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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
P & F INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 22-1657413
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification
Number)
300 Smith Street
Farmingdale, New York 11735
(Address of principal (zip code)
executive offices)
P & F Industries, Inc.
1981 Incentive Stock Option Plan and
1992 Incentive Stock Option Plan
(Full title of the plans)
Leon D. Feldman
Executive Vice President
P & F Industries, Inc.
300 Smith Street
Farmingdale, New York 11735
(516) 694-1800
(Name and address, including zip code, and
telephone number, including area code, of agent for service)
COPY TO:
Neil Novikoff, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
(212) 821-8000
The Exhibit Index is located on page 7
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered Registered share(1) price(1) registra-tion fee
- ------------------------
Class A Common Stock,
par value $1.00 per
share 930,000 $5.66 $5,263,800 $1,595
- ----------------------
</TABLE>
(1) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act") based on the average of the high and low sales
prices of the Class A Common Stock quoted on the Nasdaq National Market
on February 13, 1997.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and
Exchange Commission (the "Commission") by P & F Industries, Inc., a Delaware
corporation (the "Company"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995;
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1996, June 30, 1996 and
September 30, 1996; and
(c) The description of the Class A Common Stock of the
Company, par value $1.00 per share, registered on
Form 8-A, dated April 6, 1987, filed pursuant to
Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
All reports filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of the filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference in this
Registration Statement shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference in this Registration Statement modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the
"DGCL") empowers a Delaware corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. A corporation may, in
advance of the final disposition of any civil, criminal, administrative or
investigative action, suit or proceeding, pay the expenses (including attorneys'
fees) incurred by any officer, director, employee or agent in defending such
action, provided that the director or officer undertakes to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by the corporation. A corporation may indemnify such person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
A Delaware corporation may indemnify officers and directors in
an action by or in the right of the corporation to procure a judgment in its
favor under the same conditions, except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to be liable to
the corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him or her against the expenses (including attorneys' fees) which he
or she actually and reasonably incurred in connection therewith. The
indemnification provided is not deemed to be exclusive of any other rights to
which an officer or director may be entitled under any corporation's by-laws,
agreement, vote or otherwise.
ARTICLE VII of the Company's By-Laws (the "By-Laws") provides
that the Company shall indemnify, upon a determination that such indemnification
is proper, each person who is or was a director, officer, employee or agent of
the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, to the fullest extent
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permitted under Section 145 of the DGCL. Indemnification shall
be made by the Company upon a determination that indemnification is proper in
the circumstances because the applicable standard of ARTICLE VII of the By-Laws
has been met. Such determination shall be made (i) by the Board by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (ii) if such quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the stockholders.
The indemnification provided by the By-Laws shall not limit
the Company from providing any other indemnification or advancement of expenses
permitted by law nor shall it be deemed exclusive to any rights to which a
person seeking indemnification or advancement of expenses may be entitled under
any by-law, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his official capacity, and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent of the Company and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
The Company maintains officers' and directors' liability
insurance for the benefit of its officers and directors.
The foregoing statements are subject to the detailed
provisions of Section 145 of the DGCL and ARTICLE VII of the Company's By-Laws.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
5 Opinion of Willkie Farr & Gallagher.
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Willkie Farr & Gallagher (contained in
Exhibit 5).
24 Powers of Attorney (contained in the signature pages of
this Registration Statement).
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Item 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That for the purposes of determining any liability under
the Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Farmingdale, State of New York, on the 18th day
of February, 1997.
P & F INDUSTRIES, INC.
By:/s/ Richard A. Horowitz
Richard A. Horowitz
Chairman of the
Board of Directors
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Richard A. Horowitz and Leon D.
Feldman, and each of them, his or her true and lawful attorney-in-fact, with
full power of substitution, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorneys-in-fact, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
<S> <C> <C>
/s/ Sidney Horowitz Director February 18, 1997
Sidney Horowitz
/s/ Leon D. Feldman Treasurer and Director February 18, 1997
Leon D. Feldman (Principal Financial
Officer and Principal
Accounting Officer)
/s/ Richard A. Horowitz Chairman of the February 18, 1997
Richard A. Horowitz Board and President
(Principal Executive
Officer)
/s/ Arthur Hug, Jr. Director February 18, 1997
Arthur Hug, Jr.
/s/ Robert L. Dubofsky Director February 18, 1997
Robert L. Dubofsky
/s/ Earle K. Moore Director February 18, 1997
Earle K. Moore
<PAGE>9
Signature Capacity Date
/s/ Marc A. Utay Director February 18, 1997
Marc A. Utay
</TABLE>
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit Page
5 Opinion of Willkie Farr & Gallagher.
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Willkie Farr & Gallagher
(contained in Exhibit 5).
24 Powers of Attorney (contained in
the signature pages to this Registration
Statement).
<PAGE>
Exhibit 5
Opinion of Willkie Farr & Gallagher
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Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
February 18, 1997
P & F Industries, Inc.
300 Smith Street
Farmingdale, New York 11735
Ladies and Gentlemen:
We have acted as counsel to P & F Industries, Inc., a
corporation organized under the laws of the State of Delaware (the "Company"),
with respect to the Company's Registration Statement on Form S-8 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission in connection with the registration under the Securities Act
of 1933, as amended, by the Company of 930,000 shares of Class A Common Stock,
par value $1.00 per share (the "Class A Common Stock"), 330,000 shares of which
are issuable upon exercise of stock options previously granted under the P & F
Industries, Inc. 1981 Incentive Stock Option Plan (the "1981 Plan") and 600,000
shares of which are issuable upon exercise of stock options granted or to be
granted under the P & F Industries, Inc. 1992 Incentive Stock Option Plan (the
"1992 Plan"). The 1981 Plan and the 1992 Plan are collectively referred to
herein as the "Plans".
As counsel for the Company, we have examined, among other
things, such originals and/or copies (certified or otherwise identified to our
satisfaction) of such documents, certificates and records as we deemed necessary
and appropriate for the purpose of preparing this opinion.
Based on the foregoing, we are of the opinion that the shares
of Class A Common Stock issuable upon the exercise of options issuable under the
Plans have been duly and validly authorized for issuance and, when issued in
accordance with the terms of the Plans for consideration in excess of $1.00 per
share, will be validly issued, fully paid, and nonassessable.
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We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
We are members of the Bar of the State of New York and do not
purport to be experts in the laws of jurisdictions other than the State of New
York, the General Corporation Law of the State of Delaware and the Federal laws
of the United States of America.
Very truly yours,
Willkie Farr & Gallagher
<PAGE>
Exhibit 23.1
Consent of BDO Seidman, LLP
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INDEPENDENT AUDITORS' CONSENT
P & F Industries, Inc.:
Farmingdale, New York
We hereby consent to the incorporation by reference and inclusion in the
Prospectus constituting a part of this Registration Statement of our report
dated March 14, 1996, relating to the consolidated financial statements and
schedule of P&F Industries, Inc. and subsidiaries appearing in the Company's
Annual Report on Form 10-K for the year ended December 31, 1995.
BDO Seidman, LLP
New York, New York
February 5, 1997
