as solid evidence that the P&F board, collectively, continues to lack
self-respect and independence. Respondent believes that the board as a whole,
instead, continues to be primarily loyal to the personal, pecuniary, and power
needs of a CEO who has manifestly failed to create value in his 15+ year tenure.
Respondent may increase or decrease his ownership position in P&F's
common stock in the future, based upon respondent's trading, investing,
diversification, margin, arbitrage, or other needs and purposes.
ITEM 5. Interest in Securities of the Issuer
Item 5 is hereby amended and restated to read as follows:
At the close of business on July 23, 2012, respondent has sole voting and
dispositive power over 196,369 shares of P&F Industries, Inc.'s common stock.
According to the Company's latest Form 10-Q filing, as of May 11, 2012, there
were 3,616,562 common shares outstanding. Respondent is therefore deemed to
own 5.4% of the Company's common stock. Transactions effected by the
respondent since May 8, 2012, were performed in ordinary brokerage
transactions, and are indicated as follows:
05/23/12 sold 2500 shares at $4.48
05/30/12 sold 100 shares at $4.69
05/31/12 sold 2476 shares at $4.67
06/01/12 sold 268 shares at $4.59
06/04/12 sold 2579 shares at $4.299
06/11/12 sold 277 shares at $4.59
06/19/12 sold 1303 shares at $4.59
06/25/12 sold 10,952 shares at $5.005
06/26/12 sold 846 shares at $5.00
06/28/12 sold 7259 shares at $4.866
06/29/12 sold 500 shares at $5.10
07/03/12 sold 100 shares at $5.22
07/05/12 sold 2400 shares at $5.25
07/06/12 sold 840 shares at $5.25
07/09/12 sold 6660 shares at $5.526
07/10/12 sold 2352 shares at $5.65
07/11/12 sold 2500 shares at $5.73
07/12/12 sold 1632 shares at $5.73
07/13/12 sold 200 shares at $5.73
07/18/12 sold 11,502 shares at $5.574
07/19/12 sold 100 shares at $5.73
07/20/12 sold 3736 shares at $5.556
ITEM 7. Material to be Filed as Exhibits
Exhibit #1: P&F's proposal to purchase the Stabosz block at $5 per share,
received on June 20, 2012.
Exhibit #2: E-mail dated June 25, 2012 from Stabosz to P&F's outside counsel
(and board of directors), indicating his refusal to sign a buyback under terms
proposed by P&F's board that involve what Stabosz viewed as "buying his
silence."
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date 07/24/12
Signature Timothy J. Stabosz
Name/Title Timothy J. Stabosz, Private Investor
EX-1
2
tjspfin.txt
P&F DRAFT PROPOSAL TO PURCHASE STABOSZ'S P&F SHARES
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "Agreement") is made and entered into as of
June ___, 2012 by and among P&F Industries Inc., a Delaware corporation (the
"Company"), and Timothy J. Stabosz, an individual (the "Seller").
WHEREAS, Seller directly owns shares of the issued and outstanding common
stock, par value $1.00 per share, of the Company ("Company Shares"); and
WHEREAS, Seller desires to sell, and the Company desires to purchase, free
and clear of any and all Liens (as defined herein) an aggregate number of
Company Shares having an aggregate purchase price of $_____________ (the
"Purchase Price") as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the covenants,
agreements and representations and warranties contained herein, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE; ClOSINGS
Section 1.1 Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, Seller agrees to sell, convey, assign,
transfer and deliver to the Company, and the Company agrees to purchase from
Seller, [257,451] Company Shares (the "Purchased Shares"), free and clear of
any and all mortgages, pledges, encumbrances, liens, security interests,
options, charges, claims, deeds of trust, deeds to secure debt, title
retention agreements, rights of first refusal or offer, limitations on voting
rights, proxies, voting agreements, limitations on transfer or other
agreements or claims of any kind or nature whatsoever (collectively,
"Liens").
Section 1.2 Purchase Price. Upon the terms and subject to the conditions
of this Agreement, in consideration of the aforesaid sale, conveyance,
assignment, transfer and delivery to the Company of the Purchased Shares, the
Company shall pay to Seller a price per Purchased Share of [$5.00] (the
"Purchase Price"), for an aggregate price of $______________ in cash.
Section 1.3 Expenses. Except as expressly set forth in this Agreement,
all fees and expenses incurred by a party hereto in connection with the
matters contemplated by this Agreement shall be borne by the party incurring
such fee or expense, including without limitation the fees and expenses of
any investment banks, attorneys, accountants or other experts or advisors
retained by such party.
Section 1.4 Closing. The consummation of the transactions contemplated
by this Agreement (the "Closing") shall take place at 10:00 a.m., local
time, on June _____, 2012 at the offices of the Company or at such other
place, date or time as the parties may agree in writing (the " Closing
Date"); provided that the Company's obligations to consummate the
transactions contemplated by this Agreement shall be conditioned on (a) no
condition existing on the Closing Date which would prevent the Company from
drawing funds under the Loan and Security Agreement, dated as of October 25,
2010, among the Company, certain of the Company's subsidiaries, Capital One
Leverage Finance Corporation, as agent, and the financial institutions party
thereto, as amended or otherwise modified through the date hereof, and (b)
no injunction or other order, judgment, law, regulation, decree or ruling or
other legal restraint or prohibition having been issued, enacted or
promulgated by a court or other governmental authority of competent
jurisdiction that would have the effect of prohibiting or preventing the
consummation of the transactions contemplated hereunder.
Section 1.5 Closing Deliveries.
(a) At the Closing, in accordance with Section 1.2, the Company shall
deliver or cause to be delivered to Seller the following:
(i) The Purchase Price by wire transfer of immediately available funds to
such account as Seller has specified in writing prior to the Closing Date;
and
(b) At the Closing, Seller shall deliver or cause to be delivered to the
Company the following:
(i) certificates representing [5,000] of the Purchased Shares duly and
validly endorsed or accompanied by stock powers duly and validly executed in
blank and sufficient to convey to the Company good, valid and marketable
title in and to the Purchased Shares, free and clear of any and all Liens;
and
(ii) delivery of [250,451] of the Purchased Shares by transfer via the
Depository Trust Company Deposit Withdrawal Agent Commission System ("DWAC")
in accordance with the instructions included on the signature page hereto.
ARTICLE II
COVENANTS
Section 2.1 Standstill.
(a) During the period beginning on the date hereof and ending on the date
that is the third anniversary of the Closing Date (the "Standstill Period"),
except as specifically permitted by the terms of this Agreement, Seller shall
not, and shall cause his Affiliates (as defined in Section 5.3) not to,
acquire, offer or propose to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any (i) Voting Securities (as defined
in Section 5.3), or (ii) direct or indirect rights or options to acquire
(through purchase, exchange, conversion or otherwise) any Voting Securities.
(b) During the Standstill Period, except upon the express prior written
invitation of the Company, Seller shall not, and shall cause his Affiliates
not to, directly or indirectly, singly or as part of a partnership, limited
partnership, syndicate or other group (as those terms are used within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which meanings shall apply for all purposes of
this Agreement): (i) make, or in any way participate in, any "solicitation"
of "proxies" (as such terms are defined or used in Regulation 14A under the
Exchange Act) or exempt solicitation under Rule 14a-2(b)(1) or otherwise
with respect to any Voting Securities (including by the execution of actions
by written consent), become a "participant" or a "participant in a
solicitation" (as such terms are defined or used in Regulation 14A under the
Exchange Act) with respect to the Company or otherwise communicate with any
stockholder of the Company pursuant to Rule 14a-1(l)(2)(iv) under the
Exchange Act; (ii) initiate, propose or otherwise solicit, or participate in
the solicitation of, stockholders for the approval of one or more
stockholder proposals with respect to the Company, including any proposal
made pursuant to Rule 14a-8 under the Exchange Act, or encourage or induce
any other individual or entity to initiate any stockholder proposal relating
to the Company, or make any demand or request for any list of the holders of
Voting Securities; (iii) form, encourage the formation, join or in any way
participate in a "group" which owns or seeks or offers to acquire beneficial
ownership of Voting Securities or rights to acquire such securities or which
seeks or offers to acquire control of the Company or influence its policies;
(iv) solicit, seek or offer to effect, negotiate with or provide any
information to any party with respect to, make any statement or proposal,
whether written or oral, either alone or in concert with others, to the board
of directors of the Company, to any director or officer of the Company or to
any other stockholder of the Company with respect to, or otherwise formulate
any plan or proposal or make any public announcement, proposal, offer or
filing under the Exchange Act, any similar or successor statute or
otherwise, or take action to cause the Company to make any such filing, with
respect to: (A) any form of business combination, restructuring,
recapitalization, dissolution or similar transaction involving the Company or
any Affiliate thereof, including, without limitation, a merger, tender or
exchange offer, share repurchase or liquidation of the Company's assets, (B)
any acquisition or disposition of assets material to the Company, (C) any
request to amend, waive or terminate the provisions of this Agreement or (D)
any proposal or other statement inconsistent with the terms of this
Agreement; (v) otherwise act, alone or in concert with others (including by
providing financing for another party), to seek or offer to acquire control
of the Company or influence, in any manner, its management, board of
directors or policies; or (vi) assist or encourage any third party, whether
or not a "group" with such third party, to take any of the actions
enumerated in this Section 2.1(b).
Section 2.2 Non-disparagement.
(a) The Company (on its own behalf and on behalf of its directors,
officers, subsidiaries and Affiliates and each of their respective
successors and assigns (collectively, the "Company Parties")) agrees that,
during the Standstill Period, it shall not (whether directly or indirectly,
individually or in concert with others, publicly or privately, orally or in
writing) engage in any conduct or make, or cause to be made, any statement,
observation or opinion, or communicate any information that is calculated to
or is reasonably likely to have the effect of (i) undermining, impugning,
disparaging, injuring the reputation of or otherwise in any way reflecting
adversely or detrimentally upon any of the Seller or his Affiliates,
successors or assigns (collectively, the "Seller Parties") or (ii) accusing
or implying that any Seller Party engaged in any wrongful, unlawful or
improper conduct. The foregoing shall not apply to any compelled testimony,
either by legal process, subpoena or otherwise or to any response to any
request for information from any governmental authority having jurisdiction
over the Company; provided, however, that in the event that any Company
Party is requested pursuant to, or required by, applicable law, regulation or
legal process to testify or otherwise respond to a request for information
from any governmental authority, the Company shall notify Seller promptly so
that the Seller may seek a protective order or other appropriate remedy. In
the event that no such protective order or other remedy is obtained, or any
Seller waives compliance with the terms of this Section 2.2(a), such Company
Party shall furnish only such information which it has been advised by
counsel is legally required and will exercise reasonable efforts to obtain
reliable assurance that such information will be accorded confidential
treatment.
(b) The Seller agrees that, during the Standstill Period, he shall not
(whether directly or indirectly, individually or in concert with others,
publicly or privately, orally or in writing) engage in any conduct or make,
or cause to be made, any statement, observation or opinion, or communicate
any information, including, without limitation, to any member of the press,
analyst, governmental or regulatory agency, that is calculated to or is
reasonably likely to have the effect of (i) undermining, impugning,
disparaging, injuring the reputation of or otherwise in any way reflecting
adversely or detrimentally upon any Company Party or (ii) accusing or
implying that any Company Party engaged in any wrongful, unlawful or improper
conduct; provided, however, that in the event that Seller is requested
pursuant to, or required by, applicable law, regulation or legal process to
testify or otherwise respond to a request from any governmental authority,
Seller shall notify the Company promptly so that the Company may seek a
protective order or other appropriate remedy. In the event that no such
protective order or other remedy is obtained, or any Company Party waives
compliance with the terms of this Section 2.2(b), the Seller shall furnish
only such information which it is advised by counsel is legally required and
will exercise reasonable efforts to obtain reliable assurance that such
information will be accorded confidential treatment.
Section 2.3 Public Announcement; Public Filings.
(a) Upon execution of this Agreement, the Company shall issue a press
release (in substantially the form attached hereto as Exhibit A). No party
hereto nor any of its respective Affiliates shall issue any press release or
make any public statement relating to the transactions contemplated hereby
(including, without limitation, any statement to any governmental or
regulatory agency or accrediting body) that is inconsistent with, or are
otherwise contrary to, the statements in the press release.
(b) Promptly following the date hereof, Seller will cause to be filed
with the Securities and Exchange Commission an amendment to its Schedule 13D
filed on _________________ and prior to filing will provide the Company and
its counsel a reasonably opportunity to review and comment upon such
amendment.
Section 2.4 Confidentiality. Seller shall not disclose and shall
maintain the confidentiality of (and shall cause his Affiliates and
employees to not disclose and to maintain the confidentiality of) any
non-public information which relates to the business, legal or financial
affairs of the Company (the "Confidential Information"). Seller shall use at
least the same degree of care to safeguard and to prevent the disclosure,
publication or dissemination of the Confidential Information as they
respectively employ to avoid unauthorized disclosure, publication or
dissemination of their own information of a similar nature, but in no case
less than reasonable care. In the event that Seller (or any Affiliate or
employee) is requested or required (by oral question, interrogatory, request
for information or documents, subpoena, civil investigative demand or similar
process) to disclose any Confidential Information, Seller shall (a) notify
the Company promptly so that the Company may seek a protective order or other
appropriate remedy and (b) cooperate with the Company in any effort the
Company undertakes to obtain a protective order or other remedy. In the
event that no such protective order or other remedy is obtained, the
applicable party shall disclose to the person compelling disclosure only
that portion of the Confidential Information which such party is advised by
counsel is legally required and shall exercise reasonable efforts to obtain
reliable assurance that confidential treatment is accorded the Confidential
Information so disclosed.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF Seller
Seller hereby makes the following representations and warranties to the
Company:
Section 3.1 Existence; Authority. Seller has all requisite competence,
power and authority to execute and deliver this Agreement, to perform his
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby.
Section 3.2 Enforceability. This Agreement has been duly and validly
executed and delivered by Seller and, assuming due and valid authorization,
execution and delivery by the Company, this Agreement constitutes a legal,
valid and binding obligation of the Seller enforceable against him in
accordance with its terms, except as such enforceability may be affected by
bankruptcy, insolvency, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles.
Section 3.3 Ownership. Seller is the sole record and beneficial owner of
the Purchased Shares, free and clear of any and all Liens. Seller has full
power and authority to transfer full legal ownership of its respective
Purchased Shares to the Company, and Seller is not required to obtain the
approval of any person or governmental agency or organization to effect the
sale of the Purchased Shares. The entire direct or indirect beneficial
ownership of Seller or any of his Affiliates in the Company is [257,451]
Company Shares.
Section 3.4 Good Title Conveyed. Any stock certificates and stock powers
executed and delivered by Seller at the Closing will be valid and binding
obligations of Seller, enforceable in accordance with their respective terms,
and, together with the delivery of Purchased Shares through DWAC, will
effectively vest in the Company good, valid and marketable title to all
Purchased Shares, free and clear of any and all Liens.
Section 3.5 Absence of Litigation. There is no suit, action,
investigation or proceeding pending or, to the knowledge of Seller
threatened against such party that could impair the ability of Seller to
perform its obligations hereunder or to consummate the transactions
contemplated hereby.
Section 3.6 Other Acknowledgments.
(a) Seller hereby represents and acknowledges that he is a sophisticated
investor and he knows the Company may have material Confidential Information
concerning the Company and its condition (financial and otherwise), results
of operations, businesses, properties, plans and prospects and that such
information could be material to Seller's' decision to sell the Purchased
Shares or otherwise materially adverse to Seller's interests. Seller
acknowledges and agrees that the Company shall have no obligation to
disclose to it or him any such information and hereby waives and releases, to
the fullest extent permitted by law, any and all claims and causes of action
it has or may have against the Company and their respective Affiliates,
officers, directors, employees, agents and representatives based upon,
relating to or arising out of nondisclosure of such information or the sale
of the Purchased Shares hereunder.
(b) Seller further represents that it or he has adequate information
concerning the business and financial condition of the Company to make an
informed decision regarding the sale of the Purchased Shares and has,
independently and without reliance upon the Company, made his own analysis
and decision to sell the Purchased Shares. With respect to legal, tax,
accounting, financial and other considerations involved in the transactions
contemplated by this Agreement, including the sale of the Purchased Shares,
Seller is not relying on the Company (or any agent or representative
thereof). Seller carefully considered and, to the extent he believes such
discussion necessary, discussed with professional legal, tax, accounting,
financial and other advisors the suitability of the transactions
contemplated by this Agreement, including the sale of the Purchased Shares.
Seller acknowledges that the Company or any of their respective directors,
officers, subsidiaries or Affiliates has not made or makes any
representations or warranties, whether express or implied, of any kind
except as expressly set forth in this Agreement.
(c) Seller is an "accredited investor" as defined in Rule 501 promulgated
under the Securities Act. The sale of the Purchased Shares by Seller (i)
was privately negotiated in an independent transaction and (ii) does not
violate any rules or regulations applicable to Seller.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company makes the following representations and warranties to Seller:
Section 4.1 Existence; Authority. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware. The Company has all requisite corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement.
Section 4.2 Enforceability. This Agreement has been duly and validly
executed and delivered by the Company and, assuming due and valid
authorization, execution and delivery by Seller, this Agreement constitutes a
legal, valid and binding obligation of the Company, enforceable against it
in accordance with its terms, except as such enforceability may be affected
by bankruptcy, insolvency, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles.
Section 4.3 Absence of Litigation. There is no suit, action,
investigation or proceeding pending or, to the knowledge of the Company,
threatened against such party that could impair the ability of the Company to
perform its obligations hereunder or to consummate the transactions
contemplated hereby.
ARTICLE V
miscellaneous
Section 5.1 Survival. Each of the representations, warranties,
covenants, and agreements in this Agreement or pursuant hereto shall survive
the Closing. Notwithstanding any knowledge of facts determined or
determinable by any party by investigation, each party shall have the right
to fully rely on the representations, warranties, covenants and agreements of
the other parties contained in this Agreement or in any other documents or
papers delivered in connection herewith. Each representation, warranty,
covenant and agreement of the parties contained in this Agreement is
independent of each other representation, warranty, covenant and agreement.
Except as expressly set forth in this Agreement, no party has made any
representation warranty, covenant or agreement.
Section 5.2 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given if so given) by hand delivery, cable,
telecopy or mail (registered or certified, postage prepaid, return receipt
requested) to the respective parties hereto addressed as follows:
If to the Company:
443 Broadhollow Road, Suite 100
Melville, NY 11747
Attention: Richard B. Goodman
Telecopy #: (631) 775-4223
If to Seller:
1307 Monroe Street
LaPorte, Indiana 46350
Telecopy #:
Section 5.3 Certain Definitions. As used in this Agreement, (a) the term
"Affiliate" shall have the meaning set forth in Rule 12b-2 under the
Exchange Act and shall include persons who become Affiliates of any person
subsequent to the date hereof; (b) the term "Voting Securities" shall mean
the Company Shares and any other securities of the Company entitled to vote
in the election of directors, or securities convertible into, or exercisable
or exchangeable for, securities of the Company entitled to vote in the
election of directors, whether or not subject to the passage of time or other
contingencies; and (c) the Company and Seller will be referred to herein
individually as a "party" and collectively as "parties."
Section 5.4 Specific Performance. The Company, on the one hand, and
Seller, on the other hand, acknowledge and agree that the other would be
irreparably injured by a breach of this Agreement and that money damages are
an inadequate remedy for an actual or threatened breach of this Agreement.
Accordingly, the parties agree to the granting of specific performance of
this Agreement and injunctive or other equitable relief as a remedy for any
such breach or threatened breach, without proof of actual damages, and
further agree to waive any requirement for the securing or posting of any
bond in connection with any such remedy. Such remedy shall not be deemed to
be the exclusive remedy for a breach of this Agreement, but shall be in
addition to all other remedies available at law or equity.
Section 5.5 No Waiver. Any waiver by any party hereto of a breach of any
provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party hereto to insist upon
strict adherence to any term of this Agreement on one or more occasions shall
not be considered a waiver or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this
Agreement.
Section 5.6 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated by such holding. The parties agree that the court making any
such determination of invalidity or unenforceability shall have the power to
reduce the scope, duration or area of, delete specific words or phrases in,
or replace any such invalid or unenforceable provision with one that is
valid and enforceable and that comes closest to expressing the intention of
such invalid or unenforceable provision, and this Agreement shall be
enforceable as so modified after the expiration of the time within which the
judgment may be appealed.
Section 5.7 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that this Agreement (and any of the rights,
interests or obligations of any party hereunder) may not be assigned by any
party without the prior written consent of the other parties hereto, such
consent not to be unreasonably withheld. Any purported assignment of a
party's rights under this Agreement in violation of the preceding sentence
shall be null and void.
Section 5.8 Entire Agreement; Amendments. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter
hereof and, except as expressly set forth herein, is not intended to confer
upon any person other than the parties hereto any rights or remedies
hereunder. This Agreement may be amended only by a written instrument duly
executed by the parties hereto or their respective permitted successors or
assigns.
Section 5.9 Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
Section 5.10 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without giving effect to choice of law principles thereof that would cause
the application of the laws of any other jurisdiction.
Section 5.11 Submission to Jurisdiction. Each of the parties irrevocably
submits to the exclusive jurisdiction and service and venue in any federal
or state court sitting in the State of Delaware for the purposes of any
action, suit or proceeding arising out of or with respect to this Agreement.
Each of the parties irrevocably and unconditionally waives any objections to
the laying of venue of any action, suit or proceeding relating to this
Agreement in any federal or state court sitting in the State of Delaware,
and hereby further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Each of
the parties hereto hereby irrevocably waives the right to A trial by jury.
Section 5.12 Counterparts; Facsimile. This Agreement may be executed in
counterparts, including by facsimile or PDF electronic transmission, each of
which shall be deemed an original, but all of which together shall constitute
one and the same Agreement.
Section 5.13 Further Assurances. Upon the terms and subject to the
conditions of this Agreement, each of the parties hereto agrees to execute
such additional documents, 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 parties in doing, all things necessary,
proper or advisable to consummate or make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
Section 5.14 Interpretation. The parties acknowledge and agree that this
Agreement has been negotiated at arm's length and among parties equally
sophisticated and knowledgeable in the matters covered hereby. Accordingly,
any rule of law or legal decision that would require interpretation of any
ambiguities in this Agreement against the party that has drafted it is not
applicable and is hereby waived.
[SIGNATURE PAGES FOLLOW]IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first written
above.
P&F INDUSTRIES INC.
By:__________________________
Name:
DWAC Instructions:
Broker
Name:
DTC Number:
Account
Number:
TIMOTHY J. STABOSZ
EXHIBIT A
Form of Press Release P&F Industries Inc. Announces Stock Repurchase
Agreement
P&F Industries Inc. (Nasdaq: PFIN, the "Company") today announced it has
entered into an agreement whereby the Company will repurchase [257,451] of
its common shares from Timothy J Stabosz in a privately negotiated
transaction at [$5] per share for a total purchase price of $___________.
Richard Horowitz, Chairman and Chief Executive Officer of the Company,
commented, "This transaction enables us to make attractive use of our
capital to acquire a meaningful block of Company shares at a favorable price.
The repurchase should be immediately accretive to earnings per share."
The repurchase is expected to close in the next several days. Pursuant to
the purchase agreement, Mr. Stabosz will be bound by a three-year standstill
provision.
[P&F tag]
Except for historical information contained herein, statements in the release
are forward-looking statements that are made pursuant to the safe harbor
provisions of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements involve known and unknown risks and
uncertainties, which may cause the Company's actual results in future periods
to differ materially from forecasted results. Those risks include, but are
not limited to, risks associated with pricing, volume, cash flow guidance,
fluctuations in exchange rates and conditions of markets. Those and other
risks are described in the Company's filings with the Securities and
Exchange Commission (the "SEC") over the last 12 months, copies of which are
available from the SEC or may be obtained from the Company.
EX-2
3
email.txt
STABOSZ E-MAIL TO P&F REFUSING TO ACCEDE TO DRAFT PROPOSAL'S TERMS
E-mail dated June 25, 2012 to P&F's outside counsel Steve Kuperschmid
(and to the P&F Board of directors).
[corrected for spelling and grammar]
Steve,
I've decided I'm not going to do any deal that involves a standstill. However
high the opportunity cost is for me, it's wrong for my self-respect. And
it's also wrong for the P&F board's self-respect.
I'm, frankly, flabbergasted that the board would be comfortable with how it
would negatively reflect on its image, considering everything that has gone on
the last 2 1/2 years, to make what would have otherwise been an opportunistic
buyback into what smacks of a payment of "greenmail." I'm not going to
countenance such a thing, or be associated with it. The board needed to
decide whether or not the purchase of a large block, in its own right, is
objectively beneficial for the company's broader shareholder base, not whether
"we can get this guy to stay away." (Wasn't getting "this guy" out of a 7%
stake in the company enough for Richard and his cronies? Do we really have to
be shameless about it...especially considering how much my efforts have HELPED
P&F in improving its governance?) As it stands now, I can only assume that
the board's PRIMARY interest (with the exception of perhaps 3 members) is not
to buy back a block of stock and add to shareholder value...but to buy my
silence, and get things back to "letting Richard have his company back."
Personally, I find that disquieting and despicable...with the result being
that instead of doing an amicable deal, you "force" me into a position of
having to keep my stock, to defend a moral high ground.
I simply cannot cut all of the little shareholders loose, based upon what the
board's stance about buying back my shares evidences about the overall
INDEPENDENCE of the board. In that sense, this whole effort has been useful,
and REVELATORY. (Should I be surprised? It only validates everything I've
been saying about this board, collectively, in all of my filings and press
releases.)
I'm sorry we couldn't come to terms where I could feel clean. I suggest you
follow my original 13D suggestion, and the board get off its butt, and buy
back common stock in the open market, or do a tender offer. (Also, please ask
Messrs. Solomon, Goldberg, Scheriff, and Franklin, to get off their butts, and
buy stock in the open market, for their own accounts, to validate that they do
not sit on this board merely as a favor to Richard Horowitz.) If it would add
value buying back my 7% at $5, it would add value buying back anyone else's.
And buying back stock, as I have said INNUMERABLE times, is almost certainly
better than letting Richard make another acquisition. While this is an idle
speculation, and not a "plan or proposal," you could probably buy back a
million shares, over the next couple years, based upon my expectation of the
company's profits, and add immeasurably to value. Then Richard could take
it private...at a fair price....which is what a self-respecting independent
board would have "forced" him to do (or sold the company out from under him),
at least 10 years ago.
As it stands now, I will continue to be a witness to P&F's dysfunctional
(albeit markedly improved) governance and oversight.
I do appreciate the mutual good faith in exploring selling my shares to the
company. I just find the terms morally reprehensible, as well as the board's
willingness to entertain such terms.
Timothy Stabosz