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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No.7)
P&F
INDUSTRIES, INC.
(Name of Issuer)
Class A Common Stock
(Title of Class of Securities)
692830508
(CUSIP Number)
Gary T. Moomjian, Esq.
Moomjian, Waite & Coleman, LLP
350 Jericho Turnpike, Suite 104
Jericho, New York 11753
(516) 937-5900
(Name, Address and Telephone Number of Person
Authorized to Receive Notice and Communications)
October 13, 2023
(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 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 §240.13d-7 for other parties to whom copies are to be sent.
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SCHEDULE 13D/A
CUSIP NO. 692830508
| 1. | NAMES OF REPORTING PERSONS |
| | Richard Horowitz |
| | |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
| | (a) ¨ |
|
| | |
|
| | (b) ¨ |
|
| | |
| 3. | SEC USE ONLY |
| | |
| 4. | SOURCE OF FUNDS |
| | Not applicable |
| | |
| 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 of America |
| | |
| Number of |
7. |
Sole Voting Power |
1,475,041shares of Class A Common Stock (1) (2) |
| Shares |
|
|
|
| Beneficially |
8. |
Shared Voting Power |
0 |
| Owned |
|
|
|
| By |
|
|
|
| Each |
9. |
Sole Dispositive Power |
1,475,041 shares of Class A Common Stock (1) (2) |
| Reporting |
|
|
|
| Person with: |
10. |
Shared Dispositive Power |
0 |
| |
|
|
|
| 11. | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | 1,475,041 shares of Class A Common Stock (1) |
| | |
| 12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨ |
| | |
| 13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | 45.7% of outstanding Class A Common Stock |
| | |
| 14. | TYPE OF REPORTING PERSON |
| | IN |
| | |
| (1) | Includes 30,000 shares of Class A Common Stock underlying stock options exercisable within 60 days of the filing of this Amendment
No. 7. |
| (2) | See Items 4 and 6 in respect to Mr. Horowitz’s agreement relating to voting and disposition of shares. |
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SCHEDULE 13D/A
Introductory Note:
This Amendment No. 7 (“Amendment No. 7”) amends
a Statement on Schedule 13D dated May 18, 2000 by Richard Horowitz (the “Reporting Person” or “Mr. Horowitz”)
and Linda Horowitz, as amended by Amendment No. 1 filed jointly by the Reporting Person, the Estate of Linda Horowitz (the “Estate”)
and The Article FOURTH Trust u/w/o Linda Horowitz (the “Trust”) on May 23, 2007, Amendment No. 2 filed jointly by the Reporting
Person, the Estate and the Trust on April 28, 2008, Amendment No. 3 filed jointly the Reporting Person and the Trust on July 5, 2014,
Amendment No. 4 filed by the Reporting Person on October 22, 2014, Amendment No. 5 filed by the Reporting Person on February 20, 2019,
and Amendment No. 6 filed by the Reporting Person on March 22, 2023 (such Statement on Schedule 13D as amended by Amendment No. 1, Amendment
No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5, and Amendment No. 6, the “Schedule 13D”).
Item 4. Purpose of the Transaction
Item 4 of the Schedule 13D is hereby amended and supplemented by the
addition of the following:
On October 13, 2023, P & F Industries, Inc.,
a Delaware corporation (the ”Company”), Tools AcquisitionCo., LLC, a Delaware limited liability company (“Parent”),
and Tools MergerSub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Acquisition Sub”), entered into
an Agreement and Plan of Merger (the “Merger Agreement”). The Merger Agreement provides, upon the terms and subject to the
conditions set forth therein, for the merger of Acquisition Sub with and into the Company, with the Company surviving the Merger as a
wholly owned subsidiary of Parent.
Pursuant to the terms and subject to the conditions
set forth in the Merger Agreement, at the effective time of the Merger, each share of Common Stock issued and outstanding immediately
prior to the effective time will be cancelled and converted into the right to receive $13.00 per share in cash (the “Per Share Merger
Consideration”).
In connection with the Merger Agreement, on October
13, 2023, Richard Horowitz entered into a Voting and Support Agreement (the “Voting Agreement”) with Parent, pursuant to which
and subject to the terms and conditions set forth therein, Mr. Horowitz has agreed, among other things, to vote, subject to his existing
stockholder agreement with the board of directors of the Company, all of the shares of Common Stock of the Company owned by him (i) in
favor of the adoption of the Merger Agreement or any matter to be approved by the stockholders of the Company to facilitate the Merger
and (ii) against any proposal, action or alternate transaction involving the Company or its subsidiaries which would impede, frustrate,
prevent or nullify the Merger. In addition, Mr. Horowitz has agreed that in the event that a termination fee is payable by the Company
to the Parent pursuant to the Merger Agreement, then, subject to the terms and conditions of the Voting Agreement, Mr. Horowitz will pay
to Parent a fee equal to 50% of his Profit (as defined below) from his sale or transfer of Common Stock of the Company owned by him pursuant
to the transactions contemplated by the Competing Proposal (as defined in the Merger Agreement) to which the Company termination fee relates.
“Profit” for purposes of the Voting Agreement means the difference between (i) the consideration per share received by Mr.
Horowitz in respect of the Competing Proposal less the Per Share Merger Consideration multiplied by (ii) the number of shares sold or
transferred by Mr. Horowitz in such other transaction.
The Voting Agreement will terminate upon the earlier
of (i) the closing of the Merger, (ii) any termination of the Merger Agreement in accordance with its terms or (iii) any amendment to
the Merger Agreement that reduces or changes the form of the merger consideration.
In addition, in connection with the Merger Agreement,
on October 13, 2023, Richard A. Horowitz entered into a letter agreement with the Board of Directors of the Company (the “Letter
Agreement”) which amended the existing letter agreement between Mr. Horowitz and the Board dated February 14, 2019 (the “Existing
Letter Agreement). Mr. Horowitz agreed, in respect to the vote regarding the Merger Agreement, to vote any shares of the Common Stock
of the Company owned by him that are in excess of 42.5% of the issued and outstanding Common Stock of the Company in proportion to the
vote of all holders of Company Common Stock, other than shares held by him or any other 13(d) filer (“Proportionate Vote”);
the Existing Letter Agreement provided an option for Mr. Horowitz to exercise a Proportionate Vote or not vote at all with respect to
such excess shares. The Letter Agreement also provides that any vote of Mr. Horowitz’ shares that are subject to the Voting Agreement
shall be deemed for purposes of certain sections of the Existing Letter Agreement to be irrevocably approved for all purposes by all of
the independent directors of the Company.
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The foregoing summary of the Voting Agreement and
the Letter Agreement are not complete and are qualified in their entirety to the full text of the Support Agreement and the Letter Agreement,
which are attached as Exhibits 1 and 2 hereto and incorporated herein by reference. In addition, the foregoing description of the Merger
Agreement is not complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is attached as
Exhibit 2.1 to the Form 8-K filed by the Company on October 13, 2023.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
Item 6 of the Schedule 13D is hereby amended
and supplemented by the addition of the following:
The response to Item 4 of this Amendment No. 7
is incorporated herein by reference.
Item 7. Material to be filed as Exhibits
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Signature
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this statement is true, complete and correct.
October 13, 2023
| |
/s/ Richard Horowitz |
|
| |
Richard Horowitz |
|
Exhibit 99.1
VOTING
AND SUPPORT AGREEMENT
THIS VOTING AND SUPPORT AGREEMENT,
dated as October 13, 2023 (this “Agreement”), is entered into by and between Tools AcquisitionCo, LLC, a Delaware limited liability company (“Parent”),
and Richard A Horowitz (collectively, the “Stockholder”).
W I T N E S S E T H:
WHEREAS, Parent, Tools MergerSub, Inc.,
a Delaware corporation and a wholly-owned Subsidiary of Parent, and P&F Industries, Inc., a Delaware corporation (the “Company”),
are executing an Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended or otherwise modified from time
to time in accordance with the terms thereof, the “Merger Agreement”). Terms that are defined in the Merger Agreement
that are not defined herein are used in this Agreement as they are defined in the Merger Agreement;
WHEREAS, as a condition to
Parent executing and delivering the Merger Agreement, Parent is requiring that the Stockholder enter into this Agreement to, among other
things, vote: (i) the shares of Class A common stock, $1.00 par value per share, of the Company (“Company Stock”),
owned by the Stockholder, (ii) all securities exchangeable, exercisable or convertible into Company Stock (including any options,
warrants, restricted stock units and other rights to acquire shares of Company Stock and securities issued or exchanged with respect to
such Company Stock, upon any recapitalization, reclassification, merger, consolidation, spin-off, partial or complete liquidation, stock
dividend, split-up or combination of the securities of the Company or upon any other change in the Company’s capital structure)
and (iii) any additional securities of the Company, in each case whether now owned or hereafter acquired by the Stockholder (collectively,
clauses (i) through (iii), the “Securities”) in favor of the Merger Agreement and the Merger (to the extent such
Securities are eligible to vote on such matter); and
WHEREAS, as of the date hereof,
the Stockholder has the power to vote and dispose of 1,445,041 shares of Company Stock (the “Existing Shares”).
NOW, THEREFORE, in contemplation
of the foregoing and in consideration of the mutual agreements, covenants, representations and warranties contained herein and intending
to be legally bound hereby, the parties hereto agree as follows:
1. Certain
Covenants.
1.1 Support.
The Stockholder hereby covenants and agrees that between the date hereof and the Termination Date, the Stockholder will not (a) directly
or indirectly, sell, transfer, assign, pledge, hypothecate, tender, encumber or otherwise dispose of or limit its right to vote the Securities,
or agree to do any of the foregoing (each a “Transfer”); (b) knowingly take any action which is, individually
or in the aggregate, reasonably likely to delay, prevent or have an adverse effect on the Stockholder’s ability to satisfy its obligations
under this Agreement or (c) take any action that would make any of its representations or warranties contained herein untrue or incorrect
or have the effect of preventing, disabling or impeding the Stockholder from performing its obligations under this Agreement. Notwithstanding
the foregoing, in connection with any Transfer not involving or relating to any Competing Proposal, the Stockholder may Transfer any or
all of the Securities to any family member(s) or Affiliate of the Stockholder or trust formed for estate planning purposes; provided,
however, that in any such case, prior to and as a condition to the effectiveness of such Transfer, each Person to which any of
such Securities or any interest in any of such Securities is Transferred shall have executed and delivered to Parent a counterpart to
this Agreement pursuant to which such Person shall be bound by all of the terms and provisions of this Agreement. “Family member”
may include a spouse, lineal descendant or antecedent or brother or sister, including spouses of such persons and including adoptees.
1.2 No
Solicitation. During the term of this Agreement, Stockholder shall not take any action that would then be prohibited by Section 6.5
of the Merger Agreement if the Stockholder were a Representative of the Company; provided, that Stockholder may enter into any
binding definitive agreement with respect to a Superior Proposal concurrently with, or immediately prior to, the Company terminating the
Merger Agreement in accordance with its terms and entering into such an agreement with respect to such Superior Proposal. To the extent
that Section 6.5 of the Merger Agreement (or any definition used therein) is amended, modified or supplemented following the date
of this Agreement in a manner adverse to the Stockholder, the Stockholder shall be bound pursuant to this Section 1.2 with respect
to such Section 6.5 as it exists as of the date of this Agreement (and not as amended, modified or supplemented).
1.3 Standstill.
The Stockholder shall terminate any proxy solicitation relating to the Company. From and after the date of this Agreement until its termination
in accordance with its terms, without the prior written consent of Parent, the Stockholder shall not and shall instruct its Representatives
not to: (a) in any manner, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any assets or securities
of the Company (or Beneficial Ownership thereof) or any rights or options to acquire any assets or securities of the Company (or Beneficial
Ownership thereof); (b) propose to enter into, directly or indirectly, any merger or business combination involving the Company or
any of its subsidiaries or divisions; (c) disclose any intention, plan, or arrangement inconsistent with the foregoing; or (d) advise,
assist, or encourage any other Persons in connection with any of the foregoing; provided, however, that the foregoing shall
not restrict Stockholder from, with respect to clauses (b), (c) and (d), taking any such actions on behalf of or as a Representative
of the Company that would not constitute a breach of the Merger Agreement.
1.4 Certain
Events. This Agreement and the obligations hereunder will attach to the Securities and will be binding upon any person to which legal
or Beneficial Ownership of any or all of the Securities passes, whether by operation of applicable Law or otherwise, including the Stockholder’s
successors or assigns. This Agreement and the obligations hereunder will also attach to any additional shares of Company Stock or other
Securities of the Company issued to or acquired by the Stockholder after the date hereof.
1.5 Grant
of Proxy; Voting Agreement.
(a) The
Stockholder has revoked or terminated any proxies, voting agreements or similar arrangements previously given or entered into with respect
to the Securities except pursuant to that certain Letter Agreement, dated as of February 14, 2019, by and between the Stockholder
and the Board of Directors of the Company, as amended as of October 13, 2023 (the “Existing Stockholder Agreement”).
The Stockholder hereby irrevocably appoints Parent as proxy for the Stockholder to vote the Securities entitled to vote, for the Stockholder
and in the Stockholder’s name, place and stead, at any annual or special meeting, or at any adjournment thereof, subject to the Existing Stockholder Agreement (as amended), for the adoption
of the Merger Agreement and approval of the Merger (but only at such a meeting called for the purpose of voting with respect to the adoption
of the Merger Agreement and approval of the Merger and only with respect to a proposal relating thereto). The parties acknowledge and
agree that neither Parent, nor Parent’s successors, assigns, subsidiaries, divisions, employees, stockholders, Representatives
and Affiliates shall owe any duty, whether in law or otherwise, or incur any liability of any kind whatsoever, including without limitation,
with respect to any and all claims, losses, demands, causes of action, costs, expenses (including reasonable attorney’s fees) and
compensation of any kind or nature whatsoever, to the Stockholder in connection with or as a result of any voting by Parent of the Securities
or any execution of any consent as provided for in this Agreement. The parties acknowledge that, pursuant to the authority hereby granted
under the irrevocable proxy (which proxy is coupled with an interest in the Securities), Parent may vote the Securities in furtherance
of its own interests and Parent is not acting as a fiduciary for the Stockholder; provided, however, that the foregoing
shall only be effective if Stockholder fails to be counted as present, to consent or to vote the Securities, as applicable, in accordance
with this Agreement. This proxy shall expire and be deemed revoked automatically at the termination of this Agreement.
(b) The
Stockholder hereby irrevocably and unconditionally covenants and agrees that, during the Voting Period (as hereinafter defined), at any
meeting of the stockholders of the Company (whether annual or special), however called, or at any adjournment or postponement thereof,
or in any other circumstances (including an action by written consent) upon which a vote or other approval is sought, the Stockholder
shall, subject to the Existing Stockholder Agreement (as amended): (i) with respect to any vote relating to the Merger Agreement,
the Merger or any other matter to be approved by the stockholders of the Company to facilitate any of them, appear at such meeting or
otherwise be counted as present thereat for the purpose of establishing a quorum and vote the Securities, in person or by proxy, in favor
of the adoption of the Merger Agreement and the approval of the Merger and (ii) vote (or cause to be voted), in person or by proxy,
the Securities against (A) any extraordinary corporate transaction (other than the Merger), such as a merger, consolidation, business
combination, tender or exchange offer, reorganization, recapitalization, liquidation, or sale or transfer of all or substantially all
of the assets or securities of the Company or any of its Subsidiaries, (B) any amendment of the Company’s certificate of incorporation
or by-laws other than as contemplated by the Merger Agreement, (C) any other proposal, action or transaction involving the Company
or any of its Subsidiaries, which amendment or other proposal, action or transaction would reasonably be expected to in any manner impede,
frustrate, prevent or nullify the Merger or the Merger Agreement, (D) any extraordinary dividend, distribution or recapitalization
by the Company or change in capital structure of the Company (other than pursuant to the Merger Agreement) and (E) any Competing
Proposal (the matters described in the foregoing clauses (A) through (E) being referred to as “Competing Actions”);
and (iii) not take any action by written consent to approve any Competing Action. For purposes of this Agreement, “Voting
Period” means the period commencing on the date hereof and ending on the termination of this Agreement.
(c) Until
the termination of this Agreement in accordance with its terms, the obligations of the Stockholder specified in this Section 1.5
shall apply whether or not the Board of Directors of the Company (or any committee thereof) has effected an Adverse Recommendation Change.
Any such vote shall be cast (or consent shall be given) by the Stockholder in accordance with such procedures relating thereto so as to
ensure that it is duly counted, including for purposes of determining whether a quorum is present.
(d) The
irrevocable proxy to be granted pursuant to Section 1.5(a) shall not be terminated by any act of the Stockholder or by
operation of law. If between the execution hereof and the Termination Date, the Stockholder dies or is incapacitated, any trust or estate
holding the Securities should be terminated, or if any corporation or partnership holding the Securities should be dissolved or liquidated,
or if any other such similar event or events shall occur before the Termination Date, certificates or book-entry credits representing
the Securities shall be delivered by or on behalf of the Stockholder in accordance with the terms and conditions of this Agreement, and
actions taken by Parent hereunder shall be as valid as if such death, incapacity, termination, dissolution, liquidation or other similar
event or events had not occurred, regardless of whether or not Parent has received notice of such death, incapacity, termination, dissolution,
liquidation or other event.
1.6 Disclosure.
The Stockholder hereby authorizes Parent and the Company to publish and disclose in any announcement or disclosure required by the SEC,
the NASDAQ Global Market or any other national securities exchange and, to the extent required by applicable Law, the Proxy Statement
(including all documents and schedules filed with the SEC in connection therewith) and any other required filings under the Securities
Act or the Exchange Act or otherwise required by Law, its identity and ownership of the Securities and the nature of its commitments,
arrangements and understandings under this Agreement. Parent hereby authorizes the Stockholder to make such disclosure or filings as may
be required by the SEC or NASDAQ Global Market or any other national securities exchange or the OTC Bulletin Board.
1.7 Participation.
(a) In
the event that a Termination Fee is payable pursuant to Section 8.3(a)(i) of the Merger Agreement, within ten days after
the time such Termination Fee is payable pursuant to Section 8.3(a) of the Merger Agreement, the Stockholder shall pay
to Parent a fee equal to 50% of the Stockholder’s Profit from the sale or Transfer of any Securities pursuant to the transactions
contemplated by the Competing Proposal to which such Termination Fee relates.
(b) In
the event that the Merger Agreement is terminated by the Company pursuant to Section 8.1(c)(ii) of the Merger Agreement
or by Parent pursuant to Section 8.1(d)(ii) of the Merger Agreement, the Stockholder shall pay to Parent a fee equal
to 50% of the Stockholder’s Profit from the sale or Transfer of any Securities pursuant to any transactions entered into or consummated
by the Company within twelve months of such termination in each case within seven Business Days of the consummation of such transactions
(in each case where a Termination Fee was payable by the Company).
(c) For
purposes of this Section 1.7, the “Stockholder’s Profit” shall mean (A) the aggregate consideration
for or on account of the Securities that were sold or otherwise Transferred as described in Section 1.7(a) including
dividends or distributions directly or indirectly made in connection with any transaction, valuing any non-cash consideration (including
any residual interest in the Company) at its fair market value on the date of such consummation, less (B) the product of (x) Merger
Consideration per share of Common Stock (which shall be no less than $13.00) and (y) the number of Securities so sold or otherwise
Transferred by the Stockholder.
(d) For
purposes of this Section 1.7, the fair market value of any non-cash consideration consisting of: (i) securities listed
on a national securities exchange (“Traded Securities”) shall be equal to the average closing price per share of such
security as reported on the composite trading system of such exchange for the five trading days ending on the trading day immediately
prior to the date of the value determination; and (ii) consideration which is other than cash or Traded Securities shall be determined
by agreement of the Stockholder and the Parent, or if they cannot agree, a nationally recognized independent investment banking firm mutually
agreed upon by the Stockholder and Parent within ten Business Days of the event requiring selection of such banking firm; provided,
however, that if the parties are unable to agree within two Business Days after the date of such event as to the investment banking
firm, then the Parent shall select one firm and the Stockholder shall select another firm, and those firms shall select a third investment
banking firm, which third firm shall make such determination; provided, further, that the fees and expenses of such investment
banking firm shall be borne equally by Parent and the Stockholder. The determination of the investment banking firm shall be binding upon
the parties.
(e) Any
payment of Stockholder’s Profit under this Section 1.7 shall be paid, at Stockholder’s election, either in cash
or in the same proportion of cash and non-cash consideration as the aggregate consideration received by the Stockholder in the consummation
of any Competing Proposal.
2. Representations
and Warranties of Stockholder. The Stockholder hereby represents and warrants to Parent, as of the date hereof, that:
2.1 Ownership.
Stockholder is the record and Beneficial Owner of the Securities, and the Securities, and the stock options referred to below, constitute
the Stockholder’s entire interest in the outstanding capital stock of the Company. The Securities are, and (except as otherwise
permitted by this Agreement) prior to the Effective Time will be, Beneficially Owned and owned of record by the Stockholder, free and
clear of any Liens, of any nature whatsoever, except for restrictions on transfer under securities Laws and except for those created by
this Agreement and the Existing Stockholder Agreement. As of the date hereof, the Stockholder does not hold any options, warrants or other
rights to purchase any Securities other than stock options to purchase 30,000 shares of Company Common Stock. As of the date hereof, the
Existing Shares, and such stock options, constitute all of the shares of Company Stock Beneficially Owned or owned of record by the Stockholder.
The Stockholder has and (except as provided in the Existing Stockholder Agreement and as otherwise expressly provided by this Agreement)
will have at all times through the Effective Time sole voting power (including the right to control such vote as contemplated herein)
with respect to the matters set forth in this Agreement, sole power of disposition, sole power to issue instructions with respect to the
matters set forth in this Agreement, and sole power to agree to all of the matters set forth in this Agreement, in each case, with respect
to all of the Stockholder’s Existing Shares and with respect to all of the Securities owned by the Stockholder at all times through
the Effective Time. “Beneficial Ownership” by a person of any securities includes ownership by any Person who, directly
or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares (i) voting power which
includes the power to vote, or to direct the voting of, such security; and/or (ii) investment power which includes the power to dispose,
or to direct the disposition, of such security; and shall otherwise be interpreted in accordance with the term “beneficial ownership”
as defined in Rule 13d-3 adopted by the Securities and Exchange Commission under the Exchange Act, as amended; provided that for
purposes of determining Beneficial Ownership, a Person shall be deemed to be the Beneficial Owner of any securities which such Person
has, at any time during the term of this Agreement, the right to acquire pursuant to any agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants or options, or otherwise (irrespective of whether the right to acquire such
securities is exercisable immediately or only after the passage of time, including the passage of time in excess of 60 days, the satisfaction
of any conditions, the occurrence of any event or any combination of the foregoing). The terms “Beneficially Own” and “Beneficially
Owned” shall have a correlative meaning.
2.2 Authorization.
The Stockholder has all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Stockholder have been
duly and validly authorized by all necessary action of the Stockholder, and no other proceedings on the part of the Stockholder are necessary
to authorize the execution and delivery of this Agreement or to consummate Merger and the other transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Stockholder and, assuming the due authorization, execution and delivery by Parent,
this Agreement constitutes a legal, valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization
or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity).
2.3 No
Violation.
(a) The
execution, delivery and performance of this Agreement by the Stockholder do not and will not, with or without notice or lapse of time,
or both, (i) conflict with or violate any Law applicable to the Stockholder or by which any property or asset of the Stockholder
is bound or (ii) result in any breach or violation of, or constitute a default (or an event which with notice or lapse of time or
both would become a default), or result in a right of payment or loss of a benefit under, or give rise to any right of termination, cancellation,
amendment or acceleration of, any Contract to which the Stockholder is a party or otherwise, other than any such conflict, violation,
breach, default, termination, amendment, acceleration, cancellation that are not, individually or in the aggregate, reasonably likely
to delay, prevent or have a material adverse effect on the Stockholder’s ability to satisfy its obligations under this Agreement.
(b) The
execution, delivery and performance of this Agreement by the Stockholder do not and, at the time of the Closing will not, require any
consent, approval, order, license, authorization or permit of, action by, filing, registration or declaration with or notification to,
any Governmental Authority or any other person, except for applicable requirements of the Exchange Act and except where failure to obtain
such consents, approvals, authorizations, waivers or permits, or to make such filings or notifications that are not, individually or in
the aggregate, reasonably likely to delay, prevent or have a material adverse effect on the Stockholder’s ability to satisfy its
obligations under this Agreement.
2.4 No
Proceedings. No Actions are pending, or to the knowledge of Stockholder, threatened, against Stockholder that is material to the Stockholder,
taken as a whole, or is seeking damages in excess of $100,000 and (ii) neither the Stockholder nor any of his representatives or
properties is or are subject to any material judgment, order, injunction, ruling or decree of any Governmental Authority. The Stockholder
acknowledges that he, the Parent and any Person on behalf of him or the Parent has not made and does not make any representation or warranty,
whether express or implied, of any kind or character except as expressly set forth in this Agreement.
2.5 Reliance
by Parent. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s
execution and delivery of this Agreement and the representations and warranties of the Stockholder herein.
2.6 The
Stockholder Has Adequate Information. The Stockholder is a sophisticated seller with respect to the Securities and has adequate information
concerning the business and financial condition of the Company to make an informed decision regarding the sale of the Securities and has
independently and without reliance upon the Parent and based on such information as the Stockholder has deemed appropriate, made its own
analysis and decision to enter into this Agreement.
3. Representations
and Warranties of Parent. Parent hereby represents and warrants to the Stockholder, as of the date hereof that:
3.1 Authorization.
Parent has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder
and to consummate the transactions contemplated hereby. The execution and delivery by Parent of this Agreement and the consummation by
Parent of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action of Parent, and
no other proceedings on the part of Parent are necessary to authorize the execution and delivery of this Agreement.
3.2 No
Violation. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will
require any consent, approval, order, license, authorization or permit of, action by, filing, registration or declaration with or notification
to, any Governmental Authority or any other person, except for applicable requirements of the Exchange Act, Blue Sky Laws, any applicable
non-U.S. competition, antitrust or investment Laws, filing and recordation of appropriate merger documents as required by the DGCL and
except where failure to obtain such consents, approvals, authorizations, waivers or permits, or to make such filings or notifications
that are not, individually or in the aggregate, reasonably likely to delay, prevent or have a material adverse effect on the Parent’s
ability to satisfy its obligations under this Agreement or (b) violate, result in a default under, or conflict with contract, agreement
or understanding or any applicable Law binding upon Parent, except for such violations, defaults or conflicts which are not, individually
or in the aggregate, reasonably likely to delay, prevent or have a material adverse effect on Parent’s ability to satisfy its obligations
under this Agreement. No proceedings are pending which, if adversely determined, will, individually or in the aggregate, be reasonably
likely to delay, prevent or have a material adverse effect on the Parent’s ability to satisfy its obligations under this Agreement.
4. Appraisal
Rights. The Stockholder agrees not to exercise any rights of appraisal or any dissenters’ rights that the Stockholder may have
(whether under applicable Law or otherwise) or could potentially have or acquire in connection with the Merger.
5. Survival
of Representations and Warranties. The representations and warranties contained herein shall survive the closing of the transactions
contemplated hereby until the expiration of the applicable statute of limitations, including extensions thereof.
6. Miscellaneous.
6.1 Term.
Notwithstanding any other provision of this Agreement or any other agreement, this Agreement and all obligations hereunder shall terminate
and cease to have any force or effect upon the earlier of (i) the Closing, (ii) any termination of the Merger Agreement in accordance
with its terms and (iii) unless waived in writing by the Stockholder to Parent, upon any Fundamental Amendment (the earliest date,
the “Termination Date”); provided, however, that Section 1.7 shall survive. For purposes
of this Agreement, “Fundamental Amendment” means the execution by the Company, Parent and Merger Sub of an amendment
to, or waiver by the Company, Parent or Merger Sub of any provision of, the Merger Agreement that reduces the amount of the Merger Consideration
or changes the form of the Merger Consideration.
6.2 Fiduciary
Duties. Notwithstanding anything in this Agreement to the contrary: (a) the Stockholder makes no agreement or understanding herein
in any capacity other than in the Stockholder’s capacity as a record holder and Beneficial Owner of Securities, and (b) nothing
herein will be construed to limit or affect any action or inaction by the Stockholder or any Representative of the Stockholder, as applicable,
serving on the Company Board or on the board of directors of any Subsidiary of the Company or as an officer of the Company or any of Subsidiary
of the Company, acting in such Person’s capacity as a director or officer of the Company or any Subsidiary of the Company, and any
such action shall not constitute a breach of this Agreement. To the extent that under Delaware law any fiduciary duty requirements apply
to Stockholder, Stockholder will be permitted to comply therewith, notwithstanding anything to the contrary in this Agreement.
6.3 Amendment
and Waiver. This Agreement may be amended by mutual agreement of the parties and may not be amended except by an instrument in writing
signed by the parties hereto. Subject to applicable Law, any party hereto may (a) extend the time for the performance of any obligation
or other act of the other party hereto, (b) waive any inaccuracy in the representations and warranties of the other party contained
herein or in any document delivered pursuant hereto, (c) waive compliance by the other party with any agreement contained herein
or (d) waive any condition to which its obligations are subject. Any such extension or waiver shall only be valid if set forth in
an instrument in writing signed by the party or parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by any
party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise of any other right hereunder.
6.4 Costs
and Expenses. Each party shall bear its own costs and expenses (including all legal, accounting, audit, due diligence and other out-of-pocket
expenses) incurred in connection with this Agreement and the transactions contemplated hereby.
6.5 Binding
Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
representatives, successors and assigns. The obligations and liabilities assumed in this Agreement by the parties hereto shall be binding
upon each party’s respective successors and assigns, which shall include successors by operation of Law, such as by merger.
6.6 Entire
Agreement; No Third Party Beneficiaries. This Agreement constitutes the entire agreement, and supersedes all other prior agreements
and understandings, both written and oral, between the parties, or any of them, with respect to the subject matter hereof. Nothing in
this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
6.7 Assignments.
Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, as a whole or
in part, by operation of law or otherwise, by any party without the prior written consent of the other party, and any such assignment
without such prior written consent shall be null and void; provided, however, that Stockholder may assign its rights and
obligations without such prior written approval in connection with a Transfer of Securities permitted under, and effected in compliance
with, the second sentence of Section 1.1. Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors and assigns.
6.8 Execution
in Counterparts. This Agreement may be executed in any number of counterparts and by different parties in separate counterparts (including
by facsimile, electronic mail or other means of electronic communication), each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
6.9 Notices.
All notices, consents and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by hand delivery, by prepaid overnight courier (providing written proof of delivery) or by confirmed electronic mail,
addressed as follows:
if to Parent:
c/o Shoreview Capital Partners IV, L.P.
222 South Ninth Street, Suite 3300
Minneapolis, Minnesota 55402
Email: tdovidio@shoreview.com
Attention: Attention: Thomas D’Ovidio
with a copy (which shall not constitute notice) to:
Sidley Austin, LLP
One South Dearborn Street
Chicago, Illinois 60603 Email: jnsmith@sidley.com and mstoker@sidley.com
Attention: Jeffrey N. Smith and Matthew D. Stoker
if to the Stockholder:
Richard A. Horowitz
c/o Moomjiam, Waite & Coleman, LLP
350 Jericho Turnpike Suite 104
Jericho, New York 11753
Email: gmoomjian@mwcllp.com
Attention: Gary T. Moomjian
with a copy (which shall not constitute
notice) to:
Moomjian, Waite & Coleman,
LLP
350 Jericho Turnpike Suite 104
Jericho, New York 11753
Email: gmoomjian@mwcllp.com
Attention: Gary T. Moomjian
or to such other address or electronic mail address for a party as
shall be specified in a notice given in accordance with this Section 6.9; provided that any notice received by electronic
mail or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) or on any
day that is not a Business Day shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business
Day; provided, further, that notice of any change to the address or any of the other details specified in or pursuant to
Section 6.9 shall not be deemed to have been received until, and shall be deemed to have been received upon, the later of
the date specified in such notice or the date that is five Business Days after such notice would otherwise be deemed to have been received
pursuant to this Section 6.9.
6.10 Governing
Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated
hereby shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to the conflicts
of laws principles of the State of Delaware or any other jurisdiction.
6.11 Further
Assurances. The parties to this Agreement agree to cooperate and to execute and deliver such instruments and take such further actions
as any other party to this Agreement may, from time to time, reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
6.12 Waiver
of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.13 Submission
to Jurisdiction; Service of Process. Each of the parties irrevocably agrees that any legal action or proceeding arising out of or
relating to this Agreement brought by any other party or its successors or assigns shall be brought and determined in the Delaware Court
of Chancery and any state appellate court therefrom within the State of Delaware (unless the Delaware Court of Chancery shall decline
to accept jurisdiction over a particular matter, in which case, in any Delaware state or federal court within the State of Delaware),
and each of the parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to
its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement
and the transactions contemplated hereby. Each of the parties agrees not to commence any action, suit or proceeding relating hereto in
any court other than the courts of the State of Delaware, as described above, other than actions in any court of competent jurisdiction
to enforce any judgment, decree or award rendered by such court. Each of the parties further agrees that notice as provided herein shall
constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties
hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise,
in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that
it is not personally subject to the jurisdiction of the courts of the State of Delaware, as described above, for any reason, (b) that
it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether
through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise)
and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of
such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
6.14 Interpretation.
When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for convenience of reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the
circumstances require. The words “include,” “includes” and “including” and words of similar import
when used in this Agreement will mean “include, without limitation,” “includes, without limitation” or “including,
without limitation,” unless otherwise specified. The word “or” shall not be exclusive. The term “parties”
means Parent and Stockholder, and “party” means either of them. Each party agrees that it has been represented by counsel
in connection with this Agreement and that any rule of law or any legal decision that would require interpretation of any claimed
ambiguities in this Agreement against the drafting party has no application and is hereby expressly waived.
6.15 Relationship
of Parties. Nothing contained herein shall establish any fiduciary, partnership, joint venture or similar relationship between or
among the parties hereto except to the extent otherwise expressly stated herein or therein.
6.16 Severability.
Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable
in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein,
so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to
any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated
as originally contemplated to the fullest extent possible.
6.17 Enforcement.
The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly, each party shall be entitled to specific performance of
the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in the courts of the State of Delaware, as described in Section 6.13, this being in addition
to any other remedy to which such party is entitled at law or in equity. Each of the parties hereby further waives any requirement under
any law to post security as a prerequisite to obtaining equitable relief.
6.18 Effect
of Termination. In the event of termination of this Agreement pursuant to Section 6.1, this Agreement shall become void
and of no effect with no liability on the part of either party; provided, however, no such termination shall relieve any
party from any liability for any willful breach of this Agreement occurring prior to termination, and the provisions of Section 1.7
and this Article 6 (Miscellaneous) shall survive any such termination.
[The rest of this page has intentionally
been left blank.]
IN WITNESS WHEREOF, this Agreement
has been duly executed as of the day and year first above written.
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Tools AcquisitionCo, LLC |
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By: |
/s/ Thomas D’Ovidio |
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Name: |
Thomas D’Ovidio |
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Title: |
Vice President, Assistant Treasurer, Assistant Secretary |
[Signature Page to Voting Agreement]
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STOCKHOLDER: |
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/s/ Richard A. Horowitz |
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Richard A Horowitz |
[Signature Page to Voting Agreement]
Exhibit 99.2
October 13, 2023
The Board of Directors of P&F Industries, Inc.
445 Broadhollow Road, Suite 100
Melville NY, 11747
Attention: Mitchell Solomon, Lead Independent Director
To the Board of Directors:
Reference is made herein to that certain: (1) letter agreement
(the “Existing Letter Agreement”), dated as of February 14, 2019, by and between myself and P&F Industries, Inc.
(the “Company”), (2) Agreement and Plan of Merger (the “Merger Agreement”), dated as of the
date hereof, by and among the Company, Tools AcquisitionCo, LLC (“Parent”) and Tools MergerSub, Inc. and (3) Voting
and Support Agreement (“Voting Agreement”), dated as of the date hereof, by and between myself and Parent.
The Company and I agree that:
| • | In connection with any vote of securities of the Company that is subject to Section 1.5 of the Voting Agreement (while such Voting
Agreement is in effect in accordance with its terms), I will cause any “excess shares” (as defined in the Existing Letter
Agreement) to be voted proportionately in accordance with the vote of all holders of Common Stock (other than shares held by me or any
other 13(d) filer); |
| • | Any vote of securities of the Company that is subject to Section 1.5 of the Voting Agreement (while such Voting Agreement is
in effect in accordance with its terms) shall be deemed for purposes of Sections 2, 3 and 4 of the Existing Letter Agreement to be irrevocably
approved for all purposes by all of the independent directors of the Company and any Adverse Recommendation Change (as defined in the
Merger Agreement) shall not affect such irrevocable approval. |
Except as modified above, the Existing Letter Agreement shall remain
unmodified and in full force and effect. If I violate or announce or demonstrate a plan to violate any of the foregoing covenants, I
consent to any of: (1) the independent directors or (2) Parent, as an express third party beneficiary, taking action on behalf
of the Company to enforce the foregoing. I consent to the jurisdiction of the courts of Delaware. This agreement shall bind my successors
and assigns.
Very truly yours,
| /s/ Richard A. Horowitz |
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| Richard A. Horowitz |
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ACCEPTED:
Mitchell Solomon, on behalf of the Board of
Directors
P and F Industries (NASDAQ:PFIN)
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